Nevada Reports 1991 (107 Nev.) PDF

107 Nev.
1, 1 (1991)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 107
____________
107 Nev. 1, 1 (1991) Perez v. Las Vegas Medical Center
BERTHA PEREZ, Special Administratrix of the Estate of MARCO LOPEZ, and BERTHA
PEREZ, Natural Mother and Guardian of ARIANNY CELESTE LOPEZ, Appellant,
v. LAS VEGAS MEDICAL CENTER, DR. GREGORY, Respondents.
No. 19905
February 1, 1991 805 P.2d 589
Appeal from summary judgment in favor of respondents in action for wrongful death.
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Prisoner died of massive brain hemorrhage in county detention center. Wrongful death
action was commenced alleging medical malpractice by medical center and physician. The
district court granted defendants' motion for summary judgment. Plaintiffs appealed. The
supreme court, Rose, J., held that (1) loss of chance doctrine applied to determine whether
malpractice caused loss of chance of survival, and (2) whether defendants' alleged negligence
reduced substantial chance of prisoner's survival was fact question.
Reversed and remanded.
Steffen and Young, JJ., dissented.
Eva Garcia, Las Vegas, for Appellant.
Alverson, Taylor & Mortensen, and Bryan K. Gould, Las Vegas, for Respondents.
1. Judgment.
Pleadings and documentary evidence must be construed in light which is most favorable to party against whom motion for
summary judgment is directed.
2. Physicians and Surgeons.
In medical malpractice cases, plaintiff must generally prove that alleged negligence more probably than not caused ultimate injury.
Medical malpractice plaintiff creates fact questions regarding causation by presenting evidence tending to show, to reasonable
medical probability, that some negligent act or omission by health care provider reduced substantial chance of survival which would
have existed if patient had been given appropriate medical care, even though patient had less than fifty percent chance of survival due
to preexisting medical condition.
Under loss of chance doctrine in medical malpractice action, injury to be redressed by law is not defined as death itself, but,
rather, as decreased chance of survival caused by medical malpractice.
Even though patient may create fact question regarding causation requirement of medical malpractice action by showing loss of
chance of survival, rather than by showing that death was caused by alleged malpractice, recovery can only be made when patient
suffers death or debilitating injury and damages are discounted to extent that preexisting condition likely contributed to death or
serious debilitation.
6. Evidence.
Whether physician's and medical center's alleged failure to treat prisoner's aneurism or congenital arterial defect caused prisoner to
lose substantial chance of survival was fact question, even though prisoner may have died from preexisting condition anyway, where
expert testimony fairly implied that prisoner would have had substantial chance of survival through prompt and proper medical
treatment.
OPINION
By the Court, Rose, J.:
This is an appeal from a summary judgment entered against the appellant (hereinafter, Ms.
Perez) in a wrongful death action. The district court held that Ms. Perez could not prove that
the alleged negligence of the health care provider was the legal cause of the death, because
the decedent probably would have died anyway due to his serious preexisting medical
condition.
anyway due to his serious preexisting medical condition. We adopt the loss of chance
doctrine for medical malpractice cases, and under that doctrine Ms. Perez raised genuine
issues of material fact to the district court. Accordingly, we reverse the grant of summary
judgment and remand this case for further proceedings.
FACTS
The pertinent facts submitted by the parties in connection with respondents' motion for
summary judgment are as follows. On April 15, 1985, Marco Lopez, a prisoner at the Clark
County Detention Center, died of a massive brain hemorrhage, due apparently to an aneurysm
or a congenital defect in an artery.
Lopez had been detained and incarcerated on April 3, 1985. Two days later, after he
complained that he was ill, Lopez was taken to the Las Vegas Medical Center, which was
under contract to treat prisoners from the detention center. From April 5-9, Lopez was
confined in the medical ward. During this time physicians made no attempt to diagnose the
persistent headaches of which Lopez was complaining. Lopez was returned to jail. On April
15, Lopez was discovered in his cell by a nurse to be having seizures. Although the duty
physician, Dr. Gregory, was notified by telephone of the seizures, no examination or
treatment other than administration of valium and phenobarbital was given Mr. Lopez. A few
hours later, Mr. Lopez was found dead in his cell.
Based on this death, Ms. Perez brought the present lawsuit, alleging wrongful death due to
negligence on the part of the responsible medical providers. Dr. Tiholiz, a general practitioner
from Los Angeles, testified in a deposition on behalf of Ms. Perez. Dr. Tiholiz stated that
Lopez would have had a reasonable chance of surviving the hemorrhage if he had been
given prompt an proper medical care. Dr. Tiholiz admitted, however, that Lopez probably did
not have a greater then fifty percent chance of surviving the hemorrhage, even given proper
medical care. Additionally, Carolyn Sabo, a professor of nursing at the University of Nevada
Las Vegas, testified in a deposition that, if given proper medical care and diagnosis, Lopez
might have lived. An expert on behalf of the respondent, however, suggested that Mr.
Lopez' chances of surviving such a hemorrhage would be very slight.
Respondents moved for summary judgment against Ms. Perez on the ground that any
negligence by health care providers could not have been the legal cause of Lopez' death, since
Lopez probably would have died anyway due to his serious preexisting condition. Based on
the evidence stated above, the district court entered summary judgment in favor of
respondents. Ms. Perez appeals the order granting summary judgment.
entered summary judgment in favor of respondents. Ms. Perez appeals the order granting
summary judgment.
LEGAL DISCUSSION
[Headnote 1]
The question presented by this appeal is whether the district court erred by granting
respondents' motion for summary judgment on appellant's wrongful death claim alleging
medical malpractice. 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; properly supported factual allegations of the party opposing summary judgment must
be accepted as true. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433
(1989). Additionally, the pleadings and documentary evidence must be construed in the light
which is most favorable to the party against whom the motion for summary judgment is
directed. Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982).
Litigants are not to be deprived of a trial on the merits if there is the slightest doubt as to the
operative facts. Id.
First we address the question of respondents' entitlement to judgment as a matter of law.
Ms. Perez sued on a negligence theory. To prevail on a negligence theory, the plaintiff
generally must show that: (1) the defendant had a duty to exercise due care towards the
plaintiff; (2) the defendant breached the duty; (3) the breach was an actual cause of the
plaintiff's injury; (4) the breach was the proximate cause of the injury; and (5) the plaintiff
suffered damage. Beauchene v. Synanon Foundation, Inc., 151 Cal.Rptr. 796, 797
(Cal.Ct.App. 1979). In order to establish entitlement to judgment as a matter of law,
respondents must negate at least one of the above five elements of the plaintiff's case.
[Headnote 2]
The issue disputed on this appeal is whether Ms. Perez failed, as a matter of law, to
establish the existence of actual causation, i.e., that the alleged medical malpractice actually
caused the harm complained of. As a general rule in medical malpractice cases, the plaintiff
must prove that the alleged negligence more probably than not caused the ultimate injury
(rule of proving causation by a preponderance of evidence). See Orcutt v. Miller, 95 Nev.
408, 411-12, 595 P.2d 1191, 1193 (1979). Respondents argue that the evidence shows that
Mr. Lopez probably would have died anyway due to his serious preexisting physical
condition. Therefore, respondents contend, only the preexisting medical ailment, and not the
alleged medical malpractice, can be considered the probable, or preponderant, cause of
Lopez' death.
considered the probable, or preponderant, cause of Lopez' death. In short, respondents
contend that Ms. Perez cannot, as a matter of law, establish the element of actual causation
according to the traditional preponderance requirement.
The issue of first impression presented by respondents' argument is whether the
preponderance requirement for proof of causation operates to bar recovery in medical
malpractice cases where there is a fifty percent or greater chance that the patient's underlying
ailment caused the death (i.e., where the plaintiff has a fifty-fifty or lower chance of survival
due to a serious preexisting medical problem). There are many cases coming down on both
sides of this question. See Annotation, Medical Malpractice: Loss of Chance Causality, 54
A.L.R.4th 10 (1987). Applying the traditional preponderance requirement strictly, some
courts have held that plaintiffs with fifty-fifty or lower chances of survival due to their
original ailment cannot demonstrate that medical malpractice was the actual cause of the
death. See, e.g., Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla. 1984). Several
other courts have relaxed the traditional preponderance requirement for causation to allow
limited recovery under these circumstances. See, e.g., McKellips v. Saint Francis Hosp., Inc.,
741 P.2d 467 (Okl. 1987); Herskovits v. Group Health Co-op., 664 P.2d 474 (Wash. 1983).
[Headnote 3]
We conclude that the large line of cases which permits recovery under these circumstances
represents the better view. There are many good arguments against applying the
preponderance rule of causation strictly to bar recovery in cases such as this. See especially,
Herskovits, 664 P.2d at 486-87 (Pearson, J., concurring) (quoting King, Causation,
Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future
Consequences, 90 Yale L.J. 1353 (1981)). Of the various arguments against the position
urged by respondents, the following is most fundamental: the respondents' position would bar
any recovery in tort on behalf of the survivors of many potentially terminal patients, no matter
how blatant the health care provider's negligence. Through negligence, a physician or other
health care provider could reduce a patient's chances of survival from as high as fifty percent
to, for example, ten percent, and yet remain unanswerable in the law of tort. This position is
simply untenable. As the McKellips court explains:
Health care providers should not be given the benefit of the uncertainty created by their
own negligent conduct. To hold otherwise would in effect allow care providers to evade
liability for their negligent actions or inactions in situations in which patients would
not necessarily have survived or recovered, but still would have a significant chance
of survival or recovery.
in which patients would not necessarily have survived or recovered, but still would
have a significant chance of survival or recovery.
McKellips, 741 P.2d at 474. The disadvantages of the position urged by respondents are both
more certain and more severe than any disadvantages of the position we adopt today.
Additionally, it is important to recall that no cause of action will lie absent some instance of
negligence by the health care provider.
[Headnotes 4, 5]
As discussed in McKellips, courts have adopted various rationales in order to avoid the
harsh and unjustified result just discussed. We conclude that the best rationale supporting
recovery in these circumstances is the loss of chance doctrine. Under this doctrine, the
injury to be redressed by the law is not defined as the death itself, but, rather, as the decreased
chance of survival caused by the medical malpractice. Herskovits, 664 P.2d at 487 (Pearson,
J., concurring); see also Note, Medical Malpractice: The Right to Recover for the Loss of a
Chance of Survival, 12 Pepperdine L. Rev. 973 (1985) (authored by Patricia L. Andel). Of
course, the plaintiff or injured person cannot recover merely on the basis of a decreased
chance of survival or of avoiding a debilitating illness or injury; the plaintiff must in fact
suffer death or debilitating injury before there can be an award of damages. Additionally, the
damages are to be discounted to the extent that a preexisting condition likely contributed to
the death or serious debilitation. Specifically, [t]he amount of damages recoverable is equal
to the percent of chance [of survival] lost [due to negligence] multiplied by the total amount
of damages which are ordinarily allowed in a wrongful death action. McKellips, 741 P.2d at
476.
By defining the injury as the loss of chance of survival, the traditional rule of
preponderance is fully satisfied. In cases in which the plaintiff prevails, it can be said that the
medical malpractice more probably than not decreased a substantial chance of survival and
that the injured person ultimately died or was severely debilitated. Specifically, in order to
create a question of fact regarding causation in these cases, the plaintiff must present evidence
tending to show, to a reasonable medical probability, that some negligent act or omission by
health care providers reduced a substantial chance of survival given appropriate medical care.
In accord with other courts adopting this view, we need not now state exactly how high the
chances of survival must be in order to be substantial. We will address this in the future on
a case by case basis. There are limits, however, and we doubt that a ten percent chance of
survival as referred to in the example in the dissenting opinion would be actionable.
in the dissenting opinion would be actionable. Survivors of a person who had a truly
negligible chance of survival should not be allowed to bring a case fully through trial.
Perhaps more importantly, in cases where the chances of survival were modest, plaintiffs will
have little monetary incentive to bring a case to trial because damages would be drastically
reduced to account for the preexisting condition.
[Headnote 6]
Having addressed the applicable legal standards, we turn now to the question of whether
Ms. Perez presented sufficient proof in connection with the motion for summary judgment to
create a question of fact on the issue of causation. We conclude that she did. As in McKellips,
we do not require that the expert testimony specifically quantify the percentage chance of
survival in order to create a question of fact on causation; specific percentages are necessary
only at later stages in determining the precise measure of damages. McKellips, 741 P.2d at
475. In the present case, Dr. Tiholiz testified that Mr. Lopez had a reasonable chance of
survival given proper medical attention. We recognize that Mr. Lopez' preexisting condition
appears to have been grave indeed and that Dr. Tiholiz's opinion is not particularly strong or
specific. Nevertheless, under the summary judgment standards stated above, we must accept
this statement as true and, moreover, we must draw all inferences from this statement in a
manner which is favorable to the party opposing summary judgment. Interpreted in a manner
most favorable to Ms. Perez, Dr. Tiholiz's statement and other deposition testimony fairly
imply that, through prompt and proper decompression and other treatment, Mr. Lopez would
have had a substantial chance of survival. Because more than a slight doubt remains as to
Lopez' chances of survival, Ms. Perez was entitled to bring the issue of causation to trial.
Therefore, Ms. Perez succeeded in raising a genuine issue of material fact on the issue of
causation pursuant to the loss of chance doctrine and the motion for summary judgment was
improvidently granted.
The nature and quality of Mr. Perez' survival is not an issue with which we must concern
ourselves at this time. It was not fully explored below and not the basis for the district court's
decision. Further, Dr. Tiholiz, the plaintiff's expert, used the term survival without
qualification. Giving every reasonable inference to the appellant against whom summary
judgment was granted, we conclude that Dr. Tiholiz's unqualified use of the word survival
meant survival with a reasonable quality of life. If the respondents felt it was important to
explore what Dr. Tiholiz meant by survival, they could have examined further on this point.
The dissent expresses fears that the floodgates of litigation will be opened by this opinion.
Nothing of the sort will occur. Rather, the rule will give deserved redress in infrequent
situations similar to this case. And by adopting the loss of chance doctrine, a health care
provider will not be able to avoid responsibility for negligent conduct simply by saying that
the patient would have died anyway, when that patient had a reasonable chance to live.
For the reasons stated above in this opinion, the order granting respondents' motion for
summary judgment is reversed and the case remanded for further proceedings consistent
herewith.
Mowbray, C. J., and Springer, J., concur.
Steffen, J., with whom Young, J., joins, dissenting:
My review of the record reveals no sound basis for reversal even under the loss of
chance doctrine prematurely adopted by the majority. I would therefore affirm the order of
summary judgment.
The Facts
A recital of the relevant facts lends context to my analysis. Although this is an appeal from
summary judgment, I do not find in the record a basis for reversal based upon a dispute of
material facts.
Marco Lopez (Marco) died of a massive brain hemorrhage while in custody at the Clark
County Detention Center awaiting trial on cocaine trafficking charges. The hemorrhage was
apparently due to a congenital defect in an artery in Marco's brain.
Marco experienced headaches during the period of his confinement from April 3, 1985
until the date of his death on April 15 of the same year. Doctors at the center examined him,
but performed no extensive tests and failed to recognize the severity of Marco's condition.
Marco eventually convulsed, slowly lapsed into a coma, and died.
Appellant contends that proper medical care, preliminary diagnosis, and subsequent
emergency treatment would have given Marco a reasonable chance of survival. The facts of
record indicate that the nature and circumstances of Marco's condition provided very little
prospect for his survival irrespective of the quality and extent of any medical measures that
were taken or could have been taken. Nevertheless, appellant argues that factual issues remain
concerning negligence and causation. In addition, appellant urges her entitlement to further
discovery and the benefit of the loss of chance or increased risk of harm doctrine in her
action against respondents.
Turning to the facts in greater detail, and in a light most favorable to appellant, it is
apparent to me why appellant's action against the Las Vegas Medical Center (LVMC) and the
treating physician, respondent Maurice Gregory, should fail as a matter of law.
According to appellant, Marco was detained and incarcerated on April 3, 1985. During the
booking process, Marco complained that he was ill, but he received no treatment at the time.
Two days later, Marco was taken to LVMC after complaining that he was suffering from
headaches, stiff neck and a fever, and was too ill to eat. At this time, two different doctors
examined Marco and observed that his blood pressure was elevated. One doctor diagnosed
his condition as the flu and the other as a cervical strain. It appears that neither diagnosis was
made with the benefit of x-rays or a spinal examination to determine the basis for limited
neck movement or rotation.
Marco was confined in the medical ward of the center from April 5 to April 9, 1985.
During this time his headaches were unrelenting and no attempt, by examination or
otherwise, was made to determine their cause. On April 15, Marco was placed on sick call
after complaining of headaches, and an officer made a notation that Marco should be
watched.
At approximately 4:40 p.m. on April 15, Marco commenced having seizures. Dr. Gregory
was informed of this development by telephone and, without examining the sick inmate,
ordered that he receive valium and phenolbarbital. Appellant also asserts that Marco began
slipping into a coma around 5:30 p.m. but was ignored for another five hours and twenty
minutes. Apparently, the duty nurses did nothing for him after administering the anti-seizure
medication and even failed to regularly take his vital signs. At some point around 11:00 p.m.
that evening, Dr. Gregory was summoned and, after examining Marco, pronounced him dead.
Dr. Henry Soloway performed the autopsy and determined that Marco expired from a
massive intercerebral hemorrhaging that in his opinion was caused by either an aneurysm or a
congenital arteriovenous malformation.
1

One of appellant's experts, Carolyn Sabo, a professor of nursing at the University of
Nevada at Las Vegas, testified by deposition that LVMC's nursing staff had improperly
recorded Marco's vital signs and that absent that dereliction Marco might still be alive.
__________

1
Dr. Soloway's diagnosis was disputed by experts representing both appellant and respondents. Appellant's
experts contended that the post mortem findings included no description of an aneurysm. Respondents' expert
had similar reservations and stated that evidence of either of Dr. Soloway's findings would have been palpable if
a rupture had occurred in accordance with Dr. Soloway's surmise.
vital signs and that absent that dereliction Marco might still be alive. However, Professor
Sabo admitted that she was not qualified to express an opinion concerning the effectiveness
of surgical intervention in saving Marco's life.
Appellant's other expert, Dr. Ivan Tiholiz, opined in his deposition that the medical
attention and care provided to Marco were negligent and below the appropriate standard of
care. Dr. Tiholiz also testified that Marco might have lived if he had received proper medical
treatment, including decompression. However, Dr. Tiholiz admitted that even if Marco had
received medical attention of acceptable quality, it was more likely than not that Marco's
hemorrhage would have been fatal.
2

Respondents' expert, Dr. Richard Lewin, a neurosurgeon, testified by deposition that
surgical intervention could not have prevented Marco's death, and that even if Marco had a
one percent chance of survival, which he doubted, survival would have meant life on a
respirator or as a quadriplegic.
The district court entered summary judgment in favor of respondents on the ground that
appellant could not prove that the alleged negligence caused Marco's death.
Discussion
In Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191 (1979), we held that in order for a plaintiff
to avoid summary judgment in an action based upon medical malpractice, the plaintiff must
establish:
(1) the accepted standard of medical care or practice, (2) that the doctor's conduct
departed from the standard, and (3) that his [the doctor's] conduct was the legal cause of
the injuries suffered (citations omitted).
Id. at 411, 595 P.2d at 1193.
We further held in Orcutt that an expert's statement that the negligent medical treatment
complained of probably precipitated the ultimate condition was enough to raise a genuine
issue of material fact for trial. Id. at 412, 595 P.2d at 1193. Under this standard, even if the
standard of care was established, and even if the care and monitoring Marco received fell
below that standard of care, I do not believe that the final requirement, that of legal
causation, can be shown.
__________

2
When asked if Marco's chance of survival was better than fifty percent given his condition, Dr. Tiholiz
stated that he probably did not have that high of a chance. Although appellant claims that the doctor later
indicated that Marco's chance of survival would not be less than fifty percent either, I have reviewed the doctor's
depositional testimony of record, and cannot agree with appellant's contention. Moreover, Dr. Tiholiz did not
voice an opinion as to what he meant by the term survival.
of care, I do not believe that the final requirement, that of legal causation, can be shown.
Appellant asserts that her expert's testimony that Marco had a reasonable chance of
survival is equivalent to or stronger than the probably precipitated expert testimony in
Orcutt upon which this court reversed summary judgment. However, appellant's expert's
testimony, when examined in context, indicates that the undefined, reasonable chance of
survival, falls short of the threshold showing necessary to raise the asserted chance of
survival to an issue which may properly be submitted to a jury.
Dr. Tiholiz testified that with proper non-negligent medical treatment and decompression,
Marco might have lived. However, he also testified that even with proper medical attention,
more likely than not, Marco's hemorrhage would have been fatal. Upon further questioning,
he also testified that Marco had less than a fifty percent chance of survival.
Respondents' expert opined that there was less than a one percent chance of survival, given
Marco's congenital condition, and then qualified survival to mean living as a quadriplegic
or while continually sustained by a respirator. Thus, there was an apparent agreement among
the experts that whatever Marco's chances of survival, they were less than fifty percent.
The majority, focusing on testimony indicating that Marco was deprived of an undefined
chance of survival because of inadequate medical care, seize the moment to adopt the loss of
chance doctrine. I suggest that the majority's ruling is both premature and inapplicable to the
instant case.
Concededly, the record reflects sufficient evidence to avoid summary judgment on the
issue of professional negligence. Causation, however, when analyzed in connection with the
real injury, is not supported in the record. The entire thrust of the majority opinion is that the
decedent, Marco, was deprived of some prospect of surviving his affliction by the negligence
of the health care providers. Unfortunately, the majority ignores the state of the record
concerning the nature and meaning of the survivability value, the attainment of which was
assertedly attenuated by respondents' negligence.
The uncontroverted evidence reveals that the prospect of survival to Marco meant
nothing more than continued life on a respirator or as a quadriplegic. I strongly suggest that
the loss of any chances for such a survival, whether one percent or fifty percent, hardly
supports a legally cognizable cause of action. Obviously, where survivability itself has little
or no value, the loss of a chance to survive has even less value. In any event, I suggest that the
majority rule is doubly bad in the instant case. On the record, Marco had less than a fifty
percent chance of survival irrespective of the quality of his medical care, and his chances
for a meaningful survival were virtually non-existent.
the record, Marco had less than a fifty percent chance of survival irrespective of the quality of
his medical care, and his chances for a meaningful survival were virtually non-existent. If
doctors are to be subjected to liability under such circumstances because of the majority's loss
of chance doctrine, how many fewer physicians will be willing to treat patients who have
poor survivability or quality of survivability prognoses? To pose the question suggests the
answer. Physicians, who have in many instances altered the nature and extent of their
practices because of the mounting costs and personal trauma associated with maintaining
medical negligence coverage and defending lawsuits that far too frequently are lacking in
merit, will have little or no incentive to place their careers at risk under such tenuous
prospects for successful treatment.
I suggest that the judiciary has a serious obligation to consider the law and economics
aspects of its rulings. Moreover, I am also of the opinion that unless the judiciary maintains a
responsible level of human exposure under the tort system, our lawyers of tomorrow will not
have the opportunity to seek justifiable redress for clients under a legal system comparable to
that which presently exists. Today's ruling exposes medical practitioners to incremental
liability for negligently lessening the chance of a patient (who, at best has less than a fifty
percent chance of survival) to survive without considering the meaning of survival as it
relates to the specific patient. This is precisely why, in my opinion, the majority has
prematurely and without an adequate factual foundation, adopted the loss of chance doctrine.
Based upon the record before this court, there is no showing that respondents did anything
to lessen the decedent's chances for a meaningful survival. From a vantage point according
favor to appellant's position, it could be said that a factual issue exists as to whether
respondents' actions or omissions created an added risk to Marco's chances of surviving his
condition. It is to be emphasized that the respondents did nothing to create Marco's condition.
However, the factual basis for an argument exists that respondents' inattention or negligent
failure to properly diagnose Marco's condition increased his risk of non-survival. That fact is
the predicate for the majority's ruling. The majority maintains that respondents may be held
liable for decreasing Marco's chances of surviving his condition.
If we were faced with proper case involving the issue addressed by the majority, there
could perhaps be a persuasive argument made for adopting the loss of chance doctrine in
certain cases of professional negligence. In the instant case, however, the majority is
subjecting respondents to the expense and trauma of a trial when the record provides no basis
for concluding that respondents' conduct had any causal relationship or effect on Marco's
prospects for a meaningful survival.
respondents' conduct had any causal relationship or effect on Marco's prospects for a
meaningful survival. In that regard, I emphasize again that appellant's expert opined that even
the presence of proper medical attention would have been, more likely than not, ineffective in
preventing Marco's death; and the expert also failed to define the quality of Marco's existence
if he had survived his condition. Thus, the neurosurgeon's conclusion that Marco's one
percent chance of survival meant survival on a respirator or as a quadriplegic stands
unrebutted and unchallenged. Surely we may assume that if appellant had obtained medical
evidence controverting the neurosurgeon's prognosis concerning the nature of Marco's
unlikely survival, she would have presented it to the district court.
On the record, then, the majority concludes that respondents may be held liable for
decreasing Marco's chance to survive as a quadriplegic or on a respirator. I do not believe that
an extension of liability to such lengths is justified. Moreover, I fear that the majority ruling
will add impetus to organized efforts on the part of the medical profession and insurance
industry to restructure the tort system or otherwise limit the prospects or amount relief
available to parties truly and provably aggrieved by acts of medical negligence.
Having expounded the reasons why I believe the majority has both prematurely adopted
the loss of chance doctrine and arrived at the wrong result under the application of the
doctrine, I turn now to the reasoning of the majority opinion and suggest that an analysis of
the majority's logic illustrates additional concerns regarding the conclusions reached.
In adopting the loss of chance doctrine, the majority asserts that the injury to be
redressed by the law is not defined as the death itself, but, rather, as the decreased chance of
survival caused by the medical malpractice. In terms of causation, the majority now holds
that causation regarding the ultimate injury, in this instance, death, is not an element of the
cause of action. Rather, the issue is whether it can be shown by a preponderance of the
evidence that a health care provider's negligence decreased the patient's chance to survive. If
expert medical evidence revealed that a patient's chance of surviving his or her condition was,
for example, ten percent, then the health care provider could be held liable for negligently
reducing the survival prospects from ten to four percent. The fact that the patient had a ninety
percent chance of succumbing to his or her affliction has no relevance under the majority's
rule. Under the facts of this case, an abandonment of the need to show a causal nexus
between negligence and injury before liability can be imposed represents a worrisome
departure from established tort law basing liability upon a negligent breach of duty which is
the proximate cause of the injury.
upon a negligent breach of duty which is the proximate cause of the injury. It is analogous to
imposing liability for injury resulting from a collision where the defendant's only act of
negligence was in forgetting to carry his driver's permit. In other words, if the patient's
condition was such that he would have had only a ten percent chance of surviving under the
best of medical care, that fact would neither be a required element of proof or even a relevant
consideration under the majority's ruling. Under such circumstances, the fact that the
physician's negligence reduced the theoretical ten percent chance of survival, but otherwise
had no causal effect on the patient's demise would have no bearing on the plaintiff's right to
recover.
The majority seeks to buttress its ruling with a sop, stating that [o]f course, the plaintiff or
injured person cannot recover merely on the basis of a decreased chance of survival or of
avoiding a debilitating illness or injury; the plaintiff must in fact suffer death or debilitating
injury before there can be an award of damages. Obviously, if the patient suffers no injury,
there could be no basis for damages. The problem, however, is that if death or injury results,
the majority rule does not concern itself with the issue of whether the defendant physician's
conduct caused or contributed to the death or injury. The basis for liability is a composite of
negligence and a resultant reduction in the chance to avoid death or injury.
The majority rule produces a formula for determining damages which, in my view, is both
inconsistent and highly speculative. If a patient suffers death or injury, the prospects for
which have been increased by medical negligence, the majority rule provides that the
damages are to be discounted to the extent that a preexisting condition likely contributed to
the death or serious debilitation. Specifically, [t]he amount of damages recoverable is equal
to the percent of chance [of survival] lost [due to negligence] multiplied by the total amount
of damages which are ordinarily allowed in a wrongful death action.' (Quoting McKellips v.
Saint Francis Hosp., Inc., 741 P.2d 467, 476 (Okl. 1987). Using the hypothetical posed above,
if the patient had a ten percent chance of survival reduced to four percent by a physician's
negligence, and if the patient had a sizable earnings history and surviving loved ones, total
damages based upon those ordinarily allowed in wrongful death actions would amount,
hypothetically, to $1,000,000.00. The formula would then multiply the total damage figure by
six percent, which would be the percentage by which the patient's chance of survival had been
reduced by the defendant's negligence. The resultant damages imposed on the defendant
physician would be $60,000.00. This result is inconsistent with traditional tort concepts,
because there may be no causal relationship at all between the physician's negligence
and the patient's death.
result is inconsistent with traditional tort concepts, because there may be no causal
relationship at all between the physician's negligence and the patient's death. It would in fact
be true under the preceding hypothetical that there was ninety-four percent probability that the
physician's negligence had no more to do with the patient's death than the failure of a
defendant driver to have his driver's permit available at the scene of a collision where injuries
occurred without any causative negligence on the defendant's part. Moreover, the majority
formula is unsound in that it fails to differentiate between the value of a chance for surviving
under circumstances of a complete recovery and the value of a chance for survival as a
ventilator-dependent quadriplegic. Marco began his incarceration in possession of all his
faculties, and the majority formula would apparently subject respondents to a fraction of
damages ordinarily allowed in a wrongful death action without regard or allowance for the
fact that survival for Marco did not include prospects for a complete or substantial recovery.
If, in fact, the majority had recognized the great disparity in the meaning of survival with full
recovery and survival of the nature and quality facing Marco (assuming, of course, he could
have survived), it should be evident why an affirmance of summary judgment in this case
would be appropriate.
The majority concludes that [b]y defining the injury as the loss of chance of survival, the
traditional rule of preponderance is fully satisfied. I suggest that the rule concerning proof of
causation by a preponderance of the evidence is no more satisfied by the majority's
redefinition of injury than it would be if the majority had arbitrarily decided to equate
negligence with injury, thus allowing recovery for negligence in the abstract. As the court
held in Cooper v. Sisters of Charity of Cincinnati, Inc., 272 N.E.2d 97, 102 (Ohio 1971),
[l]oss of chance recovery, standing alone, is not an injury from which damages will flow.
Moreover, under Nevada's wrongful death statute, NRS 41.085, the basis for a wrongful death
claim is negligence or wrongful acts that cause the death of the decedent. There is no latitude
in the statute for shifting the basis for damages from conduct causing death to conduct
lessening the prospects for survival.
Particularly troubling, I suggest, is the majority's determination that in the future,
definitions of a substantial chance of survival will be determined by this court on appeal,
on a case by case basis. The majority seemingly would permit an action to go forward under
evidence of the slightest chance of survival on the theory that in cases where the chances of
survival are truly minimal, plaintiffs will have little monetary incentive to bring a case to
trial, because damages would be drastically reduced to account for the preexisting condition.
In the first place, I find it difficult to believe that any form of judicial system would subject
parties to a trial with no direction as to whether a minimum legal threshold of survivability
exists on the evidence until this court decides the issue on appeal. This type of case by case,
after the fact screening on appeal is not only a source of manufactured judicial inefficiency, it
subjects physicians to a most tortured form of procedure before reaching a basis for finality.
Secondly, to assume that the prospect of minimal damages would act as a deterrent to the
filing of lawsuits involving minimal chances of survival is, I believe, unrealistic. I suggest
that one of the most unfortunate and vexing aspects of medical malpractice litigation today is
the fact that too many attorneys who are unqualified to handle such complex cases are
subjecting physicians to hellish litigation that has little or no merit. Too often, such attorneys
proceed on the assumption that at the very least they will extract nuisance or harassment
value damages from the beleaguered physician. I suggest that the majority rule will provide
incentive for a proliferation of these types of suits because now it will not have to be shown
that the physician's actions had any causative effect on the ultimate injury or death of the
patient.
Finally, the majority have sub silentio adopted the premise that any showing of a chance of
survivability, irrespective of the meaning or quality of the survival prospect, will support a
cause of action against a physician whose conduct may have reduced the patient's chances of
survival. As mentioned previously, and emphasized again, such a ruling will predictably elicit
a reaction from the medical community either by way of significant numbers of refusals to
treat patients in such potential categories or a major effort to change or limit the existing tort
system as it applies to the area of medical negligence.
If evidence had been presented supporting the proposition that medical negligence
deprived Marco of a demonstrably significant chance for a meaningful recovery, then
summary judgment would have been improper. In my opinion, however, appellant has not
carried her burden under Orcutt or even shown that the respondents increased the risk of
harm to which Marco's condition subjected him and which eventually caused his death. The
size and force of the rupture suffered by Marco raises serious doubts concerning his ability to
survive despite respondents' efforts or lack thereof. I suggest, therefore, that the instant case is
an inappropriate precedent for determining the extent to which survival expectancies must be
demonstrated in future cases; here, no legally contemplated standard of sufficiency would be
satisfied by the evidence.
Moreover, at least until this court reviews an appropriate case for seriously considering
adoption of a carefully defined loss of chance doctrine, I find the view persuasive that in
order to comport with the standard of proof of proximate cause, plaintiff in a malpractice case
must prove that defendant's negligence, in probability, proximately caused the death.
Cooper, 272 N.E.2d at 103.
3

For the reasons noted above, I am convinced that appellant's contentions lack merit.
Accordingly, I would affirm the summary judgment entered by the district court.
____________
107 Nev. 17, 17 (1991) Co-operators Ins. v. Allstate Rent-A-Car
THE CO-OPERATORS INSURANCE COMPANY, Appellant, v. ALLSTATE
RENT-A-CAR, Respondent.
No. 21105
February 1, 1991 804 P.2d 1050
Appeal from order granting summary judgment to respondent. Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Driver of rental car negligently caused accident which injured two other people. The
district court granted summary judgment to rental agency, holding that driver's personal
policy applied. Appeal was taken. The supreme court held that driver's personal policy
applied.
Affirmed.
James E. Smith, Las Vegas, for Appellant.
Thompson & Harper, Las Vegas, for Respondent.
1. Insurance.
There is no statutory directive as to which automobile policy to apply in case of driver of rental car causing accident where driver
has personal policy and car is insured under policy of rental agency.
__________

3
It would appear to me that if the majority's loss of chance doctrine is just in the context of a medical
malpractice action, it would be equally just and applicable in such actions involving other professions, including
the legal profession. For example, if a disgruntled or unsuccessful litigant loses a case, and it could be shown
through expert testimony that there was a forty percent chance of winning the case, but the lawyer's negligent
efforts reduced the chance of winning by some degree, the litigant would be able to pursue an action based upon
the loss of chance doctrine adopted by the majority. Under the majority view, the injury would be the loss of
chance as opposed to the unfavorable verdict.
personal policy and car is insured under policy of rental agency. NRS 482.295, 690B.025.
2. Insurance.
In case in which there are conflicting policies and one policy explicitly defines its liability and other does not, policy with more
specific language controls.
3. Insurance.
Personal automobile policy of driver of rental car applied, rather than rental agency's policy insuring car, to accident caused by
driver; agency's rental contract had express insurance clause which provided that driver's personal insurance was primary, and driver's
policy did not have comparable clause. NRS 482.295, 690B.025.
OPINION
Per Curiam:
The driver of an Allstate Rent-a-Car (Allstate) rental car negligently caused an accident
which injured two other people. Two insurance policies applied to compensate the injured
people: (1) Allstate's self-insurance policy, and (2) the driver's personal policy issued by The
Co-operators Insurance Company (Co-operators). The issue presented on appeal is which of
the two insurers is primarily liable.
Facts
On March 13, 1989, Betty J. Roe rented a car from Allstate. Ms. Roe did not purchase the
full collision damage waiver or the personal accident coverage Allstate offered. While driving
the rental car, Ms. Roe failed to yield the right-of-way, causing an accident with two other
cars. The injured parties demanded payment for personal injuries sustained.
At the time of the accident, two insurance policies covered the car. Allstate insured the
rental car, as required by NRS 482.295.
1
Ms. Roe was also insured under her automobile
policy issued by Co-operators. This policy covers any automobile . . . while personally
driven by the insured.
On December 29, 1989, Co-operators filed a motion for summary judgment, arguing that
Allstate's policy was primary and should cover all costs resulting from the accident. Allstate
filed an opposition and counter-motion for summary judgment, requesting that the court
declare it {Allstate) only secondarily liable.
__________

1
NRS 482.295 Registration by short-term lessor: Proof of financial responsibility or qualification as a
self-insurer. The department shall not register a vehicle intended to be leased by a short-term lessor until the
owner demonstrates to the department his financial ability to respond to damages by:
1. Providing proof of financial responsibility as that term is defined in NRS 485.105; or
2. Qualifying as a self-insurer pursuant to NRS 485.380.
an opposition and counter-motion for summary judgment, requesting that the court declare it
(Allstate) only secondarily liable. The district court found Co-operators primarily liable and
granted Allstate's motion.
Discussion
Co-operators argues that (1) NRS 482.295 implies that the rental company's coverage is
primary, (2) Ms. Roe's insurance should be secondary because her rates may increase, and (3)
rental companies benefit from advertising that their cars are insured.
Allstate contends that NRS 690B.025 provides that the driver's personal insurance is
primary.
2
Allstate also argues that Ms. Roe agreed that her personal coverage would be the
primary insurance; part of Ms. Roe's rental contract stated:
Customer represents and warrants that customer has a policy of automobile liability
insurance in effect, . . . which insurance shall provide primary liability insurance
coverage. . . . Lessor agrees it has complied with NRS Section 482.295 to evidence its
ability to respond for damages. Lessor's duty to respond shall only be for liability in
excess of that covered by the customer's liability coverage.
[Headnote 1]
NRS 482.295, requiring rental car companies to insure their vehicles, is silent as to
whether a car rental company's insurance is primary or secondary coverage. NRS 690B.025
does not discuss car rental agencies, and a lessor or rental agency is not among the types of
businesses listed in the statute. Therefore, neither stature applies to this situation.
[Headnotes 2, 3]
Absent legislative directive, we must look to the individual policies in question. Where
one policy explicitly defines its liability, and the other does not, the policy with the more
specific language controls.
__________

2
NRS 690B.025 states in pertinent part:
Primary and excess coverage; garageman required to post notice.
1. If two or more policies of liability insurance covering the same motor vehicle are in effect when the motor
vehicle is involved in an incident which results in a claim against the policies:
(a) If the motor vehicle was being operated by a person engaged in the business of selling, repairing,
servicing, delivering, testing, road testing, parking or storing motor vehicles, or by his agent or employee while
in the pursuit of that business, to policy issued to that business shall be deemed to be primary and any other
policy shall be deemed to provide excess coverage.
2. The provisions in subsection 1 may be modified but only by a written agreement signed by all insurers
who have issued policies applicable to a claim described in subsection 1 and by all insureds under those policies.
liability, and the other does not, the policy with the more specific language controls. Allstate's
rental contract has an express insurance clause which provides that Ms. Roe's personal
insurance is primary. Ms. Roes' insurance policy does not have a comparable clause.
Therefore, Allstate's clause controls, and Ms. Roe's personal insurer, Co-operators, is
primarily liable.
Conclusion
We affirm the district court's granting of summary judgment in favor of Allstate. Because
neither NRS 482.295, nor NRS 690B.025 applies, we look to the language of the policies
themselves. Since Allstate's policy limits liability to excess coverage and Co-operators does
not, Allstate's obligations fall secondary to that of Co-operators.
____________
107 Nev. 20, 20 (1991) 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
February 7, 1991 805 P.2d 601
Appeal and cross-appeal from an order 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, 106 Nev. 758, 801 P.2d 1360 (1990), reversed and remanded.
Mortgagee's petition for rehearing was granted. The supreme court held that mortgage was
entitled to have original deeds describing wrong condominium units reformed so that deed
would match correct deeds of trust encumbering units.
Petition for rehearing granted; opinion modified.
Stephens, Knight & Edwards, Reno, for Appellant and Cross-Respondent.
Margo Piscevich and Kimberly Palmer Fenner; Hale, Lane, Peek, Dennison & Howard,
Reno, for Respondent and Cross-Appellant.
Reformation of Instruments.
Mortgagee was entitled to reformation of original deed where, although deeds of trust accurately described condominium unit,
deeds of trust did not match original deeds transferring properties.
OPINION ON REHEARING
Per Curiam:
On November 28, 1990, this court issued an opinion reversing the decision of the district
court and remanding this matter with instructions. See First Federal v. Racquet Club
Condominiums, 106 Nev. 758, 801 P.2d 1360 (1990). Appellant, First Federal Savings and
Loan Association of Nevada, has petitioned for rehearing. Because this court misapprehended
a material matter of fact, we grant this petition for rehearing, and we modify the mandate of
our former opinion. See NRAP 40(c).
This case involves the ownership of two condominiums. Originally, a partnership named
Western Camino Leasing, which was comprised of the Benners and the Sampaulesis, owned
both condominiums. The partnership executed deeds transferring the properties to the
Benners and the Sampaulesis. This was done to facilitate a transaction between these parties
and the appellant bank. These original deeds contained the error that led to this litigation. The
property transferred to the Benners actually belonged to the Sampaulesis, and visa versa.
At the same time, deeds of trust were executed in favor of the bank with respect to the two
properties involved. These deeds of trust correctly reflected the ownership interests of the
individual parties in the condominiums. Thus, the original deeds, which contained the error,
did not match the deeds of trust, which did not contain any error.
The Sampaulesis took possession of Unit 49, and the Benners took possession of Unit 50
as correctly reflected in the deeds of trust. Respondent foreclosed on the properties to satisfy a
lien which arose from the non-payment of association fees, and the bank foreclosed its
interests which arose from the deeds of trust. Because First Federal's deeds of trust did not
match the original deeds transferring the properties to the Benners and the Sampaulesis,
respondent claimed that First Federal obtained no interest in the properties through its
foreclosures. First Federal sought reformation of the original deeds, not the deeds of trust.
The district court refused to reform the original deeds, and this appeal followed.
The court correctly held in its prior opinion that the district court erred in refusing to
reform the incorrect deeds.
court erred in refusing to reform the incorrect deeds. Accordingly, we reaffirm our opinion
reversing the decision of the district court. Nevertheless, because this court was of the
mistaken belief that the deeds of trust, rather than the original deeds, contained the error that
caused this litigation, this court's prior opinion orders the district court to reform the bank's
deeds of trust.
Accordingly, we vacate that portion of our prior opinion that requires the district court to
reform First Federal's deeds of trust. We remand this matter to the district court with
instructions to reform the original deeds issued from Western Camino Leasing to the Benners
and the Sampaulesis so that those deeds reflect the true ownership interests of the Benners
and the Sampaulesis in the properties involved.
____________
107 Nev. 22, 22 (1991) Ramadanis v. Stupak
GUS RAMADANIS and MARATHON, INC., Appellants v. BOB STUPAK and BOB
STUPAK, INC., dba BOB STUPAK'S VEGAS WORLD HOTEL AND CASINO,
Respondents.
No. 20850
February 7, 1991 805 P.2d 65
Appeal from district court judgment regarding prejudgment interest. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Tenants filed suit against hotel for wrongful eviction and false arrest of tenant's principal.
The district court entered judgment on jury verdict for tenants, but denied postjudgment
motions for costs and attorney fees. Tenants appealed. The supreme court, 104 Nev. 57, 752
P.2d 767 (1988), held that tenants were entitled to prejudgment interest, and remanded. The
district court awarded prejudgment interest, and tenants appealed method of interest
calculation. The supreme court held that prejudgment interest was properly computed by
deducting total amount of settlement from judgment, and by then calculating prejudgment
interest.
Affirmed.
Peter L. Flangas, Las Vegas, for Appellants.
Laura Wightman FitzSimmons, Las Vegas, for Respondents.
Interest.
Prejudgment interest was properly computed by deducting amount of settlement from judgment, and then calculating prejudgment
interest, rather than by applying algebraic calculation in which settlement would be presumed to include both principal and interest to
date of settlement.
OPINION
Per Curiam:
Appellants Gus Ramadanis (Ramadanis) and Marathon, Inc. (Marathon) sued Respondents
Bob Stupak, Bob Stupak Inc., dba Vegas World Hotel and Casino (Stupak) and Chris
Karamanos (Karamanos) for wrongful eviction and false arrest in 1982. In 1986, Karamanos
settled the claims against him for $10,000.00.
During trial, the jury was instructed to assess full damages as if Karamanos were still a
defendant because the amount of the Karamanos settlement would later be deducted from the
verdict. The jury found respondents liable to Marathon for $9,528.75 and Ramadanis for
$8,000.00: an entire judgment of $17,528.75. Ten thousand dollarsrepresenting the
Karamanos settlementwas deducted from the total judgment and Stupak paid appellants the
remaining $7,528.75.
Ramadanis and Marathon filed separate motions for prejudgment interest which the trial
court denied. On appeal, we held that the two plaintiffs below were entitled to prejudgment
interest and remanded the action to correct the error. Ramadanis v. Stupak, 104 Nev. 57, 752
P.2d 767 (1988).
When the trial court calculated the prejudgment interest upon remand, it split the
$10,000.00 settlement in half, deducted $5,000.00 from each verdict, and then computed the
prejudgment interest. Ramadanis and Marathon appeal from the second judgment, contending
that the district court erred in its method of computing the prejudgment interest.
We are asked to choose between two methods of computing prejudgment interest in
situations where at least one of the defendants has settled before trial. Appellants urge this
court to adopt the approach found in American Nat'l Watermattress Corp. v. Manville, 642
P.2d 1330 (Alaska 1982). In American Nat'l Watermattress Corp., the Alaska Supreme Court
used an algebraic formula designed to make the plaintiff whole, and no more.
1
Id. at 1344.
The formula is based on the presumption that a settlement amount contains both principal and
prejudgment interest.
__________

1
The formula is quoted as follows:
1) We start with two formulas that express our premises:
Respondents argue that the court correctly deducted the settlement amount prior to the
entry of judgment and then computed prejudgment interest. This approach has been adopted
in other jurisdictions.
2

Either approach has advantages and disadvantages,
3
but we elect to adopt the
non-algebraic method. Therefore, the trial court properly computed prejudgment interest after
deducting the amount of the Karamanos settlement from the judgment.
__________
a) S=I+P
Where S is the amount of settlement, I is the amount of interest, and P is the amount of principal.
b) I=RP,
Where R is the applicable rate of interest.
2) Then we simply manipulate these formulas to get one that will solve for P.
a) S=I+P Premise
b) I=RP Premise
c) S=RP+P Substitute the b formula into the a formula.
d) S=P(R+1) Factor out P from the right side of the c formula.
e) S Divide both sides of the d formula by
R+1 R+1 in order to solve for P.
3) P=S This formula will yield the principal
(R+1) amount of the Settlement.
Id. at 1344. The Alaska Supreme Court then applies the formula after determining the figures for the settlement
amount and rate of interest. Id.

2
See McKown-Katy v. Rego, Co., 776 P.2d 1130 (Colo.Ct.App. 1989) (trial court properly deducted
settlement amounts before adding statutory interest); Martinez v. Jesik, 703 P.2d 638 (Colo.Ct.App. 1985)
(plaintiffs voluntarily settling with one codefendant give up right to statutory interest in exchange for the
certainty of settlement); Harvey v. Security Services, 384 N.W.2d 414 (Mich.Ct.App. 1986) (plaintiff waived
right to statutory interest on total amount of jury verdict when he accepted the settlement payment); Silisky v.
Midland-Ross, Corp. 296 N.W.2d 576 (Mich.Ct.App. 1980) (plaintiff traded off the loss of interest for the
waiting period in exchange for the certainty of settlement); Awedian v. Theodore Efron Mfg. Co., 239 N.W.2d
611 (Mich.Ct.App. 1976) (when plaintiffs accepted settlement money, they lost right to prejudgment interest on
the entire verdict); Margadonna v. Otis Elevator Co., 542 A.2d 232 (R.I. 1988) (settlement amount is deducted
before prejudgment interest is computed).

3
The major problem with the Alaskan formula is that the result can be unfair to the non-settling defendant.
Under the formula, a settlement is presumed to contain both interest and principal. The amount of the settlement
determined to be principal is then subtracted from the verdict. There is a problem, however, when settlement
occurs within a short time of the verdict but long after the time when the claim arises. The Rhode Island
Supreme Court has stated:
In the case before us the settlement and the verdict occurred within a
We recognize that our holding will deprive appellants of prejudgment interest on the
settlement amount. However, we merely view this as one factor that all plaintiffs should
consider when settling with a defendant. Despite appellants' arguments to the contrary, we are
not convinced that this approach will be a major deterrent to settlement. Indeed, a plaintiff
may choose to waive his or her right to prejudgment interest in favor of the certainty and
immediacy of settlement payments.
The judgment of the district court is affirmed.
4

____________
107 Nev. 25, 25 (1991) Baker v. Criterion Insurance
RUTH BAKER, Appellant, v. CRITERION INSURANCE COMPANY, CRITERION
CASUALTY COMPANY, dba CRITERION INSURANCE COMPANY, Respondents.
No. 20476
February 7, 1991 805 P.2d 599
Appeal from summary judgment denying an insured recovery from both bodily injury and
uninsured motorist coverage of the same policy. Eighth Judicial District Court, Clark County;
Myron E. Leavitt, Judge.
Insured brought action against her insurer seeking to recover uninsured/underinsured
motorist benefits under her policy. The district court granted summary judgment in favor of
the insurer, and the insured appealed. The supreme court held that insured, who was injured
while riding as a passenger in her own vehicle which was driven by permissive user, could
not recover from both bodily injury and uninsured/underinsured motorist coverage of the
same policy.
Affirmed.
Richard A. Harris, Las Vegas, for Appellant.
Edwards, Hunt, Hale & Hansen and Trevor Atkin, Las Vegas, for Respondents.
__________
week of each other, and both occurred more than five-and-a-half years after the claim arose. This would
result in a division of the settlement whereby two-thirds would be considered interest and only one-third
would be considered principal. In our opinion, reduction of the judgment by such a small amount, would
be unfair to defendant.
Margadonna, 542 A.2d at 236 n.2.

4
The Honorable John Mowbray, Chief Justice, did not participate in the decision of this appeal.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for
Amicus Curiae.
1. Insurance.
Insured, who was injured while riding as a passenger in her own vehicle which was driven by permissive user, could not recover
from both bodily injury and uninsured/underinsured motorist coverage of the same policy.
2. Insurance.
Guest passengers may stack their own uninsured motorist/underinsured motorist coverage with the benefits they received from the
owner's policy, but they may not recover from the owner's uninsured motorist/uninsured motorist coverage.
OPINION
Per Curiam:
Appellant Ruth Baker was injured when riding as a passenger in her own vehicle. The
driver was a permissive user who had no insurance policy of his own. He was insured under
Baker's policy with Criterion Insurance Company (Criterion). Criterion paid Baker $15,000,
which was the limit of the bodily injury coverage in her policy.
[Headnote 1]
Baker brought suit to recover additional compensation under the $15,000 of
uninsured/underinsured (UM/UIM) coverage in her policy. The court below granted
Criterion's motion for summary judgment and this appeal followed. We agree that Baker may
not recover from both bodily injury and UM/UIM coverage of the same policy and affirm the
grant of Criterion's motion for summary judgment.
[Headnote 2]
Guest passengers may stack their own UM/UIM coverage with the benefits they receive
from the owner's policy, but they may not recover from the owner's UM/UIM coverage.
Peterson v. Colonial Ins. Co., 100 Nev. 474, 686 P.2d 239 (1984). In Peterson, a non-owner
passenger of the tortfeasor's vehicle recovered from the owner's bodily injury benefits. When
she tried to collect additional compensation from the owner's UM/UIM benefits, this court
decided that she could recover UM/UIM benefits from a policy that she had procured herself,
but that she could not stack the bodily injury and UM/UIM benefits from the owner's policy.
Id. at 476, 686 P.2d at 240.
Baker attempts to distinguish her situation from Peterson because she seeks to stack
benefits from her own policy. In fact, Nevada law requires insurance companies to offer
UMJUIM coverage to benefit insureds like Baker.
Nevada law requires insurance companies to offer UM/UIM coverage to benefit insureds like
Baker. NRS 687B.145(2)
1
does require insurance companies to offer UM/UIM coverage
equal to the limits of bodily injury coverage. However, this court stated in Peterson that the
language of that statute contemplates the tortious involvement of a party and vehicle other
than the insured and the insured's vehicle. Id. at 476, 686 P.2d at 240. Baker's injury was due
to the tortious involvement of another party, but not of another vehicle. Therefore, Baker's
injury in this case is not a situation for which NRS 687B.145(2) requires companies to offer
UM/UIM coverage.
We noted in Peterson that if we concluded that the insured could recover both UM/UIM
benefits and liability or bodily injury benefits under a single policy, then the court would
essentially be increasing the policy's bodily injury coverage. Id. at 476, 686 P.2d at 240. The
same result would occur here. Baker's policy only insured individual passengers for bodily
injury up to $15,000. To afford Baker additional recovery from Criterion would increase the
policy limit.
Still, Baker asserts that the permissive driver in this case was underinsured because her
policy only covered him up to $15,000 an amount which her damages exceeded. This court
addressed whether a similar driver was uninsured in Farmers Ins. Exchange v. Warney, 103
Nev. 216, 737 P.2d 501 (1987). In Warney, as in this case, the insured suffered injuries when
she was a passenger in her own vehicle. Since the policy contained a household exclusion for
bodily injury, the insured argued that the vehicle was effectively uninsured. However, this
court concluded that the statutory minimum provided by NRS 485.3091
2
made the car
insured and barred recovery of UM/UIM benefits. Id. at 217, 737 P.2d at 501. Baker's claim
that her vehicle was underinsured is no different from the claim in Warney that the vehicle
was uninsured, and therefore is not persuasive.
__________

1
NRS 687B.145(2) provides in pertinent part that,
Insurance companies transacting motor vehicle insurance in this state must offer, on a form
approved by the commissioner, uninsured and underinsured vehicle coverage in an amount equal to the
limits of coverage for bodily injury sold to an insured under a policy of insurance covering the use of a
passenger car. . . . Uninsured and underinsured vehicle coverage must include a provision which enables
the insured to recover up to the limits of his own coverage any amount of damages for bodily injury from
his insurer which he is legally entitled to recover from the owner or operator of the other vehicle to the
extent that those damages exceed the limits of the coverage for bodily injury carried by that owner or
operator.
(Emphasis added).

2
This statute is entitled, Motor vehicle liability policy: Requirements. It provides that all drivers of motor
vehicles must procure a minimum of $15,000/$30,000 liability coverage.
no different from the claim in Warney that the vehicle was uninsured, and therefore is not
persuasive.
Criterion also asserts that permitting Baker to recover additional damages from her
UM/UIM coverage would nullify the household exclusion in the policy. The household
exclusion clause precludes the owner of the policy from making a claim for liability or bodily
injury benefits. Such clauses are only valid when the claim and coverage are in excess of the
$15,000/$30,000 minimum liability insurance required by statute. Estate of Neal v. Farmers
Ins. Exch., 93 Nev. 348, 566 P.2d 756 (1971). The exclusion never applied in Baker's case
because she had procured only the minimum amount of insurance required by law.
In Neal, the exclusion precluded members of the insured's household from recovering
liability benefits for which the insured had paid a higher premium. Baker should not be
permitted to circumvent the household exclusion in her policy simply because she chose to
purchase less coverage. Therefore, Baker may only recover up to $15,000 for her own
injuries, and she may not stack the UM/UIM coverage of the same policy upon the benefits
she has already received.
For the reasons stated above, we affirm the order granting Criterion's motion for summary
judgment.
____________
107 Nev. 28, 28 (1991) Lord v. State
THOMAS RUSSELL LORD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20660
February 7, 1991 806 P.2d 548
Appeal from judgment of conviction and from sentence of death. Eighth Judicial District
Court, Clark County; Earle W. White, Jr., Judge.
Defendant was convicted in the district court of first degree murder, robbery with deadly
weapon and conspiracy to commit robbery and/or murder. Defendant appealed. The supreme
court, Rose, J., held that: (1) any error due to prosecutor's misstatement of evidence during
opening argument was harmless; (2) evidence did not warrant instruction on possession of
stolen property; (3) district court abused its discretion in denying defense request for half-day
continuance to permit six out-of-state witnesses to testify during penalty phase; and (4) it was
prejudicial error for district court to allow detective to read to jury transcript of co-defendant's
confession during penalty phase.
107 Nev. 28, 29 (1991) Lord v. State
Affirmed in part; reversed in part; remanded.
Steffen, J., dissented in part.
Lee Elizabeth McMahon, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney and
William P. Henry, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Prosecutor's statements during opening argument that he would prove that co-defendant had offered to exchange victim's ring
for gas and that boot-prints near body bore same pattern as boots defendant was wearing somewhat overstated the evidence to the
extent that testimony at trial did not directly establish that it was victim's ring that co-defendant had offered service station manager
and detective could not say that boot-prints were the same; however, any error was harmless where defense counsel utilized his
ample cross-examination and closing argument to show that the State had not conclusively proved either of those two facts and jury
was instructed that argument by counsel was not evidence. NRS 178.598.
2. Criminal Law.
It is error to allow relative of victim to testify where testimony is not needed to prove or to strengthen proof of material fact, giving
rise to inference that relative's appearance was contrived primarily to arouse sympathy of jurors; such unnecessary appearance during
guilt phase may prejudice penalty phase of capital trial as well.
3. Criminal Law; Homicide.
Testimony of victim's mother that victim wore a gold ring and that she had just recently wired victim $25 was needed by State to
prove that ring and money were stolen since ring and money were never found and were thus pertinent to circumstantial proof of
robbery; therefore, appearance of witness was not contrived primarily to arouse sympathy of jurors and it was not error to allow her to
testify.
4. Criminal Law.
It was error to allow detective to testify that, in his opinion, based on his law enforcement experience, certain minor injuries on
defendant indicated that defendant had recently been in a fight since detective was not qualified as a medical expert; however, error did
not prejudice defendant's substantial rights in prosecution for first degree murder, robbery with deadly weapon, and conspiracy to
commit robbery and/or murder where there was other strong evidence of guilt and on cross-examination by defense counsel detective
admitted that he was uncertain how fresh the wounds were and that wounds could have been caused by simple accident rather than a
fight. NRS 50.265, 50.275.
5. Witnesses.
Re-direct examination of detective during which prosecutor asked detective three times whether defendant had identified himself
when detective met defendant on day of arrest was not an improper attempt to draw attention to defendant's postarrest silence in
violation of Doyle v. Ohio, 426 U.S. 610 (1976); questions went only to defendant's failure to identify himself, not his failure to give
exculpatory story and prosecutor never once attempted to argue or refer back to that brief testimony.
107 Nev. 28, 30 (1991) Lord v. State
never once attempted to argue or refer back to that brief testimony. U.S.C.A.Const. amend. 5.
6. Criminal Law.
Any error in disallowing defendant's impeachment of witness, who refused to answer yes to defendant's query as to whether he
inspected interior of victim's truck the evening he impounded it, with his prior statement that he examined interior of truck that
evening was manifestly harmless; since witness had admitted to observing interior of truck, defense counsel already had ample
basis for arguing that witness should have noticed any bloodstains the night before. NRS 50.135.
7. Criminal Law.
Prosecutor's improperly quantifying concept of reasonable doubt during closing argument by suggesting that having 95 percent of
the pieces of the puzzle suffices to convict beyond a reasonable doubt did not constitute prejudicial error where jury received proper
written instruction and immediately after making improper statements, prosecutor proceeded to state correct statutory definition to
the jury. NRS 175.211.
8. Criminal Law.
Evidence did not warrant instruction on possession of stolen property as lesser related offense to robbery with a deadly weapon;
there was no direct evidence in record that defendant had received victim's truck from someone else, that he knew or should have
known it was stolen, or that he had received truck for his own personal gain. NRS 205.2715, 205.275.
9. Criminal Law.
In capital cases, instructions on lesser included offenses are constitutionally required if requested by defense.
10. Criminal Law.
Before lesser, non-included offense instruction may be given to jury, there must be some evidence in record to rationally support
conviction on lesser offense.
11. Constitutional Law; Criminal Law.
Jury instruction based on statutory definition of reasonable doubt did not violate due process. NRS 175.211; U.S.C.A.Const.
amend. 14; Const. art. 1, 8.
12. Criminal Law; Homicide.
District court abused its discretion in denying defense request for half-day continuance to permit six out-of-state witnesses to
testify the next morning during penalty phase of capital murder trial; prejudice to court in administration of justice due to what
amounted to, at most, a half-day continuance appeared minimal, prejudice to defendant was readily apparent, and record did not show
that any lack of diligence on part of defendant or counsel was sufficient to justify denial.
13. Criminal Law.
It was prejudicial error for district court during penalty phase of capital murder trial to allow detective to read to jury transcript of
co-defendant's incriminating confession which was not made during course of conspiracy but was made after co-defendant and
defendant were arrested; admission of confession violated sixth amendment right to confrontation. U.S.C.A.Const. amend. 6; NRS
51.035(e).
14. Criminal Law.
Absent some hearsay exception, admitting non-testifying co-defendant's confession against another defendant during guilt phase
generally violates sixth amendment right to confrontation.
107 Nev. 28, 31 (1991) Lord v. State
generally violates sixth amendment right to confrontation. U.S.C.A.Const. amend. 6.
15. Criminal Law.
Bruton rule applies to penalty phase of capital case as well as guilt phase. U.S.C.A.Const. amend. 6.
OPINION
A jury convicted appellant Thomas Russell Lord (Lord) of three crimes: first degree
murder, robbery with a deadly weapon and conspiracy to commit robbery and/or murder. The
jury sentenced Lord to death. For reasons set forth below, we affirm the convictions and
prison sentences therefor, but set aside the sentence of death and remand for a new penalty
hearing.
FACTS
Lord and co-defendant Donald James McDougal (McDougal) were charged with the three
crimes stated above. McDougal was tried first, found guilty of all three crimes, and sentenced
to life with the possibility of parole for the murder. Appellant Lord was tried separately later,
found guilty of the same crimes, and sentenced to death on the murder count, as well as to
prison terms on the second two counts.
At Lord's trial, the State proved the following circumstantial case. On October 5, 1988, a
51-year-old man was discovered dead in the bushes just off Interstate 15 in Nevada near the
California border. He died of multiple stab wounds. Less than two hours later, Lord, 32, and
McDougal, 22, were identified about 76 miles away in California, driving the victim's pickup
truck on the same highway. Danny Young, manager of a service station on Interstate 15 in
California, testified that he chased Lord and McDougal after they stole some gas from his
station. When he caught them, McDougal offered to exchange a gold ring for the gas, which
Young refused. Young further stated that he impounded their truck to pay for the gas, and
Lord and McDougal walked away into the desert. The two were arrested the next day.
Other testimony indicated that the victim's truck had numerous blood stains in it, that Lord
had blood matching the victim's blood-type on one of his boots, and that the blood did not
match the blood-type of either Lord or McDougal. Las Vegas Metropolitan Police Detective
David Hatch (Hatch) testified that some boot-prints at the scene where the body was dumped
appeared "similar" to the boots Lord was wearing.
107 Nev. 28, 32 (1991) Lord v. State
similar to the boots Lord was wearing. According to the State's theory of the case, Lord and
McDougal stole not only the truck, but also the victim's gold ring and some money. The ring,
the money and the murder weapon were never found. However, the victim's mother was
allowed to testify that her son wore a gold ring and that she had just recently wired her son
$25. Additionally, the victim's pockets were turned inside out and the victim had a patch of
lighter skin around one finger, which, according to a physician, indicated that he had recently
been wearing a ring.
The defense rested without offering any evidence other than a few photos of the scene
where the victim was found. Based on the above evidence, the jury found Lord guilty of the
three crimes with which he was charged.
On the day of the penalty hearing, the district judge denied a defense request for a half-day
continuance to allow out-of-state witnesses, including Lord's father, to arrive to testify the
next morning. As a result, Lord had only one out of seven planned witnesses to testify on his
behalf at the penalty hearing. As part of the State's penalty case, Detective Hatch read to the
jury a confession which non-testifying co-defendant McDougal had given to police.
Following the hearing, the jury returned a penalty verdict of death on the count of murder.
Lord now appeals the convictions and sentence of death. Imposition of the death penalty
was stayed pending appeal pursuant to NRS 177.095.
LEGAL DISCUSSION OF GUILT PHASE
Lord makes eight assignments of error as to the guilt phase, none of which, we conclude,
warrants reversal of the convictions.
1. Prosecutor's misstatement of evidence.
[Headnote 1]
During opening arguments, the prosecutor, William Henry, stated he would prove that
McDougal had offered to exchange the victim's ring for gas, and that boot-prints near the
body bore the same pattern as the boots Lord was wearing. Lord contends that these two
statements were error under Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962) (holding that,
during opening argument, prosecutor must refrain from stating facts which cannot be proved).
Here, the testimony at trial did not directly establish that it was the victim's ring that
McDougal had proffered. Further, Detective Hatch could not say that the boot-prints were
the "same" {just "similar"), and he admitted that the boot-prints, in sandy soil, were not
very reliable.
107 Nev. 28, 33 (1991) Lord v. State
were the same (just similar), and he admitted that the boot-prints, in sandy soil, were not
very reliable. Thus, we agree that Mr. Henry's comments somewhat overstated the evidence,
and that this should be avoided. However, we need not decide if this was error under Garner.
Defense counsel utilized his very ample cross-examination and closing argument to show that
the State had not conclusively proved either of these two facts. Further, the jury was
instructed that argument by counsel is not evidence. Under these circumstances, we conclude
that any error on this point was harmless under NRS 178.598.
2. Testimony of the victim's mother.
[Headnotes 2, 3]
Lord argues that it was error for the court to allow the victim's mother to testify, essentially
because her appearance and testimony were more prejudicial than probative. It is error to
allow the relative of a victim to testify where the testimony is not needed to prove or to
strengthen proof of a material fact, giving rise to the inference that the relative's appearance
was contrived primarily to arouse the sympathy of the jurors; such an unnecessary appearance
during the guilt phase may prejudice the penalty phase as well. People v. Brown, 756 P.2d
204, 213 (Cal. 1988). In Brown, the testimony of the relative was on purely collateral matters
and, hence, was error. Here, however, the State correctly contends that the victim's mother's
testimony was very pertinent to the circumstantial proof of robbery. Since the ring and the
money were never found, the State needed this testimony to prove that these items were
stolen. Therefore, we cannot conclude that the appearance of this witness was contrived
primarily to arouse the sympathy of the jurors.
3. Expert testimony of detective.
[Headnote 4]
Detective Hatch was allowed to testify that, in his opinion, based on his law enforcement
experience, certain minor injuries on Lord indicated that Lord had recently been in a fight.
Lord contends that it was error to permit this testimony on a medical issue because Detective
Hatch was not qualified as a medical expert. Without deprecating Detective Hatch's law
enforcement experience, we are persuaded by Lord's contention. When, as here, the cause of
injuries is not immediately apparent, the opinion as to the cause should be given by one
qualified as a medical expert, not by a law enforcement officer, pursuant to NRS 50.275.
Here, for example, the physician might have testified on this point. In other cases where it is
apparent that the victim has been in a fight, no opinion is needed.
107 Nev. 28, 34 (1991) Lord v. State
victim has been in a fight, no opinion is needed. A photograph of the injuries and counsel's
argument will suffice to inform the jury. In any event, layperson opinion pursuant to NRS
50.265 is not an appropriate vehicle to illuminate the cause of these types of injuries. Despite
the above, however, we cannot conclude that this error prejudiced Lord's substantial rights.
There was other strong evidence of guilt. Additionally, on cross-examination by defense
counsel, Detective Hatch admitted that he was uncertain how fresh the wounds were and that
the wounds could have been caused by simple accident, rather than a fight.
4. Claimed Doyle violation.
[Headnote 5]
Lord points out that, on re-direct examination of Detective Hatch, Mr. Henry three times
asked Detective Hatch whether Lord had identified himself when Hatch met Lord on the day
of the arrest. Lord contends that these questions constituted an improper attempt to draw
attention to Lord's post-arrest silence, in violation of Doyle v. Ohio, 426 U.S. 610 (1976).
Here, however, unlike the cases in which we have found reversible error upon a Doyle
violation, the questions went only to Lord's failure to identify himself, not his failure to give
an exculpatory story. More important, the prosecutor never once attempted to argue or in any
way refer back to this brief testimony. In all, while a defendant's failure to identify himself
could be used improperly to call attention to post-arrest silence, this was not done in the
present case and, hence, this questioning did not rise to the level of a Doyle violation.
5. Disallowed impeachment of witness.
[Headnote 6]
The fifth error assigned by Lord relates to the testimony given by Mr. Young, the service
station manager who chased Lord and McDougal after they stole gas from the station. During
cross-examination, Mr. Young admitted that he observed the inside and outside of the
victim's truck when he impounded it. Later, on re-cross examination, defense counsel
attempted to ascertain why Young had not noticed the blood stains in the truck until the
morning after he impounded it. Young explained that he did not notice the blood because it
was night, the truck was parked in an unlit area, and blood looks like dirt at night. Young said
he looked inside the truck, but refused to answer yes to defense counsel's query as to whether
he inspected the interior that evening. After this, defense counsel sought to impeach Young
with a prior statement Young had made in McDougal's trial that he "examined" the
interior of the truck that evening.
107 Nev. 28, 35 (1991) Lord v. State
with a prior statement Young had made in McDougal's trial that he examined the interior of
the truck that evening. Concluding that this was impeachment on a collateral issue, the
district court refused to allow the impeachment. Lord argues that it was error for the court to
disallow this impeachment. If Mr. Young had denied even looking into the truck that evening,
Lord certainly should have been permitted to impeach Young with the prior inconsistent
statement. See NRS 50.135. Here, however, we need not reach the issue of whether the
district court erred in determining this to be impeachment on a collateral matter, because any
error was manifestly harmless. Since Young had admitted to observing the interior of the
truck, defense counsel already had ample basis for arguing that Young should have noticed
any blood stains the night before. The difference between Mr. Young admitting that he
examined versus observed the interior of the truck is marginal at best, especially in light
of Young's credible explanation for why he did not notice the blood and in light of the other
evidence of guilt.
6. Improper statements quantifying reasonable doubt.
[Headnote 7]
Lord contends that Mr. Henry improperly quantified the concept of reasonable doubt
during closing argument by suggesting that having 90-95 percent of the pieces of a puzzle
suffices to convict beyond a reasonable doubt. Whether made by the district judge or the
prosecutor, this comment is improper under McCullough v. State, 99 Nev. 72, 657 P.2d 1157
(1983) (error for district judge to say that reasonable doubt meant about 75 percent certainty).
Parties to a criminal case should assiduously avoid such attempts to quantify the concept of
reasonable doubt. Nevertheless, citing Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985),
the State contends that any error was not prejudicial, and we agree. In McCullough, this court
found the improper comment reversible in large part because the jury also received an
improper written instruction on reasonable doubt. In Petrocelli, in contrast, this court
concluded that the judge's similar comment was not prejudicial because the jury had received
the proper written definition of reasonable doubt mandated by NRS 175.211 and because the
judge elsewhere explained reasonable doubt in a proper fashion. Here, as in Petrocelli, the
jury received the proper written instruction. Additionally, immediately after making the
improper statements, Mr. Henry proceeded to state the correct statutory definition to the jury.
For these reasons, we cannot conclude that this error was prejudicial.
107 Nev. 28, 36 (1991) Lord v. State
7. Refused instruction on possession of stolen property.
[Headnote 8]
Lord's seventh assignment of error regarding the guilt phase concerns a jury instruction
refused by the district court. The district court refused to grant the defense request for an
instruction on possession of stolen property, namely the victim's truck. Lord argues that the
refusal constituted error under this court's holding in Moore v. State, 105 Nev. 378, 776 P.2d
1235 (1989).
[Headnote 9]
In capital cases, instructions on lesser included offenses are constitutionally required if
requested by the defense. Beck v. Alabama, 447 U.S. 625, 638 (1979). In Moore, adopting
People v. Geiger, 674 P.2d 1303 (Cal. 1984), this court went one step further by holding that,
in some circumstances, a court must grant instructions even for lesser related offenses, i.e.,
offenses which are related to the principal offense but are not lesser included offenses of the
principal offense. Specifically, this court stated:
[A] defendant has no general right to have the jury presented with a shopping list of
alternatives to the crimes charged by the prosecution. However, we hold that the jury
should receive instruction on a lesser-related offense when three conditions are
satisfied: (1) the lesser offense is closely related to the offense charged; (2) defendant's
theory of defense is consistent with a conviction for the [lesser] related offense; and (3)
evidence of the lesser offense exists.
Moore, 105 Nev. at 383, 776 P.2d at 1238-39 (citation omitted).
Lord has satisfied the first two requirements under Moore. First, the lesser related offense
of possession of stolen property is closely related to the principal charge of robbery with a
deadly weapon. The strongest evidence of robbery was the taking of the truck and the truck is
also the property involved in possession of stolen property. See also People v. Kamin, 275
N.W.2d 777 (1979) (defendant was charged with robbery; court held that instruction on lesser
offense of larceny from the person was required). Second, Lord's theory of defense was
consistent with a conviction for possession of stolen property. In closing argument, defense
counsel argued that Lord could have received the truck from another person who stole it after
committing the actual murder. Defense counsel also argued that, after committing the murder,
McDougal could have picked up Lord hitchhiking.
[Headnote 10]
The third and closest question is whether there was sufficient evidence of the crime of
possession of stolen property to warrant this instruction.
107 Nev. 28, 37 (1991) Lord v. State
evidence of the crime of possession of stolen property to warrant this instruction. Before a
lesser, non-included offense instruction may be given to the jury, there must be some
evidence in the record to rationally support a conviction on the lesser offense. People v.
Early, 692 P.2d 1116, 1120 (Colo.App. 1984) (citation omitted). Defense counsel did not
specify to the court exactly which statute he was referring to in support of this instruction.
The State contends that the intended statute was NRS 205.2715, which proscribes the
unlawful taking of a motor vehicle. If this was the intended statute, the evidence does not
support an instruction on this offense. This statute concerns a more minor crime of joyriding,
i.e., the unconsented use of another's car without the intent to permanently deprive. NRS
205.2715. Here, there is no evidence at all that Lord intended to return this vehicle. The
evidence shows an attempt to drive away from Nevada; Lord abandoned the vehicle only
because Mr. Young forced him to.
Instead of NRS 205.2715, it seems clear that the statute defense counsel was referring to
was NRS 205.275, which proscribes receiving, possessing or withholding stolen goods. As
Lord points out, there is some evidence to support a conviction on this crime: (1) Lord was
seen driving a stolen truck; and (2) it was McDougal who had the ring, indicting possibly that
Lord received control of the truck from McDougal only after McDougal or someone else
robbed the victim. On the other hand, NRS 205.275 requires proof that the person received
stolen property, that the person knew or reasonably should have known that the property was
stolen, and that the person was acting for his own gain. In requesting this instruction, the
defense theory was that Lord had nothing to do with the robbery, the murder, or the initial
theft of the truck. The theory was that he received the truck sometime after the murder,
robbery and initial theft. Yet Lord called no witnesses in his defense in this case. Assuming
that Lord had nothing to do with the murder, there is no direct evidence at all in the record
that he had received the truck from someone else, that he knew or should have known it was
stolen, or that he had received the truck for his own personal gain. The blood stains in the
front cab of the truck were not all obvious. Thus, an innocent passenger taking turns driving
would not necessarily know it was a stolen vehicle. Although this is a close question, we
conclude that the district court did not err in refusing this instruction. See Kamin, 275 N.W.2d
777, (it was not error for the court to refuse to give burglary defendant an instruction on
receiving stolen property, because there was no evidence in the record as to the value of the
property, an essential element of the crime); cf.
107 Nev. 28, 38 (1991) Lord v. State
of the crime); cf. Moore, 105 Nev. 378, 776 P.2d 1235, (James Mayfield was charged with
murder and requested an instruction to cover the possibility that he was merely an accessory
after the fact; there was considerable evidence indicating that Mayfield was not present until
sometime after the initial attack and that the victim could well have been dead before
Mayfield arrived to help dispose of the body; in short, there was far more evidence than in the
present case to support the instruction).
8. Validity of reasonable doubt instruction.
[Headnote 11]
Lord's final assignment of error is that the instruction given on reasonable doubt, which
followed the definition set forth in NRS 175.211, was improper because a similar instruction
was held unconstitutional by the United States Supreme Court in Cage v. Louisiana, 111
S.Ct. 328 (1990). We do not find the instruction given in Cage to be similar to Nevada's
standard definition contained in the instruction and therefore the Cage opinion is not
controlling in this case.
Preliminarily, we note that no objection was made to the instruction given on reasonable
doubt. Normally, a proper objection is a prerequisite to our considering the issue on appeal.
Riddle v. State, 96 Nev. 589, 613 P.2d 1031 (1980). However, since this issue is of
constitutional proportions, we elect to address it now.
Lord contends that the reasonable doubt jury instruction given in this case violates the due
process clauses of the fourteenth amendment of the United States Constitution and article I,
section 8 of the Nevada Constitution. The jury instruction stated:
The defendant is presumed innocent until the contrary is proved. This presumption
places upon the State the burden of proving beyond a reasonable doubt every material
element of the crime charged and that the defendant is the person who committed the
offense.
A reasonable doubt is one based on reason. It is not mere possible doubt but is such
a doubt as would govern or control a person in the more weighty affairs of life. If the
minds of the jurors, after the entire comparison and consideration of all the evidence,
are in such a condition that they can say they feel an abiding conviction of the truth of
the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual and
substantial, not merely possibility or speculation.
If you have a reasonable doubt as to the guilt of the defendant, he is entitled to a
verdict of not guilty.
107 Nev. 28, 39 (1991) Lord v. State
This jury instruction was based on NRS 175.211.
1
We have held that a reasonable doubt
instruction based on our statutory definition does not violate due process. See Cutler v. State,
93 Nev. 329, 566 P.2d 809 (1977). We must examine this conclusion in light of the recent
Supreme Court decision.
In Cage, the Court stated that [i]n state criminal trials, the Due Process Clause of the
Fourteenth Amendment protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In
re Winship, 497 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). Cage at 329.
The Court then went on to hold that the Louisiana trial court's reasonable doubt instruction
was constitutionally defective because a reasonable juror could have interpreted the
instruction to allow a finding of guilt based on a degree of proof below that required by the
Due Process Clause. Id. The instruction provided in relevant part:
If you entertain a reasonable doubt as to any fact or element necessary to constitute the
defendant's guilt, it is your duty to give him the benefit of that doubt and return a
verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it
does not establish such guilt beyond a reasonable doubt, you must acquit the accused.
This doubt, however, must be a reasonable one; that is one that is founded upon a real
tangible substantial basis and not upon mere caprice and conjecture. It must be such
doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the
unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a
mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable
man can seriously entertain. What is required is not an absolute or mathematical
certainty, but a moral certainty. State v. Cage, 554 So.2d 39, 41 (La. 1989) (emphasis
added).
Ibid.
In construing the instruction, the Cage decision considered how reasonable jurors might
have understood the charge as a whole.
__________

1
NRS 175.211 states:
1. A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as
would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the
entire comparison and consideration of all the evidence, are in such a condition that they can say they feel
an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable
must be actual and substantial, not mere possibility or speculation.
2. No other definition of reasonable doubt shall be given by the court to juries in criminal actions in
this state.
107 Nev. 28, 40 (1991) Lord v. State
whole. The Court stated that the words substantial and grave, coupled with moral
certainty rather than evidentiary uncertainty could cause a reasonable juror to make a finding
of guilt based on a degree of proof below that required. Id. at 329-330. After reviewing the
instruction as a whole, the Court struck it down based on the combination of the three terms.
Lord argues that both instructions contain comparable language; both contain the words
actual and substantial. However, the language of the Louisiana instruction is
distinguishable from that of Nevada. Although NRS 175.211 and the instruction in this case
also includes the statement that doubt must be actual and substantial, taken as a whole, the
instruction gives much different meaning to the words. This court has previously considered
the substantial doubt language of NRS 175.211, rejecting the argument that it diluted the
State's burden of proof. Buckner v. State, 95 Nev. 117, 590 P.2d 628 (1979). We do not
believe the Nevada definition containing the substantial doubt language alone should make it
unconstitutional. The Nevada instruction does not use strong language such as grave or
moral certainty to quantify the uncertainty required for an acquittal. Rather, doubt must be
actual and substantial in Nevada before an acquittal should be returned. This is a much less
restrictive definition of reasonable doubt than Louisiana's.
Lord similarly objects to the Nevada instruction's statement that there is no reasonable
doubt if the juror has an abiding conviction of the truth of the charge. The Louisiana
instruction on reasonable doubt did not state when a conviction should be returned, or put
another way, when there is not a reasonable doubt. This is done by the Nevada standard
instruction, but we do not think the abiding conviction of the truth of the charge language
dilutes the definition of reasonable doubt or that it reduces the prosecutor's burden of proof to
convict. This language in the Nevada instruction is not an attempt to quantify or define
reasonable doubt, as was the language in the Louisiana instruction that the Supreme Court
found objectionable.
Because the Cage holding is limited to the interpretation of a single Louisiana instruction
that is not similar to the instruction on reasonable doubt given in Nevada, we hold that the
jury instruction given in this case and NRS 175.211 satisfy the due process requirements of
both the United States and the Nevada Constitution.
LEGAL DISCUSSION OF PENALTY PHASE
1. Denial of defendant's request for a half-day continuance.
[Headnote 12]
Lord first contends that the district court abused its discretion in denying the defense
request for a half-day continuance to permit six out-of-state witnesses from Maryland to
testify the next morning.
107 Nev. 28, 41 (1991) Lord v. State
in denying the defense request for a half-day continuance to permit six out-of-state witnesses
from Maryland to testify the next morning. We agree.
On August 23, 1989, the Wednesday before Lord's trial, the court conducted its calendar
call for this case. The trial was to start on the following Monday. Defense counsel informed
the court that he had five or six out-of-state witnesses arriving on Thursday night of trial
week who would be ready to testify in the penalty hearing on Friday morning. The judge
suggested that defense counsel try to have the witnesses ready to testify by Thursday, because
the guilt phase would probably be finished by Wednesday. Later in the calendar call,
however, the district court recalled Lord's case. At that time, the court stated that it
understood the hazards of transportation and that it would be flexible on scheduling the
penalty phase. Indeed, the district judge suggested that he might continue the penalty phase
until the week after the guilt phase. The next discussion of scheduling the defense penalty
witnesses came on Tuesday, August 29, 1989, the second day of trial. At this time, the court
made it clear that it would require all the defense witnesses for the penalty hearing to be ready
to testify on Thursday.
Lord was found guilty on Wednesday evening, and the penalty hearing began at 11:30 a.m.
on Thursday, August 31, 1989. Explaining that he had been unable to move up the witnesses'
travel arrangements, defense counsel requested the court to allow him to present the
out-of-state witnesses the next morning. The court denied this request without inquiring as to
whether there was good cause for the delay. As a consequence of this denial, the jury heard
only one out of seven of Mr. Lord's planned witnesses. The six out-of-state witnesses,
including Lord's father, were unable to testify on Lord's behalf. Even without the out-of-state
defense witnesses, the testimony at the penalty hearing concluded Thursday afternoon and the
case was submitted to the jury at five o'clock that evening. The jury adjourned to go home at
6:30 p.m. The next day, at 9:45 a.m., the jury returned a verdict of death before another
district judge, whom the presiding district judge had requested to take the verdict.
Defense counsel later filed a motion for new trial based in part on the denial of the
continuance. Attached to the motion was an affidavit of Joan Coe of the public defender's
office. Coe attested that, during the week of trial, she had attempted to move up the arrivals
of the witnesses, but was unsuccessful. She further stated that the witnesses she was able to
reach told her that their schedules would not permit change, or gave other reasons why they
could not change their travel plans.
107 Nev. 28, 42 (1991) Lord v. State
they could not change their travel plans. Also attached to the motion for new trial were
affidavits from the witnesses themselves confirming that they had arrived on Thursday
evening and were available to testify on Friday morning.
The parties agree that the granting or denial of a motion for continuance is in the sound
discretion of the district court. See, e.g., Zessman v. State, 94 Nev. 28, 573 P.2d 1174 (1978);
see also NRS 174.515. In the present case, the district judge abused this discretion by
refusing to grant this reasonable request for a modest continuance. First, the prejudice to the
court and the administration of justice due to what amounts to, at most, a half-day
continuance appears minimal. If the six other witnesses had been present on Thursday, the
proceedings would have lasted until Friday anyway, unless the district judge conducted court
into Thursday evening. It is unclear why the district judge would not be in session the next
morning. Second, the prejudice to the defendant was readily apparent. The court had been
informed that fully five or six out of the seven defense witnesses were involved. Third, the
record does not show any lack of diligence on the part of defense counsel sufficient to justify
the denial. The discussion during calendar call on the previous Wednesday had left the
scheduling unresolved or at least flexible. Based on that discussion, it was not unreasonable
for Mr. Lieberman to believe that the court would be willing to reschedule the penalty phase
for the next week if necessary. The district judge's remarks suggested that if Lord's trial could
be concluded in three days, he might be able to try another criminal case on Thursday and
Friday, deferring Lord's penalty phase until the next week. Alternatively, if Lord's trial went
longer than expected, then Lord's witnesses might not be required until Friday anyway. From
the facts contained in the record, defense counsel did not realize that the judge would require
the witnesses' presence until after the discussion on Tuesday, the second day of trial. Thus,
the defense had, at most, two days to rearrange the flight plans of their witnesses from
Maryland. Additionally, these were out-of-state witnesses not subject to subpoena. Finally,
the judge had earlier stated that he understood the problems of transportation. Yet later,
although it was shortly before the busy Labor Day weekend, the judge did not even inquire
into whether, for example, the witnesses had been unable to obtain seats on earlier flights.
This court has held denials of motions for reasonable continuances to be an abuse of
discretion where the purpose of the motion is to procure important witnesses and the delay is
not the particular fault of counsel or the parties. See, e.g., Colgain v. State, 102 Nev. 220
107 Nev. 28, 43 (1991) Lord v. State
State, 102 Nev. 220, 719 P.2d 1263 (1986); Banks v. State, 101 Nev. 771, 710 P.2d 723
(1985). The same considerations of fairness and substantial justice must apply with even
greater force in the penalty phase of a capital case, even at the expense of some
inconvenience to the calendar of the district court and, indeed, even if the delay, in some
small degree, is the fault of counsel.
2. Admission of co-defendant's incriminating confession during penalty phase.
[Headnote 13]
Lord further contends that it was error for the district court to allow Detective Hatch to
read to the jury a transcript of McDougal's confession during the penalty phase. We agree and
conclude that this was prejudicial error as to the penalty phase.
McDougal gave this confession to police after he and Lord were arrested. Because the
confession was not made during the course of the conspiracy, the co-conspirator exception to
the hearsay rule was inapplicable. See NRS 51.035(3)(e). Presumably for this reason, the
confession was not admitted during the guilt phase, only at the penalty phase. Although
McDougal had testified in his earlier, separate trial, he did not testify at any phase of Lord's
trial.
[Headnotes 14, 15]
Absent some hearsay exception, admitting a non-testifying co-defendant's confession
against another co-defendant during the guilt phase generally violates the sixth amendment
right to confrontation. Bruton v. United States, 391 U.S. 123, 137 (1968). The issue here is
whether the Bruton rule applies to the penalty phase of a capital case as well. The
admissibility under Bruton of a confession of a non-testifying co-defendant during the penalty
phase of a capital case is a question of first impression in this state.
Lord correctly cites to two decisions of the Florida Supreme Court which hold that the rule
of Bruton applies in the penalty phase of a capital case, as well as in the guilt phase. See
Walton v. State, 481 So.2d 1197, 1200 (Fla. 1986), cert. denied, 110 S.Ct. 759 (1990)
(reversing sentence of death, stating that [t]he sixth amendment right of an accused to
confront the witnesses against him is a fundamental right which is applicable not only in the
guilt phase, but in the penalty and sentencing phases as well); accord, State v. Gardner, 480
So.2d 91 (Fla. 1985); see also State v. Williams, 690 S.W.2d 517 (Tenn. 1985) (reversing
finding of aggravating circumstance in penalty phase because evidence supporting this
circumstance violated Bruton). The California Supreme Court has reached the same
conclusion, stating: "We agree that Aranda [People v. Aranda 407 P.2d 265 {1965)] and
Bruton apply to the penalty phase of a criminal proceeding.
107 Nev. 28, 44 (1991) Lord v. State
We agree that Aranda [People v. Aranda 407 P.2d 265 (1965)] and Bruton apply to the
penalty phase of a criminal proceeding. The importance of the right to timely
cross-examination has been sufficiently emphasized by this court and the United States
Supreme Court and requires no prolonged discussion. People v. Floyd, 464 P.2d 64, 80 (Cal.
1970) (en banc) (citations omitted), cert. denied, 406 U.S. 972 (1972).
Without citing any authority on point, the State argues that the right of confrontation
should not apply at a capital penalty phase, given the breadth of hearsay evidence admissible
during penalty phase under NRS 175.552. We disagree. Although not argued here, there are
some factual situations in which Bruton has been held not to apply. See generally 2 La Fave
& Israel, Criminal Procedure 17.2(b) (1984). Additionally, Bruton errors have been held to
be subject to harmless error analysis. Harrington v. California, 395 U.S. 250, 254 (1968).
Nevertheless, the need for cross-examination to test the fundamental reliability of
co-defendants' often suspect statements is no less great in the penalty phase than in the guilt
phase. In accord with the California Supreme Court, we conclude that the right of
cross-examination and the need for accuracy are as important, indeed more important, in the
penalty phase than in the guilt phase. We recognize that at least one court
2
has suggested that
Bruton does not apply in the penalty phase, but this position is not persuasive.
The State further contends that since sentencing does not involve the question of guilt,
there is less need for cross-examination. This argument is not persuasive either, because, as
the State admits, the clear purpose of introducing the confession was to alleviate any
lingering doubt the jury may have had concerning their verdict of guilt. (Emphasis added.)
McDougal testified in his separate trial, but the cross-examination by the prosecutor in that
trial was no substitute for cross-examination by Lord's defense counsel at Lord's trial.
The State further argues that any error was harmless. Again, we disagree. Here, the
confession was central in cementing the State's circumstantial case in the minds of the jurors.
Only two other witnesses besides Detective Hatch testified for the State in the penalty phase.
Especially given Lord's lack of prior violent crimes, we cannot conclude that there was no
reasonable possibility of a more favorable result absent this constitutional error. See People
v. Brown, 758 P.2d 1135, 1144-45 (Cal. 1988), cert. denied, 109 S.Ct. 1329 (1989) (stating
reasonable possibility standard for harmless error analysis of errors of constitutional law).
__________

2
See State v. Grisby, 647 P.2d 6 (Wash. 1982) (en banc).
107 Nev. 28, 45 (1991) Lord v. State
Since we have concluded that the penalty phase must be reversed, we need not reach
Lord's remaining assignments of error as to the penalty phase.
CONCLUSION
We conclude that the errors assigned by Lord do not require reversal of the guilt phase.
The penalty phase must be reversed for two reasons. First, the district court abused its
discretion in denying the reasonable defense request for a half-day continuance of the penalty
phase to allow out-of-state witnesses to testify on Lord's behalf, and this prejudiced Lord.
Second, in a question of first impression, we hold that the rule of Bruton applies with equal
force during the penalty phase of a capital case.
For these reasons, we affirm Lord's three convictions, and we affirm the prison sentences
imposed for robbery with a deadly weapon and conspiracy to commit robbery and/or murder.
We reverse the sentence of death and remand this case for a new penalty hearing before a
newly impaneled jury pursuant to NRS 177.055(3)(b)(1).
Mowbray, C. J., Springer and Young, JJ., concur.
Steffen, J., concurring in part and dissenting in part:
I concur in all aspects of the majority opinion with the exception of the opinion's ruling
concerning the Bruton issue in the penalty phase of Lord's trial. In my view, the issue is of
sufficient importance to warrant an expression of dissent.
The ruling in Bruton v. United States, 391 U.S. 123 (1968), was directed specifically to the
guilt phase of a defendant's trial and prohibited the admission of a co-defendant's confession
against another co-defendant absent an applicable exception to the hearsay rule. The Bruton
rule has retained its vitality in the context of forums constituted to determine the overriding
issue of innocence or guilt because it is of critical importance that a determination of guilt
occur within the degree of certitude reflected by the State's evidentiary burden of proof
beyond a reasonable doubt. The right of the capital defendant to confront and cross-examine a
co-defendant who may seek to minimize his own involvement at the expense of the defendant
is consistent with the high qualitative demands on evidence competent for evaluation by a
jury in its determination of innocence or guilt. Once a determination of guilt has been
reached, however, the focus shifts to the form of punishment warranted, given the specific
character and background of the defendant and the circumstances and gravity of the crime
committed.
107 Nev. 28, 46 (1991) Lord v. State
I strongly disagree with the assessment of my brethren in the majority suggesting that
Bruton constraints are even more important to the penalty phase than in the guilt phase of a
capital defendant's trial. Bifurcated guilt and penalty phase criminal trials are unique to the
capital case where a sentence of death may be imposed. Absent from the penalty phase of the
trial is the compelling threshold determination of innocence or guilt. Guilt has been
determined, and the task facing the trier of fact is confined to an evaluation of evidence
bearing upon the nature and extent of the punishment deserved by the particular defendant
and his particular crime.
With respect to the nature of punishment that may be imposed under Nevada law, the jury
must find, beyond a reasonable doubt, the presence of one or more statutorily defined
aggravating circumstances as a requisite to the availability of death as a sentencing
alternative. See Gallego v. State, 101 Nev. 782, 791, 711 P.2d 856, 862 (1985). When
aggravating circumstances have been found to exist, the defendant is thereafter scrutinized
according to his individual characteristics. Id. 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. Id. at 791, 711 P.2d at 862-63. Continuing,
we declared that [i]f 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.
Under Nevada's statutory sentencing procedure for capital cases, the Legislature has
provided latitude to enable juries to fully concentrate on factors related to a defendant's
character and record. The language of NRS 175.552 thus provides that:
Upon a finding that a defendant is guilty of murder of the first degree, the court shall
conduct a separate penalty hearing to determine whether the defendant shall be
sentenced to death or to life imprisonment with or without possibility of parole. . . . In
the 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. We have consistently recognized that the clear effect of the referenced
statutory provision is to allow for the introduction of evidence "which is otherwise
inadmissible, including evidence of character and special instances of conduct" because it
is "relevant to the jury's determination of the appropriate sentence for a capital crime."
107 Nev. 28, 47 (1991) Lord v. State
introduction of evidence which is otherwise inadmissible, including evidence of character
and special instances of conduct because it is relevant to the jury's determination of the
appropriate sentence for a capital crime. Pellegrini v. State, 104 Nev. 625, 630, 764 P.2d
484, 488 (1988). See also Emil v. State, 105 Nev. 858, 784 P.2d 956 (1989); Milligan v.
State, 101 Nev. 627, 708 P.2d 289 (1985); Jones v. State, 101 Nev. 573, 707 P.2d 1128
(1985). Moreover, it is well established in Nevada that the criteria, in addition to relevance,
for the admissibility of evidence in the penalty phase is that it be credible, and not dubious or
tenuous. See Jones, 101 Nev. at 578, 707 P.2d at 1132; Biondi v. State, 101 Nev. 252, 257,
699 P.2d 1062, 1065 (1985); Allen v. State, 99 Nev. 485, 488, 665 P.2d 238, 240 (1983). It is
clear to me, therefore, that the need for accuracy referred to by the majority, although
manifestly important, is not more so in the penalty phase than the guilt phase, as declared by
the majority. If the majority's premise were correct, the latitude accorded by NRS 175.552
and repeatedly recognized by this court, would be unacceptable. Instead, the statutory latitude
embraces such evidence as hearsay that would be inadmissible during the guilt phase,
providing the hearsay is not tenuous or dubious.
In the instant case, Detective Hatch was allowed to read to the jury a transcript of
co-defendant McDougal's confession. The confession corroborated the guilty determination
already reached and laid to rest by the jury in the guilt phase of Lord's trial. The State
successfully sought the introduction of McDougal's confession in order to solidify the jury's
conviction concerning Lord's guilt. The trial judge obviously viewed the confession as both
credible and probative and a less than tenuous source of detail concerning the commission of
the crime. Under our prior rulings cited above, the trial judge had the discretion to either
admit or exclude the confession, and I am of the opinion that there is an inadequate basis for
this court to conclude that the trial court's ruling constituted an abuse of its discretion.
Moreover, I agree with the Washington Supreme Court's determination that Bruton does not
apply to the penalty phase of a capital case. See State v. Grisby, 647 P.2d 6 (Wash. 1982) (en
banc).
There is an additional reason why Bruton should not apply to penalty hearings, at least
under Nevada law. In Nevada, if a trial judge views the State's evidence as being insufficient
to convict, the judge may issue a non-binding advisory instruction to acquit. If, after a verdict
of guilty, the trial judge disagrees with the jury's resolution of conflicting evidence, the judge
may grant the defendant a new trial. A post-verdict ruling on the sufficiency of the evidence
must be addressed to this court for disposition on appeal. See State v. Wilson, 104 Nev. 405,
760 P.2d 129 (1988).
107 Nev. 28, 48 (1991) Lord v. State
In the instant case, there was no advisory verdict, no granting of a new trial, and no
determination by this court on appeal that the evidence considered by the jury was insufficient
to support its verdict. It is apparent, therefore, that Lord's guilt has been finally determined. It
was so determined by the trial court when it permitted the trial to proceed to a penalty phase
without issuing an advisory instruction or granting a new trial.
Given the fact that the trial court did not see fit to intervene in the jury's determination of
Lord's guilt, it seems proper to me that the court allowed the co-defendant's confession as
further corroboration of the correctness of the jury's guilty verdict. The confession merely
reinforced what the jury had already placed to rest, and thereby enabled the jury to focus with
greater precision on the legitimate purposes of its penalty-phase deliberations. Indeed, when
the matter is considered anew upon remand by a different jury, the jury will necessarily be
informed that Lord's guilt has been determined and may not be reconsidered. See Jimenez v.
State, 106 Nev. 769, 801 P.2d 1366, (1990) (because guilty verdict was affirmed on appeal,
defense counsel was not entitled to argue capital defendant's innocence during new penalty
hearing). The effect of such an instruction to the new jury will be essentially the same as
hearing the confirmation of guilt through the co-defendant's confession. I must therefore
conclude that the Bruton rule has no place in the penalty hearing where the co-defendant's
confession would have no bearing on a determination of innocence or guilt.
For the reasons specified above, I respectfully dissent from that part of the majority's
ruling that applies Bruton error to a penalty phase of a capital case. In all other respects, I
concur that judgment was properly entered pursuant to a jury verdict of guilty, and that the
sentence of death must be vacated and the matter remanded for a new sentencing hearing
where Lord's witnesses may be heard on his behalf.
____________
107 Nev. 48, 48 (1991) State v. Bandics
THE STATE OF NEVADA, Appellant, v. ERNEST J. BANDICS, Respondent.
No. 21181
February 7, 1991 805 P.2d 66
Appeal from an order of the district court granting a petition for a writ of habeas corpus.
Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
Appeal was taken from order of the district court granting petition for writ of habeas
corpus. The supreme court, Young, J., held that State's mistaken release of state detainer
on prisoner incarcerated in federal prison did not preclude State from later
reincarcerating prisoner after mistake was discovered under principles of waiver,
equitable estoppel, and due process.
petition for writ of habeas corpus. The supreme court, Young, J., held that State's mistaken
release of state detainer on prisoner incarcerated in federal prison did not preclude State from
later reincarcerating prisoner after mistake was discovered under principles of waiver,
equitable estoppel, and due process.
[Rehearing denied May 2, 1991]
Mowbray, C. J., and Rose, J., dissented.
Frankie Sue Del Papa, Attorney General, Carson City; Karen M. Wright, Deputy Attorney
General, Las Vegas; Rex Bell, District Attorney, Clark County, for Appellant.
William Smith and Annette R. Quintana, Las Vegas, for Respondent.
1. Prisons.
Central issue in deciding whether State can lawfully reincarcerate prisoner who has been mistakenly released is whether State's
conduct amounts to more than ministerial error.
2. Constitutional Law; Estoppel; Extradition and Detainers; Prisons.
State's mistaken release of state detainer on prisoner incarcerated in federal prison did not preclude State from later reincarcerating
prisoner after mistake was discovered under principles of waiver, equitable estoppel, and due process, where mistake was result of
ministerial error. U.S.C.A.Const. Amends. 5, 14.
OPINION
By the Court, Young, J.:
On July 24, 1981, Ernest J. Bandics was convicted, pursuant to a guilty plea, of one count
of robbery with use of a deadly weapon and one count of grand larceny. NRS 200.380,
193.165, 205.220. Bandics was sentenced to two consecutive terms of fifteen years and one
consecutive term of ten years in the Nevada State Prison, to be served concurrently with the
twelve year federal sentence for bank robbery Bandics was already sentenced to serve.
In August of 1981, Bandics began his federal prison term. On March 24, 1988, the federal
correctional institution in Phoenix sent a detainer action letter to the Department of Prisons
in Nevada. That letter indicated that Bandics would be released on April 29, 1988, and that
the Department of Prisons should make arrangements to pick up Bandics.
On April 11, 1988, Sharon Montgomery, a warrant coordinator with the Nevada
Department of Prisons, wrote to Joyce Langhorst at the federal correctional institution in
Phoenix and, referring to an earlier phone conversation, indicated that Mr. Bandics was
discharged from his Nevada sentence on January 4, 1986 and this department has no further
interest in him. This information was apparently erroneous. On April 19, 1988, the federal
correctional institution in Phoenix sent another detainer action letter to the Nevada
Department of Prisons. This detainer action letter indicated that the detainer on Bandics had
been removed pursuant to the state's request.
On June 1, 1988, Bandics was paroled from his federal sentence. Bandics violated his
parole by using a controlled substance, and voluntarily reported this fact to his parole officer.
On February 24, 1989, Bandics was arrested by federal officials for violating parole. Bandics
was again paroled in September of 1989. On February 24, 1990, Bandics was arrested by
Nevada authorities, who had discovered their error in releasing the Nevada detainer on
Bandics.
On May 11, 1990, Bandics filed in the district court a petition for a writ of habeas corpus,
alleging that the state could not lawfully reincarcerate him. On June 22, 1990, the district
court granted Bandics' petition and ordered Bandics released from prison. This appeal by the
state followed.
[Headnotes 1, 2]
The district court, in granting Bandics' petition, found that principles of waiver, equitable
estoppel, and due process prevented the state from reincarcerating Bandics. In these
conclusions the district court erred. The central issue in deciding whether the state can
lawfully reincarcerate a prisoner who has been mistakenly released is whether the state's
conduct amounts to more than a ministerial error. See Green v. Christiansen, 732 F.2d 1397
(9th Cir. 1984); United States v. Merritt, 478 F.Supp. 804 (D.D.C. 1979). We emphasize that
the analysis must focus on the conduct of the state, not that of the former prisoner. Although
appellant did relapse after parole on one occasion and used drugs, we grant the point made in
the dissent that Bandics' adjustment to freedom appears to be otherwise free of crime.
Nevertheless, Bandics' behavior has no bearing on the question of whether the state has
committed more than a simple, ministerial error.
Our review of the record convinces us that the state's mistake here was nothing more than
ministerial error. Accordingly, we conclude that the district court's findings of waiver,
equitable estoppel and violation of due process are clearly erroneous and not supported by
substantial evidence. Accordingly, we vacate the district court's order granting Bandics'
petition for a writ of habeas corpus, and remand this matter to the district court for
further proceedings in light of this opinion.
the district court's order granting Bandics' petition for a writ of habeas corpus, and remand
this matter to the district court for further proceedings in light of this opinion.
Springer and Steffen, JJ., concur.
Mowbray, C. J., dissenting:
Respectfully, I dissent.
Respondent Bandics was serving a state sentence for robbery with a deadly weapon,
concurrently with a federal sentence already imposed. During respondent's term of
confinement at the federal prison at Lompoc, California, the Nevada Department of Prisons
Officer, Mr. Demosthenes, declined to accept respondent as a concurrent service of sentence
transfer due to space limitations. On May 10, 1984, Bandics was approved for federal parole
as of November 20, 1986. Bandics wrote to Demosthenes, informing him that he would soon
be referred for concurrent service of his sentence. Bandics received a reply that he was due
for a Parole Board hearing on his Nevada sentence in November, 1986.
On March 24, 1988, the United States Bureau of Prisons notified the State of Nevada
Department of Prisons of Bandics' anticipated date of release on parole and requested the
Nevada Department of Prisons to take custody of Bandics on April 19, 1988. The Nevada
Department of Prisons responded, stating that Bandics was discharged from his Nevada
sentence on January 4, 1986, and that the State of Nevada Department of Prisons had no
further interest in Bandics.
On April 13, 1988, the United States Bureau of Prisons informed Bandics that the State of
Nevada no longer had any interest in him, and that his release date was set for June 1, 1988.
Bandics was paroled on June 1, 1988 as scheduled. He registered as an ex-felon and resided
openly in Las Vegas. According to the district court, Bandics had become a worthwhile and
productive member of society, gainfully employed, free from the use of drugs or alcohol, and
conducting himself as a loving and responsible son and father, with plans to marry into a
family to whom he had proved himself to be a responsible caring person.
1

On February 24, 1990, the Nevada Department of Prisons discovered their mistake and
had Bandics arrested. Bandics brought a petition for a writ of habeas corpus to the district
court. The district court ordered the prison authorities to release Bandics, concluding that,
given the special circumstances of this case, they had relinquished jurisdiction and were
barred from exercising custody.
__________

1
According to respondent, he used drugs on one occasion and immediately sought counseling. Respondent
reported himself to his parole officer and was imprisoned from February 24, 1989 through September, 1989.
dics, concluding that, given the special circumstances of this case, they had relinquished
jurisdiction and were barred from exercising custody.
A purely ministerial mistake does not, by itself, give rise to a waiver of jurisdiction.
United States v. Merritt, 478 F.Supp. 804, 807 (D.D.C. 1979). However, where a defendant is
released through no fault of his own, as a result of actions which transcend simple neglect,
and where reincarceration is unequivocally inconsistent with fundamental principles of
justice, the state should not re-imprison the defendant. Id.
In the present case, respondent was released through no fault of his own. The State of
Nevada Department of Prisons unilaterally determined that they had no further interest in
Bandics. This disinterest seemed to be part of a pattern, considering that these authorities had
declined to exercise jurisdiction over respondent on a prior occasion as well.
Respondent's release was more than the result of simple negligence. When considering
the pattern of disinterest exhibited by the State of Nevada Department of Prisons, especially
when viewed in light of the frequent correspondence received from respondent and the
federal prison authorities, it becomes apparent that respondent's release was not the result of
some simple clerical error.
Finally, it is evident that the reincarceration of Mr. Bandics will violate fundamental
principles of justice. A defendant, once released from prison, should have the opportunity to
live down his past and reestablish himself. Shelton v. Ciccone, 578 F.2d 1421, 1245 (8th Cir.
1978). An arrest on an unexecuted sentence will interrupt reintegration into the community.
Id. In the present case, Mr. Bandics reintegrated into the community, located a job, developed
strong family relationships, and cultivated a prospective marriage. To rip Mr. Bandics out of
this environment and return him to prison will constitute the gravest injustice. Nothing can be
gained by forcibly severing a rehabilitated person from his ties in the community.
2

Respondent has become a reformed and productive member of society. By interfering with
respondent's rehabilitation, this court commits a gross miscarriage of justice.
Rose, J., joining Mowbray, C. J., in dissent:
I concur with the dissent's conclusion that reincarcertion of Mr. Bandics would violate
fundamental principles of justice. I reach this conclusion based on the facts previously
stated and that upon reincarcertion, Mr.
__________

2
It should be noted that Mr. Bandics had been a model prisoner who had availed himself of all educational
and vocational opportunities in order to become a productive member of society.
reach this conclusion based on the facts previously stated and that upon reincarcertion, Mr.
Bandics will have little additional time to serve until eligible for parole.
The attorney for the State explained during oral argument that Mr. Bandics will be entitled
to credit for the time that the State's own negligence kept him from serving in Nevada. Given
this credit, Bandics will be eligible for parole this summer. Since Mr. Bandics has made great
strides in his rehabilitation and has become a productive and law-abiding member of society,
it seems probable that he would be paroled at the first opportunity. Uprooting him now to
serve about six months before being paroled makes little sense when we consider the time he
has already served and the base of support he has established in Las Vegas.
For these reasons, I would affirm the order of the district court granting Bandics' petition
for a writ of habeas corpus.
____________
107 Nev. 53, 53 (1991) Emmons v. State
MARK STEWART EMMONS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20323
March 6, 1991 807 P.2d 718
Appeal from conviction of first degree murder with use of a deadly weapon and from
sentence of death. Eighth Judicial District Court, Clark County; Miriam Shearing, Judge.
The supreme court held that: (1) medical examiner was qualified to testify as expert
regarding radiological and orthopedic identification of victim's remains; (2) conduct of
inmate informant did not rise to level of custodial interrogation, and therefore defendant
did not have to be given Miranda warnings; (3) State's indiscretion in soliciting information
from police officer in violation of stipulation was harmless; (4) prosecutor's argument
regarding prospect of escape was permissible during penalty phase of capital murder trial; and
(5) violation of defendant's right to due process during penalty phase, which occurred when
prosecution only gave defendant one day's notice that it would admit evidence regarding prior
attempts to escape, was harmless beyond reasonable doubt.
Affirmed.
Schieck & Derke, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, Daniel M. Seaton, Deputy District Attorney, Clark
County, for Respondent.
1. Criminal Law.
Decisions regarding admissibility of expert testimony lie within discretion of trial court.
2. Criminal Law.
Expert testimony is not limited to experts with special training. NRS 50.275.
3. Criminal Law.
Trial court did not abuse its discretion in allowing medical examiner to render expert opinion regarding radiological and
orthopedic identification of victim's remains, where medical examiner testified that she had gained general knowledge of radiology and
orthopedics through her medical training, and gained expertise through her experience in the field. NRS 50.275.
4. Criminal Law.
Testimony regarding radiologist's opinion was admissible under general exception to hearsay rule, where radiologist was
disinterested witness with no apparent motive to lie. NRS 51.075, subd. 1.
5. Criminal Law.
Radiologist's letter regarding identification of victim's remains was not admissible under record of regularly conducted activity
exception to hearsay rule, where State failed to establish that letter was written in course of regularly conducted activity. NRS 51.135,
subd. 1.
6. Criminal Law.
Letter from radiologist regarding identification of victim's remains was admissible under general exception to hearsay rule, where
radiologist was disinterested witness with no apparent motive to lie. NRS 51.075, subd. 1.
7. Criminal Law.
Inmate informant's conduct did not rise to level of custodial interrogation, and thus defendant was not entitled to Miranda
warnings, where informant was not placed next to defendant intentionally, and law enforcement personnel did not contact informant,
but rather he went to them of his own accord and volunteered the information. Const. art. 1, 8; U.S.C.A.Const. amends. 5, 14.
If jury could reasonably infer from evidence presented that accused previously engaged in criminal activity, then reference to
accused's prior criminal history violates accused's due process rights and constitutes reversible error. Const. art. 1, 8; U.S.C.A.Const.
amends. 5, 14.
Police officer's testimony that he was told to regard defendant as armed and dangerous was not clear reference to defendant's prior
criminal history, and therefore did not violate defendant's due process rights, where jury could just as likely have associated defendant's
being armed and dangerous with murder offense for which he was being sought. Const. art. 1, 8; U.S.C.A.Const. amends. 5, 14.
Police officer's testimony that defendant said, following arrest, "I'm not going back," was not clear reference to
defendant's criminal history, and therefore did not violate defendant's due process rights, where defendant
was arrested in Washington, and jury could have inferred that defendant did not want to return to Nevada.
I'm not going back, was not clear reference to defendant's criminal history, and therefore did not violate defendant's due process
rights, where defendant was arrested in Washington, and jury could have inferred that defendant did not want to return to Nevada.
Const. art. 1, 8; U.S.C.A.Const. amends. 5, 14.
11. Criminal Law.
Trial court has discretion to grant or deny mistrial.
12. Stipulations.
Prosecutor's question to police officer as to whether defendant was under influence of drugs violated pretrial stipulation that
prosecution would not elicit testimony regarding defendant's use of marijuana; State's claim that it expected answer to be no based
on police report was unlikely.
13. Criminal Law.
Trial court's cautioning jury to disregard evidence to which objection had been sustained did not cure prosecutor's violation of
stipulation that prosecution would not elicit testimony regarding defendant's use of marijuana, where officer's remark was deliberately
solicited in response to specific questioning by prosecution, and remark was not followed immediately by specific admonition from
judge.
14. Criminal Law.
Prosecution's violation of stipulation by asking police officer whether murder defendant was under influence of drugs was
harmless, where officer's response was merely a single sentence in four-day trial, officer was cut off by defense counsel before he went
into any detail, and officer's response was not that strong.
15. Criminal Law.
Generally, failure to object below bars appellate review; however, supreme court may address plain error or issues of constitutional
dimension sua sponte.
16. Criminal Law.
Defense counsel's unsuccessful motion to preclude State from arguing possibility of escape to jury as basis for imposing death
penalty constituted sufficient objection to preserve issue for appellate review.
17. Criminal Law.
Prosecutor's argument during penalty phase of capital murder trial regarding prospect of escape was permissible, where it was
reasonable to infer from evidence of defendant's past conduct that he might escape in future.
18. Constitutional Law; Homicide.
Consistent with requirements of due process, defendant should be notified of any and all evidence to be presented during penalty
phase of capital murder trial. Const. art. 1, 8; U.S.C.A.Const. amends. 5, 14; NRS 175.552.
One day's notice of prosecution's intent to introduce notes received by officers from defendant's fellow inmate regarding
defendant's escape attempts was inadequate to meet requirements of due process during penalty phase of capital murder trial. Const.
art. 1, 8; U.S.C.A.Const. amends. 5, 14; NRS 175.552.
20. Criminal Law.
Error in admitting evidence in violation of defendant's constitutional rights to due process must be harmless beyond reasonable
doubt. Const. art. 1, 8; U.S.C.A.Const. amends. 5, 14.
21. Homicide.
Violation of defendant's right to due process during penalty phase of capital murder trial, which occurred when prosecution gave
defendant only one day's notice of intent to introduce notes received by officers from defendant's fellow inmate regarding defendant's
escape attempts, was harmless beyond reasonable doubt, even though defendant was denied opportunity to prepare proper rebuttal,
where other substantial evidence regarding defendant's planned or attempted escapes was introduced, including officers' testimony that
piece of metal was found in defendant's jail cell and that defendant was observed on wall ledge in recreation yard. Const. art. 1, 8;
U.S.C.A.Const. amends. 5, 14; NRS 175.552.
OPINION
Per Curiam:
Appellant Mark Stewart Emmons was charged with murder in the stabbing death of Jack
Perkins, Jr. He and an accomplice, Edward Hassett, hitched a ride with Perkins in Tucson,
Arizona, on December 26, 1985. While driving across the Nevada desert, the two men
decided to rob Perkins. In the process, Emmons stabbed Perkins. He and Hassett took Perkins'
possessions and left him for dead. The next day, Emmons pawned some of Perkins'
belongings in Las Vegas. Emmons and Hassett were arrested while driving Perkins' truck in
Bellingham, Washington, a few days later. Emmons was charged with murder with use of a
deadly weapon. His first trial resulted in a mistrial. Following his second trial, Emmons was
found guilty of first degree murder with use of a deadly weapon and was sentenced to die.
On appeal, Emmons alleges that numerous prejudicial errors occurred during the guilt and
penalty phases of his second trial. Because we hold that none of Emmons' contentions have
merit, we affirm his conviction and sentence.
Emmons first contends that the district court abused its discretion during the guilt phase by
allowing the deputy county medical examiner to render an expert opinion regarding
radiological and orthopedic identification of Perkins' remains. Emmons contends that the
medical examiner was not qualified as an expert as required by NRS 50.275. He further
contends that, absent a foundational finding that the medical examiner was qualified as an
expert, admission of her testimony was an abuse of discretion and was prejudicial to him
because without her testimony, the state could not establish the element of the corpus delicti.
[Headnotes 1-3]
Decisions regarding the admissibility of expert testimony lie within the discretion of the
trial court. Childers v. State, 100 Nev. 280, 283, 680 P.2d 598, 600 (1984). Moreover, NRS
50.275 is not limited to experts with special training, but includes those who have gained
expertise through "special knowledge, skill, experience, training or education. . . ."
50.275 is not limited to experts with special training, but includes those who have gained
expertise through special knowledge, skill, experience, training or education. . . . (Emphasis
added.) Here, the court impliedly determined that the examiner was qualified as an expert.
The medical examiner, a forensic pathologist, testified that she had gained general knowledge
of radiology and orthopedics through her medical training, and gained expertise through her
experience in the field. We hold that the court did not abuse its discretion in admitting the
medical examiner's testimony because she had received on-the-job training and thus qualified
as an expert. Cf. Watson v. State, 94 Nev. 261, 264, 578 P.2d 753, 755-56 (1978).
Emmons further contends that the district court committed reversible error during the guilt
phase by allowing the medical examiner to testify regarding a radiologist's concurring opinion
and by admitting into evidence a letter by the radiologist to support the medical examiner's
opinion. Emmons contends that the inculpatory testimony and letter were inadmissible
hearsay and that their admission violated his sixth amendment right to confront witnesses.
Hearsay evidence is evidence of a statement made other than by a testifying witness which
is offered to prove the truth of the matter asserted. NRS 51.035. The general rule is that
hearsay is inadmissible. NRS 51.065. However, NRS 51.075(1) provides that [a] statement
is not excluded by the hearsay rule if its nature and the special circumstances under which it
was made offer assurances of accuracy not likely to be enhanced by calling the declarant as a
witness, even though [the declarant] is available.
[Headnote 4]
Here, the radiologist was a disinterested witness with no apparent motive to lie. Therefore,
under the circumstances of this case, we hold that testimony regarding the radiologist's
opinion was admissible under the general exception to the hearsay rule. Cf. Johnstone v.
State, 92 Nev. 241, 244-45, 548 P.2d 1362, 1364 (1976).
[Headnotes 5, 6]
With respect to the radiologist's letter, we reject the state's contention that it falls under the
record of regularly conducted activity exception to the hearsay rule, because the state failed
to establish that the letter was written in the course of a regularly conducted activity as
required by NRS 51.135(1). See Hamm v. Sheriff, 90 Nev. 252, 254, 523 P.2d 1301, 1302
(1974). Nevertheless, for the same reasons we hold the radiologist's opinion admissible, we
hold that the radiologist's letter was admissible under the general exception to the
hearsay rule.
admissible, we hold that the radiologist's letter was admissible under the general exception to
the hearsay rule.
[Headnote 7]
Emmons next contends that the district court committed reversible error during the guilt
phase by failing to suppress the testimony of inmate informant James Litteral. While housed
next to Emmons in prison, Litteral, who had a reputation for being a snitch, contacted law
enforcement personnel and sent them written notes containing information he had obtained
from Emmons. Emmons contends that Litteral was functioning on behalf of law enforcement
by acting as an agent of the state, and that therefore Litteral was conducting the functional
equivalent of illegal custodial interrogations. He maintains that admission of Litteral's
testimony violated his due process rights under the Nevada Constitution and the fifth
amendment of the United States Constitution. He states that this constitutional violation
prejudice him because he claims that without Litteral's testimony, his accomplice's testimony
was uncorroborated.
[W]hen a jailhouse informant elicits incriminating information from an accused while
acting on his own initiative and not pursuant to any specific prior agreement with law
enforcement, the incriminating statements may be received in evidence against the accused
without violating his state or federal constitutional rights. Thompson v. State, 105 Nev. 151,
156, 771 P.2d 592, 596 (1989).
In this case, Litteral was not placed next to Emmons intentionally. Moreover, law
enforcement did not contact Litteralhe went to them of his own accord. In addition, Litteral
testified that Emmons had volunteered the information. Therefore, we hold that the conduct
in this case did not rise to the level of custodial interrogation. Accordingly, it was not
constitutionally mandated that Emmons be given his Miranda warnings. We conclude that no
constitutional rights were violated, and the court did not err in failing to suppress Litteral's
testimony.
Emmons next contends that the district court committed reversible error during the guilt
phase by denying a motion in limine and allowing the prosecutor to elicit evidence of
Emmons' prior criminal conduct. Over defense objections, Officer David Richards testified at
trial that he was told to regard Emmons as armed and dangerous. He also testified that, after
being arrested in Washington, Emmons said, among other things, I'm not going back.
Emmons contends that this testimony constituted inadmissible character evidence, the
admission of which violated his rights to due process and a fair trial under the Nevada and
United States Constitutions.
[Headnotes 8-10]
If a jury could reasonably infer from the evidence presented that the accused previously
engaged in criminal activity, then reference to the accused's prior criminal history violates the
accused's due process rights and constitutes reversible error. Witherow v. State, 104 Nev.
721, 724, 765 P.2d 1153, 1155 (1988). In this case, however, reference to Emmons' being
armed and dangerous was not a clear reference to his prior criminal history. The jury could
just as likely have associated Emmons' being armed and dangerous with the crime for which
he was being sought, rather than with any past criminal activity. The statement, I won't go
back, is even more ambiguous. The jury could have inferred from this statement that
Emmons did not want to return to Nevada, where the arrest warrant had been issued. It is
unlikely the jury took it to be a reference to Emmons' prior criminal history. Accordingly, we
hold that the testimony was not improperly admitted.
Emmons also contends that the district court committed reversible error during the guilt
phase by allowing the prosecutor to elicit information concerning his drug usage. Prior to
trial, the defense filed a motion in limine to preclude the state from introducing into evidence
testimony which allegedly related to Emmons' having offered to sell or purchase marijuana
from witness David Carrell. In response, the state stipulated to not ask questions of Carrell
which would elicit testimony regarding the defendant's use of marijuana. Nevertheless, at
trial the prosecutor asked Officer David Richards, And how about whether or not he was
under the influence of drugs? Richards responded, A little bit on the drugs. His pupils were
------
before defense counsel could interject an objection. The judge sustained the objection
but denied a motion for mistrial even though he concluded that the prosecutor had asked
about drugs deliberately. Emmons argues that admission of this improper testimony and
denial of his motion for mistrial deprived him of a fair trial in violation of the Nevada and
United States Constitutions.
[Headnotes 11, 12]
It is within the trial court's discretion to grant or deny a mistrial. Owens v. State, 96 Nev.
880, 883, 620 P.2d 1236, 1238 (1980). Although the state claims it had only stipulated to not
ask questions of Carrell, we disagree with its claim that the testimony elicited did not violate
the motion in limine. By the words of its own stipulation, the state was aware that defense
counsel objected to testimony regarding Emmons' drug use, rather than testimony by Carrell
only. Furthermore, the state's claim that it was surprised by the officer's testimony is
implausible. As the trial judge noted, the prosecutor deliberately asked Officer Richards
whether he observed Emmons to be on drugs.
he observed Emmons to be on drugs. The state's claim that it expected the answer to be no
based on the police report is unlikely since the state presumably interviewed the witness prior
to his testifying.
[Headnote 13]
The state argues that, even if admission of the evidence was erroneous, the error was cured
by a cautioning instruction given to the jury which told it to disregard evidence to which an
objection had been sustained. We hold that the instruction acted as an insufficient cure. Prior
Nevada cases in which instructions were found to cure improper remarks involved
inadvertent remarks not solicited by the prosecution which were cured by an immediate and
specific admonition by the judge. See, e.g., Allen v. State, 99 Nev. 485, 490, 665 P.2d 238,
241-42 (1983); Owens, 96 Nev. at 883, 620 P.2d at 1238. By contrast, the remark in this case
was not inadvertent or innocuous, but was instead a deliberately solicited remark made in
response to specific questioning by the prosecution. In addition, the remark was not followed
immediately by a specific admonition from the judge; rather, it was allowed in without
drawing attention to its impropriety.
[Headnote 14]
Nevertheless, despite the state's indiscretion in soliciting information in violation of the
motion in limine, we hold that the error was harmless. To begin, this was just a single
sentence in a four-day trial. The officer was cut off by defense counsel before he went into
any detail. Furthermore, the officer's response was not that strong. In light of the other
evidence supporting a finding of guilt, the error was not prejudicial.
Emmons next contends that the district court committed reversible error by allowing the
prosecutor to argue about escape at the penalty hearing. At the hearing, the prosecutor
described in detail Emmons' prior attempts at the plans for escape, and stated that although
the penalty would not change the past, what it might change is the future.
Emmons argues that the state's repeated references to his prior escape attempts and
speculation as to what might happen in the future are improper under Nevada case law. He
further argues that the state's argument violated the eighth amendment's heightened need for
reliability in death cases and deprived him of a fundamentally fair proceeding as required
under the due process clause of the Nevada Constitution and the fourteenth amendment of the
United States Constitution.
[Headnotes 15, 16]
The state's first response is that defense counsel did not object to the prosecutor's argument
at the time it was given. As a general rule, failure to object below bars appellate review;
but, we may address plain error or issues of constitutional dimension sua sponte.
general rule, failure to object below bars appellate review; but, we may address plain error or
issues of constitutional dimension sua sponte. Bradley v. Romeo, 102 Nev. 103, 105, 716
P.2d 227, 228 (1986); McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983).
Moreover, we have held that where a life is at stake, we will consider the allegations of
misconduct as if there had been compliance with the contemporaneous objection rule.
Flanagan v. State, 104 Nev. 105, 108, 754 P.2d 836, 837 (1988). In this case, prior to
argument defense counsel moved unsuccessfully to preclude the state from arguing the
possibility of escape to the jury as a basis for imposing the death penalty. We hold that the
motion below constituted a sufficient objection to preserve this issue for appellate review.
The state also responds that the argument was proper commentary on evidence of the
defendant's character and that no reference to the future possibility of escape was made. Even
if there was a reference to the future possibility of escape, the state argues, it was a proper
inference based on the evidence.
[Headnote 17]
Emmons urges us to follow Collier v. State, 101 Nev. 473, 479, 705 P.2d 1126, 1130
(1985), cert. denied, 486 U.S. 1036 (1988), in which we stated that [t]he prospect of escape
is not part of the calculus that the jury should consider in determining a defendant's sentence.
Accord Flanagan, 104 Nev. at 108, 754 P.2d at 838. Recently, however, we rejected a strict
interpretation of Collier and Flanagan and held that where there is evidence of a defendant's
past conduct which supports a reasonable inference that even incarceration will not deter the
defendant from endangering others' lives, a prosecutor is entitled to ask the jury to draw that
inference. Haberstroh v. State, 105 Nev. 739, 741, 782 P.2d 1343, 1344 (1989). Pursuant to
the holding of Haberstroh, the prosecutor's argument in this case was allowable because it
was reasonable to infer from the evidence of Emmons' past conduct that he might escape in
the future. Moreover, it is within the trial court's discretion to determine the admissibility of
evidence. Allen v. State, 99 Nev. 485, 489, 665 P.2d 238, 240 (1983). Therefore, we hold that
the argument regarding escape was properly admitted.
Emmons further contends that the district court committed reversible error at the penalty
hearing by admitting notes from an Elko jail informant regarding Emmons' escape attempts.
The day before the penalty hearing, the state informed defense counsel of its intent to call two
Elko Sheriff's officers regarding Emmons' attempts to escape while in prison and to introduce
notes received by the officers from Emmons' fellow inmate David Abranski. A defense
objection based on lack of notice and on the notes' unreliability was overruled, and the
evidence was admitted.
defense objection based on lack of notice and on the notes' unreliability was overruled, and
the evidence was admitted.
Emmons contends that just as prior notice to the accused is required before the state can
introduce evidence of aggravating circumstances, the due process clause of the United States
Constitution also requires that the state give prior notice of its intent to introduce additional
relevant evidence, such as the character evidence at issue here. He submits that one day's
notice does not meet the requirements of due process. He further contends that the notes from
Abranski were of dubious nature and that their admission denied him due process. He
contends that because he was surprised by the introduction of evidence at the last minute, he
was denied the opportunity to rebut the evidence, and was therefore prejudiced.
[Headnotes 18, 19]
NRS 175.552 provides that at the penalty hearing, [t]he state may introduce evidence of
additional aggravating circumstances . . . only if it has been disclosed to the defendant before
the commencement of the penalty hearing. We have held that the purpose of the statute is
to provide the accused notice and to insure due process so he can meet any new evidence
which may be presented during the penalty hearing. Deutscher v. State, 95 Nev. 669, 678,
601 P.2d 407, 413 (1979) (emphasis added). Consistent with the constitutional requirements
of due process, defendants should be notified of any and all evidence to be presented during
the penalty hearing. Although the state in this case did give the accused notice before the
commencement of the penalty hearing, it was only one day's notice. We hold that the notice
given in this case was inadequate to meet the requirements of due process. The evidence was
therefore improperly admitted. Cf. Browning v. State, 104 Nev. 269, 273 n.2, 757 P.2d 351,
353 n.2 (1988); Rogers v. State, 101 Nev. 457, 466-67, 705 P.2d 664, 671 (1985), cert.
denied, 476 U.S. 1130 (1986).
[Headnotes 20, 21]
Because the error in admitting the evidence violated Emmons' constitutional rights to due
process, the standard for determining whether that error was harmless requires that it be
harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967). See also
Weathers v. State, 105 Nev. 199, 202, 772 P.2d 1294, 1297 (1989). Applying this standard to
the instant case, although Emmons was denied the opportunity to prepare a proper rebuttal,
we hold that the error was harmless beyond a reasonable doubt. In addition to the notes, other
substantial evidence regarding Emmons' planned or attempted escapes was introduced: the
officers' testimony that a piece of metal was found in Emmons' jail cell and that Emmons
was observed on a wall ledge in the recreation yard.
in Emmons' jail cell and that Emmons was observed on a wall ledge in the recreation yard.
Therefore, the error in admitting the evidence does not warrant reversal. Having found no
prejudicial errors of constitutional or lesser magnitude in Emmons' trial or penalty hearing,
we hereby affirm his conviction of first degree murder with use of a deadly weapon and
sentence of death.
____________
107 Nev. 63, 63 (1991) Anderson v. SIIS
ROBERT ANDERSON, Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM, an
Agency of the State of Nevada, Respondent.
No. 20623
March 6, 1991 806 P.2d 1042
Appeal from an order of the district court affirming the decision of the appeals officer.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Appeal was taken from the district court order affirming decision of Department of
Administration appeals officer in workers' compensation case. The supreme court held that
worker who was awarded permanent partial disability benefits for his work-related back
injury, then aggravated his pre-existing injury after accepting new employment at a lower
wage, was entitled to benefits for second injury based on the wage base of his first job.
Reversed.
Greenman, Goldberg, Raby & Martinez, Las Vegas, for Appellant.
R. Scott Young, General Counsel, Carson City, and Virginia L. Hunt, Associate General
Counsel, SIIS, Las Vegas, for Respondent.
Workers' Compensation.
Worker who was awarded permanent partial disability benefits for his work-related back injury, then aggravated his pre-existing
injury after accepting new employment at a lower wage, was entitled to benefits for second injury based on the wage base of his first
job, where worker's subsequent injury would have been less serious absent initial injury.
OPINION
Per Curiam:
After injuring his back while working as a cab driver for Whittlesea Cab Company
{Whittlesea), appellant Robert Anderson filed his first claim for workman's compensation
with the State Industrial Insurance System {SIIS) in May of 19S5.
Whittlesea Cab Company (Whittlesea), appellant Robert Anderson filed his first claim for
workman's compensation with the State Industrial Insurance System (SIIS) in May of 1985.
SIIS accepted his claim and paid him permanent partial disability benefits based on his
reported wage of $1,354.51 per month. Anderson continued to have leg and back pain, and in
July of 1985, Anderson's doctor performed back surgery, a lumbar laminectomy.
In April of 1986, Anderson returned to work as a dispatcher for Bell Transportation (Bell).
Due to the fusion in his back from his surgery, Anderson was limited to jobs involving very
little lifting. At Bell, Anderson received $1,052.76 per month, approximately $300.00 less per
month than his previous salary at Whittlesea.
Anderson continued to experience pain in his back and legs even after his surgery. On
November 29, 1986, while working at Bell, Anderson's chair broke and he fell backwards
onto the floor. His doctor stated that this was a minor injury, but it precipitated an aggravation
of Anderson's pre-existing condition. SIIS treated this injury as a new claim, and gave
Anderson temporary total benefits based on his lower monthly wage at Bell.
On June 14, 1988, Anderson underwent a second surgery because his laminectomy, the
first surgery, did not fuse properly and it went in non-union.
On February 1, 1988, relying on SIIS v. Harrison, 103 Nev. 543, 746 P.2d 1095 (1987),
Anderson requested SIIS to recalculate his wage base according to the earlier salary.
1
SIIS
denied Anderson's request, on grounds that this case did not fall within the preview [sic] of
SIIS v. Harrison. Anderson appealed this denial to a hearing officer with the Department of
Administration. The hearing officer determined that SIIS correctly based Anderson's benefits
on his salary at the time of his second injury. Consequently, Anderson appealed the hearing
officer's decision to an appeals officer with the Department of Administration. The appeals
officer upheld the decision of the hearing officer, and Anderson appealed to the district court.
The district court denied Anderson's petition for judicial review and affirmed the appeals
officer's decision. The district judge specifically found that the record supports the appeals
officer's factual findings that there were two distinct accidents giving rise to two different
injuries.
__________

1
In a prior set of proceedings, Anderson moved to re-open the claim regarding the first injury. The hearing
and appeals officer denied Anderson's motion. Respondent now contends that the prior proceedings are res
judicata as to the issue of wage base. We find the record on appeal insufficient to support this assertion. See
Hines v. Plante, 99 Nev. 259 n.1, 661 P.2d 880 (1985) (contention on appeal must be supported by evidence in
the record).
record supports the appeals officer's factual findings that there were two distinct accidents
giving rise to two different injuries. This appeal by Anderson followed.
Resolution of the present appeal hinges on whether the facts fall within the purview of
SIIS v. Harrison.
2
In Harrison, the claimant (Harrison) had suffered a 1983 above-the-knee
amputation due to an infection which had developed at the site of a 1975 leg injury. Harrison,
103 Nev. at 544-545, 746 P.2d at 1097. After the 1975 accident, Harrison had obtained
employment at a lower salary. Id. at 547, 746 P.2d at 1098. SIIS contended that the $500.00
wage base Harrison was making just prior to the amputation should apply. Id. This court
rejected that contention, and instead applied a hypothetical wage base to account for the
diminished salary. Id. We noted that Harrison should not be penalized for obtaining
employment at a lower salary. Id.
The Harrison rationale applies to the present case. The medical evidence is clear that
Anderson's 1986 injury would have been much less serious absent the 1985 injury. Given the
clear relationship to the earlier injury, an award of the lower wage base would penalize
Anderson for accepting employment at a lower salary. We therefore conclude that the district
court erred in denying Anderson benefits based upon the higher wage base.
For the reasons stated above, the order of the district court is reversed.
____________
107 Nev. 65, 65 (1991) MGM Grand, Inc. v. District Court
MGM GRAND, INC. a Delaware Corporation, MGM DESERT INN, INC., A Nevada
Corporation, Petitioners, v. EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE
HONORABLE MICHAEL J. WENDELL, DISTRICT JUDGE, Respondents, THE
WALT DISNEY COMPANY, a Delaware Corporation, Real Party in Interest.
No. 21262
March 6, 1991 807 P.2d 201
Original proceedings in mandamus.
Petition was filed for writ of mandamus compelling the district court to vacate its order
quashing service of process on the basis that Nevada lacked jurisdiction over
non-resident defendant in declaratory judgment action in which petitioners sought
permission to use MGM name, logos, and trademarks of movie-theme park they intended
to build in Las Vegas.
__________

2
We note that the distinction between new injury and recurrence suggested in SIIS v. Swinney, 103 Nev.
17, 731 P.2d 359 (1987) is not critical to the determination of this issue. Instead, the question shall be whether
there is a sufficient nexus between the injuries to warrant use of the higher wage base.
court to vacate its order quashing service of process on the basis that Nevada lacked
jurisdiction over non-resident defendant in declaratory judgment action in which petitioners
sought permission to use MGM name, logos, and trademarks of movie-theme park they
intended to build in Las Vegas. The supreme court held that non-resident corporation was not
subject to personal jurisdiction in Nevada.
Petition denied.
Mowbray, C. J., dissented.
Lionel Sawyer & Collins, and David Frederick, Las Vegas; Beckley, Singleton, DeLanoy,
Jemison & List, Las Vegas, for Petitioners.
Monsey & Andrews, Las Vegas; Dewey Ballantine and Sanford M. Litvack, New York,
New York, for Real Party in Interest.
1. Corporations.
Non-resident corporation which operated MGM movie-theme park was not subject to personal jurisdiction in Nevada court in
action seeking declaratory judgment to permit plaintiff to use MGM name, logos, and trademarks for movie-theme park it intended to
build in Las Vegas; interstate judicial system's interest in obtaining most efficient resolution of controversies pointed toward allowing
dispute to be resolved one time in California where both parties had their primary place of business, plaintiff initially attempted to
litigate dispute in California indicating that plaintiff thought its true interest in obtaining convenient and effective relief could best be
served by having controversy adjudicated in California, and non-resident's contacts with Nevada were neither continuous nor
systematic.
2. Corporations.
Non-resident corporation's subsidiaries' contacts with Nevada could not be counted for purposes of determining whether personal
jurisdiction existed over non-resident in declaratory judgment action where non-resident exercised no more control over subsidiaries
than was appropriate for sole shareholder of corporation.
3. Corporations.
Plaintiff's unilateral attempt to challenge non-resident corporation's contractual rights to movie-theme parks in courts of Nevada
was insufficient to create minimum contacts with Nevada and was insufficient to establish personal jurisdiction.
4. Pretrial Procedure.
Petitioners waived claim that further discovery was needed where petitioners failed to press their discovery claims in trial court.
Trial court's limiting discovery in declaratory judgment action to non-resident defendant's Nevada subsidiaries and allowing only
deposition of non-resident defendant's president, not board chairman, was sufficient in connection with issue of whether court had
personal jurisdiction over non-resident in declaratory judgment action and within scope of trial court's wide
discretion; question of jurisdiction involved analysis of Nevada subsidiaries and president would have been
more knowledgeable than chairman of the board petitioner sought to depose.
diction over non-resident in declaratory judgment action and within scope of trial court's wide discretion; question of jurisdiction
involved analysis of Nevada subsidiaries and president would have been more knowledgeable than chairman of the board petitioner
sought to depose.
OPINION
Per Curiam:
This lawsuit, part of an on-going conflict between respondent Walt Disney Company
(Disney) and MGM, was filed by petitioner MGM Grand
1
in September 1989 in Clark
County. MGM Grand sought a declaratory judgment permitting it to use the MGM name,
logos, and trademarks on a movie-theme park it intends to build in Las Vegas.
Respondent answered by moving to quash service of process, contending that Nevada
lacked jurisdiction over Disney. This motion was granted, the court below holding that it was
neither reasonable nor constitutionally permissible to require the Defendant to litigate this
contractual dispute in Nevada.
MGM Grand and MGM Desert Inn now petition this court for a writ of mandamus
compelling the court below to vacate its order. Specifically, petitioners argue the following:
(1) that Disney, because of its contacts with the state of Nevada, is subject to the general
jurisdiction of this state's courts; (2) that Disney, because of its subsidiaries' Nevada contacts,
is subject to the general jurisdiction of the Nevada courts; and (3) that even if Disney lacks
contacts sufficient to render it subject to general jurisdiction, the fact that the cause of action
arises from Disney's Nevada activities makes the exercise of specific jurisdiction proper.
Finally, petitioners argue that even if all these contentions are rejected, this court should still
vacate the order of the court below and allow further discovery on the jurisdictional issue. We
reject all of petitioners' contentions, and therefore deny the petition.
[Headnote 1]
Petitioners' main contention is that respondent Walt Disney Co. (Disney) is subject to
personal jurisdiction in the courts of this state. We disagree. In Worldwide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 292 (1980), the United States Supreme Court pointed out that
questions involving personal jurisdiction mandate an inquiry into whether it is reasonable . .
. to require the corporation to defend the particular suit that is brought there. The Court then
enumerated several factors that are relevant to this inquiry: {1) the interstate judicial
system's interest in obtaining the most efficient resolution of controversies; {2) the forum
state's interest in adjudicating the dispute; {3) plaintiff's interest in obtaining convenient
and effective relief; and {4) the interest of the several states in furthering substantive
social policies. Id.
Our examination of these factors reveals that Judge Wendell aptly summarized this case
when he stated that it was "neither reasonable nor constitutionally permissible to require
the Defendant to litigate this contract dispute in Nevada."
__________

1
MGM Desert Inn (a Nevada corporation that is a subsidiary of MGM Grand) was later added as a
plaintiffand is now also a petitioner.
vant to this inquiry: (1) the interstate judicial system's interest in obtaining the most efficient
resolution of controversies; (2) the forum state's interest in adjudicating the dispute; (3)
plaintiff's interest in obtaining convenient and effective relief; and (4) the interest of the
several states in furthering substantive social policies. Id.
Our examination of these factors reveals that Judge Wendell aptly summarized this case
when he stated that it was neither reasonable nor constitutionally permissible to require the
Defendant to litigate this contract dispute in Nevada.
In analyzing this case, we are necessarily influenced by the fact that a substantially similar
litigation (initially filed by MGM Grand) is currently taking place in California. Although that
lawsuit differs in some respects from the instant action, the ultimate issue in the two cases is
the samenamely, whether and to what extent does MGM Grand possess the right to use the
MGM name in connection with movie-theme parks. Given the fact that California law
certainly applies to the claims, and the fact that both parties' primary place of business is in
California, we are bound to conclude that the interstate judicial system's interest in obtaining
the most efficient resolution of controversies clearly points toward allowing this dispute to be
resolved one timein California.
Another factor of special concern to us in the instant case is plaintiff's interest in obtaining
convenient and effective relief. Again, this interest points toward a denial of jurisdiction.
Although such a conclusion may at first seem counter-intuitive, it must be remembered that
MGM Grand initially attempted to litigate this dispute in California. This decision indicates
to us that MGM Grand (at least initially) thought that its true interest in obtaining convenient
and effective relief could best be served by having the controversy adjudicated in California.
Our conclusion that an exercise of personal jurisdiction would be improper is bolstered by
an examination of each of the potential bases for jurisdiction. To begin, the exercise of
general jurisdiction is not appropriate, because Disney's own contacts with the State of
Nevada, which amount to no more than advertising and promoting the company's California
theme parks, are neither continuous nor systematic. See Munley v. Second Judicial District
Court, 104 Nev. 492, 496, 761 P.2d 414, 416 (1988) (in-state advertising and promotion not
sufficient to create general jurisdiction).
[Headnote 2]
In addition, our review of the record convinces us that Disney exercises no more control
over its subsidiaries than is appropriate for the sole shareholder of a corporation.
for the sole shareholder of a corporation. Thus, Disney's subsidiaries' contacts may not be
counted for jurisdictional purposes. See Hargrave v. Fibreboard Corp., 710 F.2d 1154,
1159-61 (5th Cir. 1983).
[Headnote 3]
Finally, Disney is not subject to specific jurisdiction in Nevada. The dissent appears to
take the position that because Disney was granted worldwide exclusive rights to use the
MGM name in connection with movie-theme parks, it thereby acquired a worldwide
contact that allowed it (Disney) to be haled into court anywhere in the world. While we
understand the interest of the dissent in attempting to protect the interests of the Nevada
economy, we are unable to adopt this proposed reasoning, for to do so would exceed the
boundaries of personal jurisdiction and due process as those principles have been described
by the United States Supreme Court. Thus far the Supreme Court has required that before an
exercise of specific jurisdiction becomes proper, the defendant must purposefully establish
contacts with the forum state. Burger King v. Rudzewicz, 471 U.S. 462, 474 (1985). As the
Court has stated, [t]he unilateral activity of those who claim some relationship with a
non-resident defendant cannot satisfy the requirement of contact with the forum state. Id.
Here, MGM Grand's unilateral attempt to challenge Disney's contractual rights in the
courts of this state is not enough to create minimum contacts with Nevada. This is because
Disney has in no way directed any sort of action toward Nevada. Accordingly, specific
jurisdiction does not exist. See Shute v. Carnival Cruise Lines, 897 F.2d 377, 381 (9th Cir.),
cert. granted, 111 S. Ct. 39 (1990) (in order to find specific jurisdiction, cause of action must
arise out of defendant's affirmatively directed conduct toward forum state).
In short, we find that the factors enumerated by the United States Supreme Court lead to
the inexorable conclusion that Nevada's exercise of jurisdiction under the circumstances of
this case would be unreasonable. This holding is buttressed by the fact that none of the
traditional bases for exercising personal jurisdiction are present in this case.
[Headnotes 4, 5]
As a final matter, we reject petitioners' contention that further discovery is needed. In the
court below, and here, petitioners argued that broader discovery of Disney's subsidiaries
should have been allowed. Also, petitioners contended that they should have been allowed to
take the deposition of Michael Eisner, Chairman of the Board of Walt Disney Company. The
trial court limited discovery to Disney's Nevada subsidiaries and only allowed petitioners
to depose Frank Wells, Disney's president.
limited discovery to Disney's Nevada subsidiaries and only allowed petitioners to depose
Frank Wells, Disney's president.
Initially, we note that petitioners volunteered to limit discovery to the Nevada subsidiaries,
and informed the judge that Mr. Wells' deposition would be sufficient. In addition,
petitioners, in their memorandum of points and authorities opposing the motion to quash,
failed to claim that more discovery was needed. Consequently, because petitioners failed to
press their discovery claims in the court below, these claims were probably waived. See
Landmark Hotel v. Moore, 104 Nev. 297, 299, 757 P.2d 361, 362 (1988) (failure to object to
order of the court results in waiver of objection).
Even if petitioners' discovery claims were not waived, however, the trial court's rulings on
the discovery issues must be upheld. See Hahn v. Yackley, 84 Nev. 49, 54, 436 P.2d 215, 218
(1968), in which we held that there is wide discretion in the trial court to control the conduct
of pretrial discovery. . . .
Here, the trial court's rulings were certainly within the scope of this wide discretion. As
discussed above, the question of jurisdiction involved an analysis of Disney's in-state
subsidiaries; it was therefore reasonable to limit discovery to these in-state subsidiaries. Also,
the trial court's conclusion that Wells would be more knowledgeable than Eisner on this issue
was reasonable, since Wells was on the board of directors of many of the subsidiaries, and
Eisner was not. Consequently, we reject petitioners' arguments on this issue.
We deny the petition for writ of mandamus.
Questions of personal jurisdiction over a non-resident defendant are decided under the
minimum contacts analysis.
1
See Hanson v. Denckla, 357 U.S. 235 (1958); McGee v.
International Life Ins. Co., 355 U.S. 220 (1957); International Shoe Co. v. Washington, 326
U.S. 310 (1945). Under Nevada law two principal factors must be considered in determining
whether a court may constitutionally exercise personal jurisdiction over a given corporate
defendant: the significance of the defendant's contacts with the forum and the relationship of
the cause of action to those forum contacts. Wells Fargo & Co. v. Wells Fargo Exp. Co., 556
F.2d 406, 412-413 (9th Circ. 1977).
Disney's preliminary contact with Nevada is a contract. See Burger King Corp. v.
__________

1
Nevada's long-arm statute does not bar jurisdiction. This court has previously suggested that the intent of
the statute is to confer jurisdiction whenever federal due process requirements are met. Davis v. District Court,
97 Nev. 332, 338, 629 P.2d 1209, 1213 (1981).
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (a contract can be a contact).
2
The
contract at issue grants Disney the worldwide exclusive right to use the MGM name,
logos, trademarks, and films in connection with studio theme parks. This contract, if valid,
gives Disney the right to oust MGM Grand from using the MGM name in Nevada. While
this worldwide contact might seem somewhat intangible, it is certainly significant when
one considers the size of the project at issue. Moreover, this contact is directly related to the
declaratory judgment action. (One significant fact is that the contract contained a choice of
law clause, but not a choice of forum clause. This suggests that Disney anticipated being
haled into court in other jurisdictions where a controversy might arise.)
Disney's contacts with Nevada extend beyond the existence of the above contract. Disney
has purposefully directed its activities towards Nevada by taking the position that MGM's
planned theme park is inconsistent with Disney's contract.
3

MGM's complaint alleges that Disney seeks to prevent the plaintiffs from using the
MGM Grand' name with respect to the construction and operation of competitive enterprises
which would employ many people and generate substantial revenues in the State of Nevada,
particularly in the City of Las Vegas. It further alleges that, when advised that the building
and operation of an amusement park in Las Vegas was under consideration and when
plaintiffs' representatives expressed their plan to use the aforementioned marks, Disney flatly
disputed and denied the right to use said marks in any such connection.
Disney essentially concedes MGM's allegation. In a motion to quash service of process,
Disney states: Plaintiffs, who claim to have a plan to construct a movie theme park and
studio tour, know full-well that any such plan would be in complete derogation of Disney's
rights.
Jurisdiction is established when plaintiffs present facts which make a prima facie showing
of personal jurisdiction. Davis v. District Court, 97 Nev. 332, 337, 629 P.2d 1209, 1212
(1981). In the present case, a prima facie showing of jurisdiction has been met. Plaintiffs have
alleged, and Disney has apparently conceded, that Disney has taken a position inconsistent
with the use of the MGM name for the Las Vegas theme park.
__________

2
In Burger King, a Florida corporation obtained jurisdiction in Florida over a Michigan franchisee based
upon contract documents, and a relationship with the Miami headquarters. Burger King, 471 U.S. at 487.

3
In Burger King, the United States Supreme Court stated the following: So long as a commercial actor's
efforts are purposefully directed' towards residents of another state, we have consistently rejected the notion that
an absence of physical contacts can defeat jurisdiction there Burger King, 471 U.S. at 476.
MGM name for the Las Vegas theme park. Disney's conduct and actions will substantially
interfere with MGM's proposed park in Nevada.
4
See Calder v. Jones, 465 U.S. 783 (1984)
(California jurisdiction was available where defendant's intentional conduct in Florida was
calculated to injure a California plaintiff). Under such circumstances, a finding of jurisdiction
would comport with the traditional conceptions of fair play and substantial justice
mandated by International Shoe.
Finally, jurisdiction is present under the test pronounced in Asahi Metal Ind. v. Superior
Court of California, 480 U.S. 102 (1987). The Asahi opinion noted that in making a
jurisdictional inquiry, a court must consider several factors: (1) the burden on the defendant;
(2) the interests of the forum state; (3) the plaintiffs' interest in obtaining relief; (4) the
interstate judicial system's interest in obtaining the most efficient resolution of
controversies; and (5) the shared interest in the several states of furthering fundamental
social policies. Asahi, 480 U.S. at 113.
In the present case, the balance of factors lies in favor of jurisdiction. Disney is a large
corporation which can afford to litigate anywhere. Nevada's interest in a major construction
project is strong. Plaintiffs' interest in a quick adjudication of the issue is also strong.
Efficiency concerns support resolving the dispute prior to construction. When considering all
these factors, jurisdiction is present under the Asahi test.
___________
107 Nev. 72, 72 (1991) Junior v. State
WILLIE GEORGE JUNIOR, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21525
March 6, 1991 807 P.2d 205
Appeal from a judgment of conviction, pursuant to a bench trial, of three counts of being
under the influence of a controlled substance. Eighth Judicial District Court, Clark County;
Joseph T. Bonaventure, Judge.
Parolee was convicted in the district court of three counts of being under the influence of
controlled substance. Parolee appealed. The supreme court held that evidence of drug use
obtained by parole officer in his official capacity could be used in subsequent prosecution of
parolee for drug offense.
Affirmed.
__________

4
Meanwhile, Disney advertises and promotes its directly competing California and Florida attractions in
Nevada on a large scale.
Morgan D. Harris, Public Defender and Robert B. Amundson, Deputy, Clark County, for
Appellant.
James A. Tufteland, Deputy, Clark County, for Respondent.
1. Criminal Law.
Evidence of drug use obtained by parole officer in his official capacity could be used in subsequent prosecution of parolee for
being under the influence of controlled substance.
2. Pardon and Parole.
Parolee, who as a condition of parole was required to submit to urine tests, had no legitimate expectation of privacy in his urine
samples. U.S.C.A.Const. amend. 4.
As parole officer and peace officer, parole officer's duties include detection and prevention of crime; parolee cannot expect that
parole officer will ignore evidence that parolee has engaged in crime.
Parolee does not have reasonable expectation that criminal conduct will result only in revocation of parole and not in further
criminal prosecution.
There is no privileged relationship between parolee and parole officer which would prevent parole officer from disclosing to police
officer fact that parolee has committed a crime. NRS 213.1098.
Assuming that district attorney does not file charges against persons other than parolees who test positive for illegal drug use,
selection of particular cases for prosecution was within district attorney's discretion and exercise of that discretion did not violate right
to equal protection claimed by parolees who were not members of any discrete and insular minority in need of special protection.
U.S.C.A.Const. amend. 14.
OPINION
Per Curiam:
1

This is an appeal from a judgment of conviction, pursuant to a bench trial, of three counts
of being under the influence of a controlled substance. The district court sentenced appellant
to a total of twelve years in the Nevada State Prison. Pursuant to NRAP 34(f)(1), we have
determined that oral argument is not warranted in this appeal.
__________

1
This appeal was previously dismissed in an unpublished order. Pursuant to a request, we have determined
that our decision should be issued in a published opinion. Accordingly, we issue this opinion in place of our
order dismissing this appeal filed December 27, 1990.
While on parole for a drug related offense, appellant submitted samples of his urine to his
parole officer on March 7, 1990, April 7, 1990, and April 24, 1990. These tests were
mandatory under appellant's parole agreement; appellant voluntarily submitted to these
tests only in the sense that the samples were not taken by physical force, but were agreed to as
a condition of parole and were compelled by the threat of revocation of parole. Appellant's
parole agreement also expressly provided that appellant was not to take any illegal drugs
while on parole.
Appellant's first urine sample tested positive for marijuana, and the second and third
samples tested positive for cocaine. Appellant was ordered to participate in a treatment
program, which he successfully completed. Nevertheless, appellant then absconded, and a
warrant was issued for his arrest. Following his arrest, the district attorney charged appellant
with three counts of being under the influence of a controlled substance. Appellant waived his
right to a jury trial, and the matter was tried to the district court. This appeal followed the
district court's entry of a judgment of conviction of three counts of being under the influence
of a controlled substance.
Appellant contends that the state cannot base a felony drug charge against a parolee on the
results of tests of urine samples that the parolee was compelled to provide pursuant to a
parole agreement. Appellant asserts that a parolee has a fourth amendment privacy interest in
his bodily fluids, and that use of the samples for any purpose other than to revoke parole is a
violation of the fourth amendment.
Appellant argues that if the parolee were to refuse to submit to a test, the parolee would be
subject to revocation proceedings only, but could not be subjected to involuntary drug testing
unless the parole officer had probable cause to believe a crime was being committed.
Appellant acknowledges that urine samples are not testimonial in nature, but argues that urine
samples cannot be taken by force without probable cause. See Schmerber v. California, 384
U.S. 757 (1966).
Appellant asserts that, if a parole officer has probable cause to believe that a parolee is
under the influence of illegal drugs, the parole officer should read the parolee his Miranda
2
rights before the parolee submits to a test. Otherwise, according to appellant, the parole
officer should not be allowed to use a urine sample taken pursuant to a parole agreement for
purposes of an independent felony charge.
Appellant asserts that parole officers have a dual role under Nevada law; as parole officers
and as peace officers. Appellant contends that when they act as parole officers, the
evidence they obtain cannot be used in their role as peace officers.
___________________

2
See Miranda v. Arizona, 384 U.S. 436 (1966).
contends that when they act as parole officers, the evidence they obtain cannot be used in
their role as peace officers. These contentions lack merit.
[Headnote 1]
Appellant has not cited any relevant authority for the proposition that evidence of an
independent felony offense obtained by a parole officer in his official capacity cannot be used
in a subsequent prosecution for the offense, and we are aware of none.
3

[Headnote 2]
Further, appellant has conceded, as he must, in his reply brief that he had no legitimate
expectation of privacy in his urine sample. Indeed, the purpose of requiring a parolee to
submit to drug testing is to insure that additional crimes are not committed. Release on parole
is not a license for a parolee to engage in crime shielded from prosecution.
[Headnotes 3, 4]
Also, as a parole officer and a peace officer, a parole officer's duties include the detection
and prevention of crime. A parolee cannot expect that his parole officer will ignore evidence
that the parolee has engaged in crime. Nor does a parolee have a reasonable expectation that
criminal conduct will result only in revocation of parole and not in further criminal
prosecution.
[Headnote 5]
Appellant contends that, just as the state recognizes the existence of a privileged
relationship between a husband and wife, a doctor and patient, a lawyer and client of a priest
and confessor, the state should recognize the special privileged relationship between a parolee
and his parole officer. Appellant bases this assertion of privilege on NRS 213.1098, which
provides:
All information obtained in the discharge of official duty by a parole and probation
officer or employee of the board shall be privileged and shall not be disclosed directly
or indirectly to anyone other than the board, the judge, district attorney or others
entitled to receive such information, unless otherwise ordered by the board or judge
or unless necessary to perform the duties of the department.
__________

3
Miranda and Schmerber are not even remotely related to the situation in this case. The same is true of
every other authority cited to this court by appellant. Appellant asserts that no other state bases a felony charge
of being under the influence of a controlled substance on a sample of bodily fluid taken from a parolee pursuant
to a parole agreement. Appellant relies for this assertion on the affidavit of his counsel that counsel contacted
parole officers in several western states and they indicated that no such charges would be filed under the
circumstances of this case. The affidavit in question does not in any sense support the assertion of appellant that
no other state would prosecute a parolee for crimes committed while on parole. At best, the affidavit supports the
conclusion that the particular parole officers polled would not submit for prosecution a parolee who provides a
dirty urine sample. We deem this dubious authority for the proposition that we should order the state to ignore
appellant's criminal conduct while he is on parole.
be privileged and shall not be disclosed directly or indirectly to anyone other than the
board, the judge, district attorney or others entitled to receive such information, unless
otherwise ordered by the board or judge or unless necessary to perform the duties of the
department.
Appellant contends that the only persons entitled to receive the information are those
involved in the administration of the parole in question. Thus, appellant argues that it is
improper to disclose information obtained from a mandatory urine sample for the purpose of
a subsequent felony prosecution unrelated to the parole.
Again, appellant cites no authority for this novel proposition, and we are aware of none.
NRS 213.1098 creates no privilege between a parolee and a parole officer. Instead, NRS
213.1098 simply requires a parole officer to respect the privacy interests of the parolee except
where it is necessary to the completion of the officer's duty to disclose the information
obtained from a parolee. A parole officer is a peace officer, and has a duty to prevent the
commission of crime. Nothing in NRS 213.1098 precludes the state from using information
legitimately obtained by a parole officer in the prosecution of a separate crime.
Appellant argues that allowing this decision to stand will give a message to all parolees
that they should view their parole officers as police officers. Appellant suggests that parolees
will not be willing in the future to submit to drug tests required by their parole agreements.
Appellant asserts that a parolee is placed in a dilemma, because he must choose between
submitting to a test which may reveal the presence of illegal drugs, or having his parole
revoked. We do not find these arguments persuasive. If a parolee refuses to submit to a test,
his parole will be revoked. Thus, we perceive little danger that parolees will refuse to submit.
Further, the parolee's dilemma is easily solved; the parolee can refrain from the commission
of crime, and can submit a clean sample.
[Headnote 6]
Appellant contends that his fourteenth amendment right to equal protection has been
violated. Appellant argues that it is impermissible to select individuals for prosecution based
on arbitrary classifications. Appellant asserts that the state has impermissibly selected
parolees who submit urine samples showing drug use as a class for prosecution. With
absolutely no statistical evidence to support his assertions, appellant argues that others who
submit urine samples indicating drug use, such as athletes or employees who are required to
submit to drug testing, are not prosecuted for their crimes. Finally, appellant argues that,
because there are no written standards determining when a parolee who provides a dirty
urine sample will be prosecuted for a separate felony, the system is fundamentally unfair.
because there are no written standards determining when a parolee who provides a dirty urine
sample will be prosecuted for a separate felony, the system is fundamentally unfair.
Assuming, arguendo, the truth of appellant's dubious assumption that the district attorney
does not file charges against other individuals who test positive for illegal drug use, the
selection of particular cases for prosecution is within the discretion of the district attorney.
The exercise of that discretion, unless based on some impermissible criteria such as race or
religion, does not violate a particular defendant's right to equal protection. See Cairns v.
Sheriff, 89 Nev. 113, 508 P.2d 1015 (1973). Parolees are not members of any discrete and
insular minority in need of special protection. It is not arbitrary to require parolees to submit
to drug testing. When the state legitimately obtains evidence of a crime, the state acts
reasonably when it prosecutes the criminal. Thus, appellant's contention lacks merit.
Having concluded that appellant's contentions lack merit, we affirm the judgment of the
district court.
____________
107 Nev. 77, 77 (1991) State, Dep't of Mtr. Vehicles v. Long
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC
SAFETY, Appellant, v. ELAINE LONG, Respondent.
No. 21210
March 6, 1991 806 P.2d 1043
Appeal from a district court order reversing a decision of the Department of Motor
Vehicles and Public Safety revoking respondent's driving privileges. Eighth Judicial District
Court, Clark County; Myron E. Leavitt, Judge.
Motorist appealed administrative revocation of her driving privileges. The district court
reversed, and appeal was taken. The supreme court held that: (1) officer had reasonable
suspicion for initial stop, and (2) any failure to advise motorist of her rights under implied
consent statute did not warrant reversal absent showing of prejudice.
Frankie Sue Del Papa, Attorney General, Carson City; Grenville T. Pridham, Deputy
Attorney General, Las Vegas, for Appellant.
John G. Watkins, Las Vegas, for Respondent.
1. Administrative Law and Procedure.
If agency's factual findings are supported by evidence, those findings are conclusive and reviewing court's jurisdiction is confined
to questions of law.
2. Automobiles.
Officer's observation that vehicle entered intersection while traffic signal was red and then hesitated for three to five seconds
before proceeding when light turned green gave rise to reasonable suspicion warranting investigatory stop. U.S.C.A.Const. amend. 4.
3. Automobiles.
Officer's failure, when issuing revocation order to motorist who refused to take blood alcohol test, to verbally advise her of her
right to administrative hearing and judicial review, and her right to have temporary license issued, did not warrant reversal of
revocation absent showing of prejudice. NRS 484.385, subd. 1.
OPINION
Per Curiam:
Trooper Sigman stopped Respondent Elaine Long when she inched her vehicle into the
intersection while the traffic signal was red, in violation of NRS 484.283(7)(a).
1
When
Sigman smelled alcohol on or about Ms. Long, he administered several sobriety tests. Long
failed the tests, so Sigman arrested her. He later testified that upon arrest, he advised Long of
her rights and the consequences if she failed to submit to a breath or blood test. She refused to
take either test, and her driver's license was subsequently revoked.
The DMV held an administrative hearing, and the hearing officer upheld the revocation of
Long's license for a period of one year. Long appealed to the district court, which reversed the
agency decision and reinstated Long's driving privileges. The district court found that the
initial stop was made without legal justification and that there was a lack of substantial
compliance with the mandatory requirements of NRS 484.385.
2

We reverse the district court's findings and reinstate the hearing officer's revocation of
Long's driver's license.
__________

1
NRS 484.283 provides in relevant part:
7. Where the signal is a steady red signal alone:
(a) Vehicular traffic facing the signal must stop before entering the crosswalk on the nearest side of
the intersection where the sign or pavement marking indicates where the stop must be made . . . and . . .
must remain stopped or standing until the green signal is shown.

2
NRS 484.385 requires the arresting officer to advise the driver of the right to administrative and judicial
review of the revocation and to have a temporary license, and to issue a temporary license on a form approved
by the department if requested. The license is effective for 7 days including the date of issuance.
[Headnote 1]
If an agency's factual findings are supported by evidence, those findings are conclusive and
the court's jurisdiction is confined to questions of law. Nevada Emp. Sec. Dept. v. Nacheff,
104 Nev. 347, 757 P.2d 787 (1988); NRS 233B.135.
[Headnote 2]
The State contends that there was reasonable suspicion for an initial stop. We agree. In
determining the reasonableness of a stop, the court should consider the totality of the
circumstances and should remember that trained law enforcement officers are permitted to
make reasonable inferences and deductions that might elude an untrained person. United
States v. Cortez, 449 U.S. 411, 418 (1981). Sigman testified that he saw Long violate a
statute at a red light and then hesitate for three to five seconds before proceeding when the
light turned green. Therefore, there is evidence to support the hearing officer's finding of
reasonable suspicion.
[Headnote 3]
The State further contends that it substantially complied with NRS 484.385 and that Long
suffered no prejudice as a result of any alleged failure to advise her of her rights under the
implied consent statute. NRS 233B.135(3)(a) states that a court may reverse an agency
decision if the decision violates statutory provisions. Long claims that Sigman violated NRS
484.385(1), which requires the officer to advise the arrestee of the right to administrative and
judicial review of the revocation and the right to have a temporary license issued.
We have addressed this issue very recently in State, Dep't Mtr. Vehicles v. Pida, 106 Nev.
897, 803 P.2d 227 (1990). In Pida, the officer decided to revoke Pida's driving privileges for
failure to submit to an evidentiary test. Rather than serve Pida personally with the order of
revocation, the officer gave a copy of the order to a corrections officer, whom he observed
placing the document in Pida's property bag at the jail. We concluded, as did the district
court, that NRS 484.385(1) requires personal service of the order of revocation. However, we
reversed the district court because Pida failed to establish that his substantial rights were
prejudiced under NRS 233B.135(3).
In this case, Sigman also failed to comply with NRS 484.385(1). Although he issued Long
a revocation order, and she later testified that she read both sides when she got home, Sigman
did not verbally advise her of her right to an administrative hearing or judicial review. Also,
there was a box Sigman was required to check if a temporary license was being issued.
Sigman testified that he did not check the box or personally serve the order on Long, but
he advised her he was issuing her a seven day license, and he had the jailers put the
document in her bag.
serve the order on Long, but he advised her he was issuing her a seven day license, and he
had the jailers put the document in her bag.
The back side of the revocation informs the person of his/her rights pursuant to NRS
484.385. Because Long received an administrative and judicial review of the revocation, we
conclude that she suffered no prejudice as a result of Sigman's failure to advise her under the
statute. The only possible prejudice would be that she was deprived of driving for seven days.
However, Long never claimed that such prejudice occurred.
3

We conclude that the district court erred in reversing the hearing officer's decision. There
was evidence to support the finding of reasonable suspicion for the initial stop. Furthermore,
although Trooper Sigman did not substantially comply with NRS 484.385, we see no
prejudice as a result.
Accordingly, we reverse the order of the district court, and remand for the district court to
reinstate the revocation of Long's driving privileges.
____________
107 Nev. 80, 80 (1991) Hornwood v. Smith's Food King No. 1
SANFORD AND RITA HORNWOOD, Appellants, v. SMITH'S FOOD KING NO. 1 and
SMITH'S MANAGEMENT CORPORATION, Respondents.
No. 21084
March 6, 1991 807 P.2d 208
Appeal from a judgment of the district court awarding damages and attorney's fees to
appellant in an action for breach of a lease agreement. Eighth Judicial District Court, Clark
County; Earle W. White, Jr., Judge.
Shopping center landlords brought action against anchor tenant for breach of lease. The
district court found breach, but awarded no damages. Appeal and cross appeal were taken.
The supreme court, 105 Nev. 188, 772 P.2d 1284 (1989), reversed in part, affirmed in part,
and remanded. On remand the district court determined damages for diminished value of
shopping center. Landlords appealed. The supreme court held that: (1) trial court improperly
valued property on basis of market value rents that landlords could obtain if anchor lease did
not exist and improperly assigned to landlords rents for sublease of tenant's space; (2) tenant's
breach of lease entitled landlords to difference between present worth of property with anchor
tenant and present worth of property without anchor tenant; and (3) lost rent from shopping
center tenants and expenses associated with that lost rent could not be recovered by
landlords.
__________

3
We note that this opinion should not be read as an approval of the practice of not verbally advising
arrestees of their rights pursuant to NRS 484.385.
center tenants and expenses associated with that lost rent could not be recovered by landlords.
Affirmed in part, reversed in part, and remanded for further proceedings.
Marquis, Haney & Aurbach, Las Vegas, for Appellants.
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Respondents.
1. Damages.
Compensatory damages are awarded to make aggrieved party whole, and, where contracts are involved, these damages should
place plaintiff in position that plaintiff would have been in had contract not been breached.
2. Landlord and Tenant.
Trial court deciding landlords' damages for diminished value of shopping center after anchor tenant breached lease by ceasing
operations improperly valued property on basis of market value rents that landlords could obtain if anchor lease did not exist and
improperly assigned to landlords rents for sublease of tenant's space; tenant had executed lease years earlier and paid lower than
average rents as anchor tenant, and there were questions regarding tenant's obligations to collect rents from subtenants, to cure future
injury caused by subtenants, or to resolve disputes between subtenants and landlords.
Anchor tenant's breach of lease by ceasing operations at shopping center entitled landlords to difference between present worth of
property with anchor tenant and present worth of property without anchor tenant; phrase without the anchor tenant excluded any
value that shopping center could derive from tenant's current or future subtenants.
Award for diminished value of shopping center after anchor tenant breached lease by ceasing operations should not include
assignment of rents from tenant's tenants.
5. Judgment.
Prior decision that landlords were not entitled to damages for lost percentage rents after anchor tenant breached lease by ceasing
operations was res judicata as to issue of lost percentage rents.
Lost rent from shopping center tenants and expenses associated with that lost rent did not arise from anchor tenant's breach of
covenant to pay rent after it ceased operations and, therefore, could not be recovered by landlords; lost rent from other tenants and
expenses associated with that lost rent resulted from injury to the property and would be included in any damages that landlords
received for diminished value of shopping center.
7. Costs.
Trial court did not abuse discretion by awarding only $50,000 in attorney fees to prevailing landlords in action against anchor
tenant of shopping center, even though landlord's affidavits and time sheets demonstrated that they paid over $130,000 in attorney fees.
8. Costs.
Generally, in calculating attorney fees, court should consider qualities of advocate, character of work to be done, work actually
performed by lawyer, and result.
9. Costs.
Recoverable litigation costs are governed by law in effect at time of judgment.
10. Interests.
Landlords' damages for anchor tenant's breach of lease by ceasing operations at shopping center were not sufficiently known and
ascertainable to justify prejudgment interest.
OPINION
Per Curiam:
THE FACTS
In June 1975, respondent, Smith's Food King No. 1 (Smith's), executed an agreement to
lease 28,000 square feet of space in a 145,000 square foot shopping center now owned by
Sanford and Rita Hornwood (Hornwoods).
1
The thirty year lease required Smith's to pay
approximately $92,398.00 in minimum annual rent as well as percentage rent calculated at
1.5 percent of sales generated by the store during the previous calendar year, less the
aggregate amount of annual minimum rent paid.
2
On November 1, 1986, Smith's ceased its
grocery operations at the Hornwoods' shopping center. Thereafter, the Hornwoods did not
attempt to evict Smith's, and Smith's retained possession of the demised premises while
continuing to pay minimum rent.
3

The Hornwoods filed a suit approximately one month after Smith's ceased its operations in
their shopping center, alleging, among other things, that Smith's had breached an implied
covenant of continuous operation when it vacated the premises, and that this breach had
caused the shopping center to decline $2,500,000.00 in value, because Smith's was the
shopping center's anchor tenant.
4
At the conclusion of a bench trial, the trial court
agreed that Smith's had breached an implied covenant of continuous operation when it
vacated the premises; however, the trial court concluded that the Hornwoods were not
entitled to damages for this breach because: {1) Smith's had continued to pay minimum
rent; {2) the evidence did not support damages for percentage rent; and {3) "[a]s a
matter of law, diminution of property value to the shopping center as a result of the
closure of Smith's . . . [was] not compensable due to the unforeseeable nature of such
damages."
__________

1
The lease agreement was executed by the Hornwoods' predecessor in interest.

2
Smith's paid percentage rent in 1979 and in 1980, but because of insufficient sales volume, paid only the
minimum annual rent thereafter.

3
The Hornwoods argue that when Smith's ceases it operations in leased premises, they seldom turn the space
back over to the landlord for fear that the landlord will lease to another supermarket. Rather, Smith's retains
possession and either leaves the space empty or finds non-grocery store subtenants.

4
As Emanuel Halper points out in Shopping Center and Store Leases, 9.02(b) (1989), at page 257:
Shopping center landlords who discover that a tenant has stopped doing business are profoundly
disappointed. A vacant store of any kind,
At the conclusion of a bench trial, the trial court agreed that Smith's had breached an
implied covenant of continuous operation when it vacated the premises; however, the trial
court concluded that the Hornwoods were not entitled to damages for this breach because: (1)
Smith's had continued to pay minimum rent; (2) the evidence did not support damages for
percentage rent; and (3) [a]s a matter of law, diminution of property value to the shopping
center as a result of the closure of Smith's . . . [was] not compensable due to the unforeseeable
nature of such damages.
The Hornwoods appealed the trial court's ruling, and this court partially reversed, holding
that the diminution of value of the Hornwoods' shopping center caused by Smith's breach of
the implied covenant of continuous operation was not unforeseeable as a matter of law. See
Hornwood v. Smith's Food King, 105 Nev. 188, 772 P.2d 1284 (1989). This court found the
remaining issues raised in the Hornwoods' appeal to be without merit. Id. at 192, 772 P.2d at
1287.
The matter was remanded to the district court for a determination of damages for the
diminished value to the shopping center. Id. However, before the district court had an
opportunity to consider this issue, the Hornwoods petitioned the Nevada Supreme Court for a
rehearing, asserting that the measure of damages in Hornwood v. Smith's Food King did not
fit the case, and that Hornwood v. Smith's Food King should be modified to allow damages
for lost future percentage rent. This court denied the petition for rehearing for procedural
reasons. See Order Denying Rehearing, Case No. 18980, filed on June 23, 1989.
On September 5, 1989, the Hornwoods filed their motion for entry of judgment with the
district court, seeking $1,425,000.00 in damages. At the Hornwoods' request, the trial judge
did not conduct an evidentiary hearing, but instead relied upon the evidence produced at the
trial to assess damages. Thereafter, the trial court awarded the Hornwoods $5,000.00 for the
diminished value of their shopping center, without prejudgment interest, and assigned to the
Hornwoods the rents from two subleases secured by Smith's for Smith's shopping center
space. The trial court also awarded the Hornwoods $12,916.60 in costs and $50,000.00 in
attorney's fees. This appeal followed.
__________
whether rented or not, has a depressing effect upon a shopping center. Shopping center merchants depend
upon each other's presence to draw customers to the shopping center. When one of them stops doing
business, the draw is reduced. When an anchor tenant, such as a department store or a supermarket, stops
conducting business, the aroma of death may permeate the atmosphere.
COMPENSATORY DAMAGES
[Headnote 1]
Compensatory damages are awarded to make the aggrieved party whole and, where
contracts are involved, these damages should place the plaintiff in the position he would have
been in had the contract not been breached. Dalton Properties, Inc. v. Jones, 100 Nev. 422,
425, 683 P.2d 30, 31 (1984). The primary concern in this case then, asks whether the
Hornwoods were adequately compensated for their loss.
The Hornwoods argue the district court damage award for the diminished value of their
shopping center was inadequate, and insist that to be adequately compensated for their loss,
they should receive: (1) $1,425,000.00 for the diminished value of the shopping center; (2)
$301,354.00 for lost percentage rent on the contract; and (3) $258,000.00 for lost rent and
other expenses incurred on other tenancies in the shopping center. We will assess each claim
for damages separately.
A. Damages for Diminished Value.
In the first appeal of this case, we remanded the matter back to the district court and cited
Washington Trust Bank v. Circle K Corp., 546 P.2d 1249 (Wash.Ct.App. 1976), for the
appropriate measure of damages. Washington Trust assessed damages by the difference
between the present worth of the property with the lease less the present worth of the
property without the lease. Id. at 1252. Upon remand, the district court below evidently felt
compelled to ignore the existence of Smith's lease on the subject property in applying the
Washington Trust damage formula. We conclude that this was a misapplication of the
Washington Trust measure of damages in light of the facts of this case.
1.
[Headnote 2]
When an appellate court states a principle or rule of law necessary to a decision the
principle or rule becomes the law of the case and must be followed throughout its subsequent
progress, both in the lower court and upon subsequent appeal. Wickliffe v. Sunrise Hospital,
104 Nev. 777, 780, 766 P.2d 1322, 1324 (1988). However, [i]n law as elsewhere words of
many-hued meanings derive their scope from the use to which they are put. Powell v. U.S.
Cartridge Co., 339 U.S. 497, 529 (1950) (dissenting opinion). The clear intent of Washington
Trust, as well as our prior ruling in this matter, was to place the aggrieved party in the
position they would have been in had the breach of contract not occurred.
After it assumed the nonexistence of Smith's lease on the subject property, the district
court accepted an appraisal that likewise assumed the nonexistence of Smith's lease.
Following these assumptions, the property was valued based upon market value rents that the
Hornwoods could obtain on the property if Smith's lease did not exist. Thereafter, the
Hornwoods' damages for the diminished value of the shopping center were set at $5,000.00.
However, the market value rents used to reach this damage award were substantially
greater than the minimum rent Smith's continued to pay the Hornwoods on Smith's lease
because Smith's had executed their lease years earlier and paid lower than average rents as an
anchor tenant. Obviously, the Hornwoods could not mitigate their damages by releasing the
subject property for its market value because of Smith's lease. Thus, to make the facts of this
case fit the district court's assumption that Smith's lease did not exist, the district court
ordered Smith's to assign its subtenant rents on the property over to the Hornwoods. This,
however, did not make the facts of the case fit the district court's assumptions.
First, the Hornwoods are not guaranteed market value rents on the subject property for the
duration of Smith's lease: the Hornwoods do not have privity of contract or privity of estate
with Smith's subtenants and, accordingly, must depend upon Smith's to maintain current and
future subleases on the property. We conclude it would be improper to force the Hornwoods
into such a precarious position. Second, the district court order awarding damages to the
Hornwoods does not guarantee the quality of future subleases on the subject property, or even
require Smith's to sublease this property upon the termination of current subleases. Finally,
questions arise regarding Smith's obligations to: (1) collect rents from subtenants; (2) cure
future injury to the property caused by the subtenants; or (3) resolve disputes between
subtenants and the Hornwoods. We believe the Hornwoods are justified in their concern that
Smith's may consider itself relieved of all future liability if the district court's order is
affirmed.
In short, we conclude that the district court damage award is mired in confusion and
illusory assumptions that beg for future litigation and court intervention. We likewise
conclude that the district court damage award does not guarantee the accuracy of the court's
assumption that the Hornwoods would continuously receive market value rents on the subject
property for the duration of Smith's lease. Accordingly, we believe the district court should
have interpreted the Washington Trust measure of damages to fit the facts of this case, rather
than manipulating the facts of the case to fit the damage formula.
2.
[Headnote 3]
It is clear from our prior ruling that the Hornwoods were to receive adequate compensatory
damages upon remand. Therefore, the district court should have construed the Washington
Trust measure of damages as the difference between the value of the shopping center
immediately before and immediately after the breach that caused the injury. See 22 Am.Jur.2d
Damages 401 (1988). In other words, damages in this case should be assessed as the present
worth of the property with the anchor tenant less the present worth of the property without the
anchor tenant. Further, we define without the anchor tenant in this opinion to exclude any
value the shopping center may derive from Smith's current subtenants, or from any subtenants
Smith's acquires for the demised premises in the future. We so define without the anchor
tenant because of uncertainties created by Smith's breach of contract and to insure the
Hornwoods adequate compensatory damages.
[Headnote 4]
Therefore, we reverse the district court's damage award and assignment of subtenant rents
and remand this matter back to the district court for a recalculation of damages for the
diminished value of the shopping center.
5

B. Lost Percentage Rents.
[Headnote 5]
Next, Hornwoods assert that they are also entitled to $301,354.00 in lost percentage rents.
We disagree.
Once a court of competent jurisdiction decides an issue between the same parties in the
same cause of action, the relitigation of that issue is barred by the doctrine of res judicata.
Alitalia-Linee Aeree v. District Court, 92 Nev. 638, 640, 556 P.2d 544, 545 (1976). After the
trial, the district court concluded that the Hornwoods were not entitled to damages for lost
percentage rents. This court affirmed this finding in the first appeal. Hornwood v. Smith's
Food King, 105 Nev. at 192, 772 P.2d at 12S7.
__________

5
We should note for clarity that any future damage award for the diminished value of the shopping center
should not include an assignment of rents from any subtenants Smith's has or will secure on the subject property.
Therefore, Smith's can attempt to recoup some of the amounts it pays for any damage award by maintaining
subtenants for its lease in the shopping center and keeping the rents received from its subtenants. Nothing in this
opinion should be construed, however, to release Smith's from its obligation to pay minimum rent on its lease
with the Hornwoods.
1287. Therefore, we rule that the Hornwoods are barred from relitigating the issue of lost
percentage rents.
C. Lost Rent on Neighboring Tenancies.
[Headnote 6]
Next, the Hornwoods argue that the diminished value of their shopping center will cause
other tenants therein to default on their leases, and will cause future tenants to negotiate lease
contracts for less rent. Accordingly, the Hornwoods argue they are entitled to $258,000.00 in
damages for lost rent from other tenants and expenses associated with that lost rent. We
disagree.
These damages do not arise from a breach of Smith's covenant to pay rent; rather, these
damages will result from the injury to the property, and will be included in any damages the
Hornwoods receive for the diminished value of the shopping center. If the Hornwoods invest
the damage award they receive for the diminished value of their shopping center back into the
center, they should be in a position similar to their position prior to the breach of contract,
and the rents from neighboring tenants in the shopping center should not decrease.
6

ATTORNEY'S FEES
[Headnote 7]
The Hornwoods argue that the district court abused its discretion in awarding only
$50,000.00 in attorney's fees. The Hornwoods submitted affidavits and time sheets
demonstrating that they had paid over $130,000.00 in attorney's fees, and accordingly, they
seek an award for that amount in this appeal.
[Headnote 8]
Generally, in calculating attorney's fees, the court should consider the qualities of the
advocate, the character of the work to be done, the work actually performed by the lawyer,
and the result. Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33
(1969). However, unless there is a manifest abuse of discretion, a district court award of
attorney's fees will not be overturned on appeal. County of Clark v. Blanchard Constr. Co., 98
Nev. 488, 492, 653 P.2d 1217, 1220 (1982). We conclude that the district court did not
manifestly abuse its discretion in its award of attorney's fees to this point.
7
COSTS
__________

6
However, this does not preclude the district court's consideration of damages for lost rent from neighboring
tenants that accrued during the pendency of this litigation.

7
Of course, additional attorney's fees may be appropriate in light of the added legal work needed to secure
an adjustment in the damage award.
COSTS
[Headnote 9]
Recoverable litigation costs are governed by the law in effect at the time of judgment.
Farmers Home Mutual Ins. v. Fiscus, 102 Nev. 371, 376-377, 725 P.2d 234, 237 (1986). The
Hornwoods filed a memorandum of costs and disbursements, but the district court refused to
award $7,343.00 of the costs requested by the Hornwoods because this amount represented
expenses for photocopies, long distance telephone calls, travel, lodging and other expenses.
All of these expenses are recoverable under a 1989 amendment to NRS 18.005, which was in
effect at the time of judgment.
8
Therefore, the Hornwoods are entitled to any amounts paid
for these costs.
PREJUDGMENT INTEREST
[Headnote 10]
Finally, the trial court refused to award prejudgment interest to the Hornwoods. We affirm
the district court on this issue.
Prejudgment interest on a damage award is only allowed where the damage award is
known or ascertainable at a time prior to entry of judgment, either by reference to amounts
fixed by the contract, or from established market prices. Jeaness v. Besnilian, 101 Nev. 536,
541, 706 P.2d 143, 147 (1985). Neither the contract nor established market prices render the
damage awards in this case sufficiently known and ascertainable to justify prejudgment
interest.
CONCLUSION
In sum, while we affirm the district court's decision regarding lost percentage rents, lost
future rents, and prejudgment interest, we nonetheless find that the district court failed to
properly assess the Hornwoods' damages for the diminished value of the shopping center.
__________

8
NRS 18.005 currently provides in relevant part:
18.005 Costs defined. For the purposes of NRS 18.010 to 18.150, inclusive, the term costs means:
. . . .
11. Reasonable costs for telecopies.
12. Reasonable costs for photocopies.
13. Reasonable costs for long distance telephone calls.
14. Reasonable costs for postage.
15. Reasonable costs for travel and lodging incurred taking depositions and conducting discovery.
16. Any other reasonable and necessary expense incurred in connection with the action.
Prior to the 1989 amendment, NRS 18.005 did not define the foregoing items as costs.
the Hornwoods' damages for the diminished value of the shopping center. We likewise
conclude that the district court erred in its calculation of costs. Accordingly, we remand this
matter for further proceedings.
____________
107 Nev. 89, 89 (1991) Citti v. State
RICHARD JOSEPH CITTI, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20934
March 6, 1991 807 P.2d 724
Appeal from judgment on one count of Causing the Death of Another by Driving While
Having 0.10 Percent or More by Weight of Alcohol in the Blood, and one count of Causing
Substantial Bodily Harm to Another by Driving While Having 0.10 Percent or More by
Weight of Alcohol in the Blood. Second Judicial District Court, Washoe County; Roy L.
Torvinen, Judge.
Defendant was convicted in the district court on his plea of guilty, of causing the death of
another by driving while having 0.10 percent or more by weight of alcohol in the blood and of
causing substantial bodily harm to another by driving while having 0.10 percent or more by
weight of alcohol in the blood, and sentenced to concurrent terms of six and eight years.
Defendant appealed. The supreme court held that: (1) district attorney breached plea
agreement, and (2) specific performance of plea was the appropriate remedy.
Remanded for New Sentencing.
Daniel L. McCormick, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Dorothy Nash Holmes, District
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
When State enters plea agreement, it is held to the most meticulous standards of both promise and performance; violation of terms
or spirit of plea bargain requires reversal.
2. Criminal Law.
District attorney breached plea agreement by refusing to argue for cap of five years and two years on sentences for crimes to
which defendant pleaded guilty; fact the district attorney did not agree with bargain reached by his deputy afforded no basis for
refusing to perform terms of executed agreement.
107 Nev. 89, 90 (1991) Citti v. State
3. Criminal Law.
Appropriate remedy for district attorney's breach of plea agreement in refusing to argue for cap of five years and two years on
sentences for crimes to which defendant pleaded guilty was specific performance.
OPINION
Per Curiam:
Facts
On August 9, 1989, Richard Joseph Citti (Citti) was charged by way of information with
(1) Causing the Death of Another by Driving a Vehicle While Intoxicated; (2) Causing the
Death of Another by Driving While Having 0.10 Percent or More by Weight of Alcohol in
the Blood; (3) Involuntary Manslaughter; (4) Causing Substantial Bodily Harm to Another by
Driving a Vehicle While Intoxicated; and (5) Causing Substantial Bodily Harm to Another by
Driving While Having 0.10 Percent or More by Weight of Alcohol in the Blood. A Washoe
County Deputy District Attorney and Citti agreed to a plea bargain. The terms of the
agreement were that Citti agreed to plead guilty to Count II
1
and Count V
2
in exchange for
the State's agreement to (1) move to dismiss all other charges; (2) recommend no more than
five years in the state prison on Count II, and no more than two years on Count V, sentences
to run concurrent; and (3) a fine of $2,000. The court accepted the guilty pleas.
On December 11, 1989, the Washoe County District Attorney wrote a letter to Citti's
counsel and on the next day filed a motion to file the letter with the court. The letter informed
Citti's counsel that the District Attorney would not agree to a cap of five years and two years
on the sentences. The District Attorney then offered either to concur with the
recommendation of the Probation Department or to go to trial. Thereafter, the District
Attorney asked for a hearing in Judge Forman's chambers. During the hearing, the District
Attorney again stated that he would not perform the plea bargain and explained his reasons
for noncompliance. One reason stemmed from a pending DUI charge against Citti in
California. The other reason was based upon the Deputy District Attorney's failure to discuss
the plea agreement with the victims' families before entering into the bargain with Citti.
At the sentencing, the District Attorney again declared his disagreement with the plea
bargain and his refusal to comply with it.
__________

1
Causing the Death of Another by Driving While Having 0.10 Percent of More by Weight of Alcohol in the
Blood.

2
Causing Substantial Bodily Harm to Another by Driving While Having 0.10 Percent or More by Weight of
Alcohol in the Blood.
107 Nev. 89, 91 (1991) Citti v. State
disagreement with the plea bargain and his refusal to comply with it. Citti's counsel objected
to the statements and requested specific performance. Later in the proceedings, Citti's counsel
suggested that Judge Forman had become tainted because of the breach. Judge Forman
reassigned the sentencing to a new judge over objection by the District Attorney.
On February 2, 1990, Judge Torvinen heard the matter. Citti's counsel again argued for
specific performance, and the District Attorney again refused to comply with the plea bargain.
Citti's counsel again objected to the District Attorney's rejection of the agreement. Judge
Torvinen refused specific performance and sentenced Citti to eight years and six years on the
two counts, the sentences to run concurrently.
3
Citti appeals.
Discussion
[Headnote 1]
When the State enters a plea agreement, it is held to the most meticulous standards of
both promise and performance.'. . . The violation of the terms or the spirit' of the plea bargain
requires reversal. Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986)
(citation omitted). The State concedes the above standard applies to this case, but it argues a
wooden application of the standard is unwarranted. The State fails, however, to cite any
authority that justifies its position, and we therefore reject the argument. Tahoe Village Realty
v. DeSwet, 95 Nev. 131, 136, 590 P.2d 1158, 1162 (1979).
[Headnote 2]
Citti performed his part of the plea bargain when he pleaded guilty to Counts II and V. The
District Attorney, however, refused to argue for a cap of five years and two years at the
sentencing as required by the terms of the plea agreement. The District Attorney's purposeful
rejection of the agreement hardly conforms to the most meticulous standards of both promise
and performance. We therefore hold that the District Attorney breached the plea agreement.
__________

3
The following exchange took place after the sentencing.
THE COURT: The reason I sentenced Mr. Citti was because if this keeps going this way, I should
probably properly disqualify myself and assign the thing to another judge, and if the District Attorney
gets up in front of the other judge and breaches the plea bargain again, he should disqualify himself and
send it to another judge.
When we have gone through all nine judges in the district court here, we haven't accomplished
anything. I sentenced the defendant, and I assume you will take the proper appellate remedies.
[CITTI'S COUNSEL]: That's correct, your honor.
THE COURT: And we'll get this thing settled without having to go through all nine judges.
107 Nev. 89, 92 (1991) Citti v. State
breached the plea agreement. The fact that the District Attorney did not agree with the bargain
reached by his deputy affords no basis for refusing to perform the terms of the executed
agreement. Obviously, if a district attorney wishes to review and approve plea agreements, he
or she must do so prior to their execution. Additionally, if the State intends to enter into a
plea agreement on the basis of an understanding that the defendant has committed no
additional offenses up to the date of the agreement, such a reservation or condition should be
clearly specified in the agreement along with the specific reservations of right in the State if
other such offenses come to light.
The next issue to determine is the appropriate remedy for breach of the agreement by the
State. We have previously agreed with the following pronouncement by the California
Supreme Court:
The goal in providing a remedy for breach of the [plea] bargain is to redress the
harm caused by the violation without prejudicing either party or curtailing the normal
sentencing discretion of the trial judge. The remedy chosen will vary depending on the
circumstances of each case. Factors to be considered include who broke the bargain and
whether the violation was deliberate or inadvertent, whether circumstances have
changed between entry of the plea and the time of sentencing, and whether additional
information has been obtained that, if not considered, would constrain the court to a
disposition that it determines to be inappropriate. . . .
The usual remedies for violation of a plea bargain are to allow defendant to
withdraw the plea and go to trial on the original charges, or to specifically enforce the
plea bargain. Courts find withdrawal of the plea to be the appropriate remedy when
specifically enforcing the bargain would have limited the judge's sentencing discretion
in light of the development of additional information or changed circumstances
between acceptance of the plea and sentencing. Specific enforcement is appropriate
when it will implement the reasonable expectations of the parties without binding the
trial judge to a disposition that he or she considers unsuitable under all the
circumstances.
Van Buskirk, 102 Nev. at 243-44, 720 P.2d at 1216 (quoting People v. Mancheno, 645 P.2d
211, 214-15 (Cal. 1982)). This court must then decide whether specific performance or
withdrawal of the plea is the appropriate remedy.
[Headnote 3]
The Van Buskirk case lists four factors this court will consider before determining the
appropriate remedy. The first two factors in the inquiry are easily answered.
107 Nev. 89, 93 (1991) Citti v. State
in the inquiry are easily answered. First, the District Attorney breached the agreement, and
second, the breach was clearly intentional. Third, there was an arguable change of
circumstances between the entry of the plea and the time of sentencing. The Deputy District
Attorney was apparently unaware of the pending DUI charge in California when the
agreement was entered. Nevertheless, the DUI charge was in existence when the negotiations
began and there is no evidence that Citti intentionally suppressed this information. The
alleged change of circumstances was not a sufficient reason to deprive Citti of the benefit of
his bargain. Fourth, the pending DUI charge was included in the presentencing report. Both
sentencing judges below had access to the report and made references to it. Therefore, there
was no new or unknown information constraining the judge from entering a suitable
disposition. Had the District Attorney complied with the agreement, either judge would have
been free to impose any authorized sentence.
4

After considering the four factors above, we have concluded that specific performance is
the proper remedy in this case. Specific performance is appropriate when it will implement
the reasonable expectations of the parties without binding the trial judge to a disposition that
he or she considers unsuitable under all the circumstances. Id. Citti reasonably expected that
a plea bargain entered into with a Deputy District Attorney would be respected. Moreover, the
Deputy District Attorney, an experienced prosecutor, likewise had reason to expect that the
agreement she executed on behalf of the District Attorney would be respected by the State.
There is no new information or change of circumstances binding the sentencing court to an
unsuitable disposition. After the District Attorney strictly complies with the terms of the
agreement, the trial judge will be free to impose any sentence allowable under relevant
statutes, provided, however, that under the circumstances of this case, such sentence will
not, in any event, exceed the sentence imposed by Judge Torvinen.
__________

4
Indeed, Judge Torvinen felt it was the District Attorney's actions that impacted his discretion. He stated:
Well to reiterate, it puts me in a difficult position. If I give him more than five years, it's my
understanding of the cases, not having read them recently, that the matter will come back and we will
have to do it over again.
Had the District Attorney not made that comment and lived with the plea bargain, I'd be free to do
what I wanted to do within the statute, based on the arguments of counsel and the report of the Probation
Department.
. . . .
Well, I don't know. My main dilemma is whether or not to follow the plea bargain and not allow the
matter to come back and be reheard and redone again, or not to follow the plea bargain and be assured
that the matter will come back and have to be redone again. That's not a very efficient way to run our
justice system.
107 Nev. 89, 94 (1991) Citti v. State
ment, the trial judge will be free to impose any sentence allowable under relevant statutes,
provided, however, that under the circumstances of this case, such sentence will not, in any
event, exceed the sentence imposed by Judge Torvinen. Upon remand, if the sentencing judge
pronounces a new sentence that exceeds the sentence imposed by Judge Torvinen, said
sentence will automatically be reduced to conform with Judge Torvinen's lesser sentence, and
judgment shall be entered accordingly. We therefore remand this case to a new sentencing
judge, and order the Washoe County District Attorney to specifically perform the plea bargain
agreement.
____________
107 Nev. 94, 94 (1991) Iverson v. State
JOHN WILLIAM IVERSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20346
March 7, 1991 807 P.2d 1372
Appeal from judgment of conviction of fourth degree arson. First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Defendant was convicted before the district court of fourth degree arson, and he appealed.
The supreme court, Rose, J., held that: (1) defendant was competent to enter plea of guilty,
and (2) defendant did not establish that he was denied equal protection because he was sent to
prison rather than to a secure mental facility as a wealthier person might have been.
Affirmed.
Springer, J., dissented.
Terri Steik Roeser, State Public Defender, and Janet Bessemer, Deputy Public Defender,
Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Noel Waters, District Attorney,
Carson City, for Respondent.
1. Criminal Law.
Evidence supported conclusion that defendant was competent to enter plea of guilty; although defendant who suffered from
paranoid schizophrenia indicated that he was taking Stelazine, Propranolol, Lithium and a heart pill, record did not reveal that
defendant's appreciation of events was diminished because of the medication.
2. Constitutional Law; Mental Health.
Indigent defendant's constitutional right to equal protection was not violated when district court sentenced him to prison rather
than to a psychiatric treatment facility because no such public institution was available, in absence of showing that
psychiatric facility at the Nevada State Prison is inadequate or that the difference between prison facility
and other facilities to which defendant could have been admitted if able to pay were substantially different.
available, in absence of showing that psychiatric facility at the Nevada State Prison is inadequate or that the difference between prison
facility and other facilities to which defendant could have been admitted if able to pay were substantially different. U.S.C.A.Const.
amend. 14.
OPINION
The appellant, John William Iverson (Iverson), contends that he was denied equal
protection of the law in violation of the United States Constitution because he was sent to
prison rather than to a secure mental health facility as a wealthier person may have been. We
conclude that no factual basis has been made to show that the psychiatric facility at the
Nevada State Prison is inadequate or that the difference between the Nevada facility and other
facilities to which Iverson could have been admitted if able to pay were substantially
different. We further conclude that Iverson entered his guilty plea to fourth degree arson
freely and voluntarily, that he understood the nature of the charge against him and that he was
sane at the time he committed the offense.
FACTS
On March 16, 1988, John Iverson set fire to his parents' mobile home, which was totally
consumed in the fire. He admitted to four witnesses that he had burned the house by pouring
kerosene inside and lighting it with a match. He then went outside and pretended he did not
do it. During the arson investigation, Iverson informed the police that he poured kerosene all
over the house and set it afire because he saw the image of Satan and wanted to protect his
family.
At the scene of the fire, Iverson was acting strangely and his father informed the police
that Iverson had a long history of mental illness and had made frequent threats of violent acts.
Because of Iverson's evident mental disturbance and past history, he was admitted to the
Nevada Mental Health Institute for protective custody and observation. He remained there
until his arrest on felony arson charges on October 11, 1988, when he was then placed in
Lake's Crossing for the mentally disordered offender. Iverson conditionally waived his
preliminary hearing so that a competency hearing could be held in district court. Prior to this
hearing, Dr. Henson, a psychiatrist, conducted an in-depth review of Mr. Iverson's medical
history and interviewed him. Mr. Iverson had been treated in eight mental health institutions
and was diagnosed as a paranoid schizophrenic.
At the competency hearing, Dr. Henson unequivocally testified that Mr.
that Mr. Iverson knew the nature of the criminal charges and proceedings against him and
was not insane. The director of Lake's Crossing was also prepared to testify about Iverson's
competence and sanity, but Iverson's attorney objected because he was not a psychiatrist as
required by NRS 178.415. The competency hearing was continued to secure a second
psychiatric opinion. When filed with the court, the second psychiatric opinion concurred with
all of Dr. Henson's conclusions.
On May 15, 1989, an arraignment and change of plea hearing pursuant to negotiations was
held. At that time, Iverson acknowledged signing a plea bargain memorandum and stated that
he wanted to plead guilty to fourth degree arson. The court canvassed Mr. Iverson concerning
his constitutional rights and how he felt that day. The court then found that the guilty plea to
fourth degree arson was knowingly and intelligently entered and that Iverson had an
understanding of what was transpiring in spite of some mental problems that he had. The plea
bargain memorandum that Iverson signed stated the elements of fourth degree arson, the
possible punishment for this crime and a waiver of his constitutional rights. When the court
inquired, Iverson stated that he had poured gasoline inside the trailer and then left the heater
on. In addition to the admissions in the plea bargain memorandum, he admitted that the fire
was his fault.
It is obvious that Iverson and his attorney were hopeful that the sentence imposed would
confine Iverson to a drug and alcohol abuse center or an appropriate mental health facility
rather than prison. However, the district court was very careful to ascertain that no such
promise of placement in a drug abuse center or other mental health facility was made to him.
THE COURT: Anybody else told you anything about this case, what's going to happen
if you plead guilty?
THE DEFENDANT: If I got plea bargain, I might be able, instead of going to prison, I
might be able to go to the drug rehab or the drug and alcohol abuse center, sir.
THE COURT: That's a possibility. But you realize that I can sentence you to prison if I
want. You do understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Has anybody said you're not going to getyou're going to
automatically get probation or going to go, get any kind of special treatment?
THE DEFENDANT: No.
THE COURT: You understand all that?
THE DEFENDANT: Yes, sir.
Iverson was returned to Lake's Crossing until the sentencing hearing. The parole and
probation report recommended that Iverson receive a five year prison sentence, primarily
because there was no other viable alternative.
there was no other viable alternative. Iverson's attorney requested a continuance so that the
alternative placement of Iverson in a psychiatric or mental health facility could be explored.
The court observed that Lake's Crossing in Reno is for the criminally insane and to assist a
person to become competent to stand trial. However, once the person is found guilty or pleads
guilty to a felony offense, he is no longer eligible for residence or treatment at Lake's
Crossing. The court succinctly stated the problem:
THE COURT: Well, I tell you very frankly I'm not inclined to put this gentleman in
prison. But by the same token, it's the biggest problem we have in the State of Nevada.
What do we do with people who have significant mental illnesses who need their
freedom restricted, but we don't have any funds for it, we don't have any facilities for it.
The district court continued the sentencing hearing to permit the defense time to locate an
alternate facility for Iverson and for a second evaluation to be made of him at Lake's
Crossing.
During the next two weeks, defense counsel was unable to find a public facility willing to
accept Iverson. A psychologist at the Washoe Tribe Health Clinic could not find a long-term
public treatment facility willing to accept Iverson and he recommended that Iverson be placed
in the halfway house program at the Nevada Mental Health Institute.
On July 24, 1989, the court conducted the final sentencing hearing. Based on the second
evaluation, the court again found Iverson able to assist counsel and competent to plead guilty.
The court reluctantly sentenced Iverson to five years in the Nevada State Prison because the
defense had been unable to find a treatment facility and because the court considered Iverson
too dangerous to be immediately released on probation. The district court clearly stated the
dilemma it faced in sentencing Iverson.
THE COURT: . . . I find you guilty of the fourth degree arson, Mr. Iverson. I tell you
that this is one of the most disturbing cases I've had because the State of Nevada has, in
my estimation, an obligation to provide some type of facility for a young, primarily
young men and occasionally young women in your situation, and we don't have. We
haven't even approached the idea of treatment.
The other side of the coin is, Mr. Iverson, . . . when you are not under medication,
you're a real danger to people because you just get off, so far off very quickly and you
end up ingesting substances. . . . But there's no place to treat that in Nevada.
. . . .
The only choice I have in Nevada, unfortunately, is incarceration to prevent that
danger, and it's a terrible choice.
I sentence you to five years in Nevada State Prison, . . . and I recommend . . . on the
sentence that the Nevada Department of Prisons consider a transfer to Atascadero or
other appropriate facility dealing with mentally disturbed offenders to get some type of
treatment.
Iverson has appealed to this court asserting that his constitutional right to equal protection
was violated when the district court sentenced him to prison rather than a psychiatric
treatment facility because no such public institution was available. No claim is made by
Iverson that he was not competent to enter a guilty plea to fourth degree arson, that the court
acted improperly in accepting the plea, or that he was legally insane at the time he set the fire.
LEGAL DISCUSSION
I. Iverson's sanity and competence.
All of the evidence in the record unequivocally establishes that although Iverson had
serious mental problems, he was not insane at the time he set fire to the trailer. Iverson does
not claim he was insane at the time of the incident. We address this issue only because the
dissent suggests that this case should be remanded and disposed of as a civil rather than a
criminal matter. Given the uncontradicted evidence that Iverson is sane, it would be improper
to reverse because he is insane, let alone direct that the matter be disposed of civilly.
[Headnote 1]
The dissent also claims that Iverson was synthetically lucid at the time he pleaded guilty
and therefore presumably not competent to enter his plea of guilty. The record again belies
this assertion. The district court asked Iverson if he was taking any medication when he
entered his guilty plea and he indicated that he was taking Stelazine, Propranolol, Lithium
and a heart pill. Further inquiry was made about the effects of these drugs on Iverson and
he stated that they reduced his mental and emotional problems, and made him relax. The
record contains ample evidence that Iverson's medication prevented the more severe effects of
paranoid schizophrenia and that Iverson suffered mental problems when he did not take his
prescribed medication. When the record fails to reveal that a defendant's appreciation of the
events of trial was diminished because of medication, the result below will not be disturbed.
Lizotte v. State, 102 Nev. 238, 720 P.2d 1212 (1986). All of the evidence in the record
indicates that Iverson's medication helped him and that he freely, voluntarily and
knowingly entered his plea of guilty.
Iverson's medication helped him and that he freely, voluntarily and knowingly entered his
plea of guilty.
The dissent also claims that Iverson did not understand the nature of the charges against
him. Once again, the record does not support this claim. The plea bargain memorandum
which Iverson signed specifically recited the elements of fourth degree arson. Further, the
district court read the crime charged in the Information to him and inquired whether Iverson
understood the charge. He said he did.
We have held that the trial judge should determine that a defendant understands the nature
of the charge against him either by eliciting his statement that he understands the charge or by
his admission of the facts constituting the offense. Bryant v. State, 102 Nev. 268, 721 P.2d
364 (1986). A determination of whether the defendant understood the nature of the charge
will be made by using the totality of the circumstances approach, whether the facts are
contained in the plea canvas or at other stages of the proceedings. Id. at 270, 721 P.2d at 366.
Here, Iverson demonstrated his understanding of the charge against him in the plea bargain
memorandum and in his statements to the court. While a more detailed statement in court of
the facts of the crime is preferable, Iverson's statement when he pleaded guilty, coupled with
his acknowledgement of the elements of the crime in the plea bargain memorandum, satisfy
our requirement set forth in Bryant.
Iverson and his attorney knew that although he had a history of serious mental illness, all
the psychiatrists and psychologists would testify that he was both competent to stand trial and
sane. Given every prospect that Iverson would be found guilty of first degree arson at trial,
the negotiated plea bargain to fourth degree arson was apparently the best Iverson could
accomplish. The hope was that he would be sentenced to a mental health facility. Iverson
acknowledged that while this was his preference, no promise of such sentence was made to
him and he was aware that he may well be sent to prison. We find no fault with the tactical
decision made by Iverson and his attorney in choosing this course of action. Often the best
interests of a defendant lie in a negotiated disposition of the charge against him or her.
II. Iverson's violation of equal protection claim.
[Headnote 2]
Iverson contends that if he had been insured or wealthy the court would have allowed him
to enter a private secure facility at his own expense in lieu of prison. He contends that this
situation caused him to be imprisoned, as well as excluded from the treatment alternative,
solely on the basis of his indigence, in violation of the equal protection clause of the
United States Constitution.
treatment alternative, solely on the basis of his indigence, in violation of the equal protection
clause of the United States Constitution. In support, Iverson cites to a line of cases prohibiting
incarceration solely due to a defendant's inability to pay a fine or a fee. See, e.g., Beardon v.
Georgia, 461 U.S. 660 (1983); Elam v. Municipal Court of Oklahoma City, 757 P.2d 1338
(Okla.Crim.App. 1988). We find these cases neither on point nor persuasive.
Based on the record, we agree that the district court may well have permitted Iverson to
enter a private facility with adequate security if Iverson had been able to afford such
treatment. The iniquities that arise between the affluent and those of more modest means will
always be with us. However, this does not mean that a constitutional deprivation of rights has
occurred.
We share the district court's concern over Mr. Iverson's plight and over the lack of
facilities in this state for the guilty but mentally ill criminal offender who is a security risk. It
is ironic that the institute for the criminally mentally ill in Nevada will accept an accused and
strive to make him or her competent to stand trial, yet it will reject the same person once he is
adjudged guilty of a felony.
Nevertheless, we cannot conclude that Iverson's prison sentence violates the equal
protection clause of either the United States or Nevada Constitution. The record contains no
showing of what the psychiatric treatment facilities are at the Nevada State Prison, let alone
that they are inadequate relative to other facilities where Iverson desired to be placed; or even
that the prison facility where he is now confined is so deficient as to raise a colorable issue
that Iverson has been denied equal protection of the law.
CONCLUSION
Iverson was competent to enter a plea of guilty, understood the charges against him, and
knowingly entered his plea of guilty to fourth degree arson. Viewing the totality of the
circumstances as reflected in the record, including the plea bargain memorandum and
Iverson's various statements admitting guilt, the court properly accepted Iverson's guilty plea.
Every expert opinion was that Iverson is legally sane. Iverson makes no claims otherwise in
his appeal.
There has been no showing that Iverson was deprived of equal protection of the law.
Nowhere in the record is it established that the psychiatric facilities at the Nevada State
Prison are in any way inadequate to treat Iverson. Additionally, no evidence was presented
about other private facilities that might be available to Iverson had he had the funds to pay
to enter them or how they would be better than those provided by the State of Nevada.
Iverson had he had the funds to pay to enter them or how they would be better than those
provided by the State of Nevada. Therefore, there has not been a threshold showing made
upon which to base a claim of failure to provide Iverson with equal protection of law.
Accordingly, the judgment and sentence against Iverson is affirmed.
Mowbray, C. J., Steffen and Young, JJ., concur.
Springer, J., dissenting:
Iverson has been sent to prison to be punished (NRS 205.025) for committing the crime
of arson by burning his parents' home; yet, everyone knows
1
that Iverson was not guilty of
willful (NRS 205.025) or criminal burning of his parents' home.
After his arrest Iverson told police that the fire had been set by a certain robot that had
taken charge of hima robot that had been commanded to burn his parents' home in order to
protect them from some imaginary harm. Iverson, described in the record as being
profoundly mentally ill, has been hospitalized for his mental disorders at least nine times,
and is mentally retarded and schizophrenic. There is little or no possibility that either Iverson
or the robot burned his parents' home with any malicious or criminal intent.
After his arrest Iverson was placed on what is described in the record as a very high dose
of psychotropic medicine. Iverson was drugged into a state of temporary and synthetic
sanity, and was brought to court in that state so that he could plead guilty. At his plea hearing,
Iverson had forgotten entirely about the robot and Satan and all that and at his plea hearing
apparently believed that he had left the heater on and that it must have, fumes or
something, must have exploded on the heater.
__________

1
The trial judge was obviously painfully aware of the injustice in this case. He asked the rhetorical question:
What do we do with people who have significant mental illnesses who need their freedom restricted, but . . . we
don't have any facilities for it[?]. The judge's answer to his own question was this:
The only alternative I can see is some kind of residential program followed by some kind of a handle to
make sure that Mr. Iverson does what is in his best interests, that he maintains his medications, that he
maintains things so if, so if he's beginning to slip a little bit, we can pick him up, hold him under my order
until we can get him evaluated again. That's what I want to do.
This is what the judge wanted to do but not what he did. Under circumstances he believed that [t]he only
choice I have in Nevada, unfortunately, is incarceration to prevent that danger, and it is a terrible choice.
The court questioned Iverson's attorney at the plea hearing. She advised the court that
although there was a time when she had been under the impression that he did not know,
have a sense of what was happening, at the time of the plea hearing (although she had talked
to him momentarily), she noticed a significant difference in his condition, namely that
he appears to be more comfortable, he's more lucid than he was previously. Asked by the
court if he understands the process today, Iverson's attorney answered, I think he does.
The plea hearing then continued on.
Assuming that Iverson was truly lucid (something a reading of this record makes me
doubt very much), no questions were asked by the court or Iverson's counsel about why
Iverson now thought that the fire was caused by a heater mishap rather than by a robot. The
court advised Iverson:
Now, when you enter a plea of guilty to me, Mr. Iverson, you admit that on about the
date in question you were involved in a fourth degree arson,[
2
] which is the burning of
a, of a structure.
He was not asked about whether he willfully and maliciously attempt[ed] to set fire to his
parents' home. It is certainly not fourth degree arson merely to leave a heater on so that, as
Iverson put it to the court, fumes or something must have exploded on the heater.
I know it was not raised by the attorney who represented Iverson at the hearing, but it
should be obvious to anyone who reads the transcript of this hearing that the synthetically
lucid Iverson who was pleading guilty in this case had no recollection of the robot that he
had previously blamed for setting the mobile home afire.3 The lower court's handling of
Iverson's plea in this manner clearly ran afoul of the United States Supreme Court's
holding in Henderson v. Morgan, 426 U.S. 637 {1976). In Henderson, a mentally retarded
defendant pled guilty to second degree murder, but was not informed by the trial court
that intent to cause death was an essential part of his crime. Id. at 646.
__________

2
NRS 205.025 provides as follows:
205.025 Fourth degree.
1. Any person who willfully and maliciously attempts to set fire to or attempts to burn or to aid,
counsel or procure the burning of any of the buildings or property mentioned in NRS 205.010, 205.015,
and 205.020, or who commits any act preliminary thereto or in furtherance thereof, shall be guilty of
arson in the fourth degree and be sentenced to imprisonment for not less than 1 year nor more than
one-half of the longest term prescribed upon a conviction for the commission of the offense attempted,
and may be further punished by a fine of not more than $5,000.
2. In any prosecution under this section the placing or distributing of any inflammable, explosive or
combustible material or substance, or any device in any building or property mentioned in NRS 205.010,
205.015, and 205.020, in an arrangement or preparation eventually to set fire to or burn such building or
property, or to procure the setting fire to or burning of such building or property, shall be prima facie
evidence of a willful attempt to burn or set on fire such property.
home afire.
3
The lower court's handling of Iverson's plea in this manner clearly ran afoul of
the United States Supreme Court's holding in Henderson v. Morgan, 426 U.S. 637 (1976). In
Henderson, a mentally retarded defendant pled guilty to second degree murder, but was not
informed by the trial court that intent to cause death was an essential part of his crime. Id. at
646. In addition, defendant made no factual statement at the plea hearing that would imply
that defendant had such intent. Id. The Court reversed this conviction, holding that because
defendant did not receive real notice of the true nature of the charge against him, the plea
was involuntary and the conviction was entered in violation of due process of law. Id. at 645;
see also Dubose v. State, 100 Nev. 339, 340, 682 P.2d 195, 196 (1984); NRS 174.035(1).
These authorities clearly require reversal in this case. The trial court never explained to
Iverson the mental elements of fourth degree arson: willful and malicious. In addition,
Iverson made no factual statement at the plea hearing that would have implied that the
burning was willfulin fact, the statements made by Iverson at this hearing seem to indicate
that the burning was accidental. Thus, Iverson never received real notice of the true nature
of the charge against him, and his conviction was in violation of due process.
Whether the fire in question was the result of the accident described by Iverson at the time
he pleaded guilty to fourth degree arson, or the result of the diabolical intervention of a robot,
it is obvious that the record in this case does not support a felony arson conviction nor five
years' punishment in prison. I would set aside the arson conviction and return this case to the
district court for a civil rather than a criminal disposition of this profoundly mentally ill man.
This conviction cannot stand.
__________

3
Where issues of constitutional dimension are presented, this court has often stated that, as long as an
adequate record for review exists, these issues may be addressed on their merits. See, e.g., Koenig v. State, 99
Nev. 780, 787 n.5, 672 P.2d 37, 42 n.5 (1983).
____________
107 Nev. 104, 104 (1991) D'Angelo v. Gardner
DON D'ANGELO, Appellant, v. SUE GARDNER, GEMCO, a Division of LUCKY
STORES, INC., and LUCKY STORES, INC., Respondents.
No. 20452
April 2, 1991 807 P.2d 1391
(Replaces opinion issued March 7, 1991)
Appeal from Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Eva Garcia, Las Vegas, for Appellant.
Smith & Kotchka, Las Vegas, for Respondents.
Lionel Sawyer & Collins, and Brian McKay, Las Vegas; Laxalt & Nomura; McDonald,
Carano, Wilson, McCune, Bergin, Frankovich & Hicks; Raggio, Wooster & Lindell; Vargas
& Barlett; Woodburn, Wedge & Jeppson, Reno, for Amicus.
ORDER GRANTING REHEARING
On March 7, 1991, this court issued an opinion in the above-entitled matter, reversing and
remanding the judgment of the district court. D'Angelo v. Gardner, (Adv. Opn. No. 16).
Respondents have now petitioned this court for rehearing. Additionally, noting the public
importance of the issues presented in this case, numerous Nevada employers and associations
have moved this court for leave to participate on rehearing as amici curiae.
Having carefully reviewed the petition and motions pending in this matter, we have
determined that rehearing is warranted and that the participation of amici curiae will assist in
this court's deliberations. Accordingly, we grant rehearing. The clerk of this court shall
schedule this matter for reargument in June, 1991. Oral argument shall be limited to thirty
(30) minutes.
Further, we grant the pending motions to participate on rehearing as amici curiae.
Respondents and the amici shall have twenty (20) days from the date of this order to file
briefs on rehearing. The amici, however, shall not be permitted to participate at the oral
argument. Appellant shall have thirty (30) days thereafter within which to file a response.
Finally, although we express no opinion as to the merits of arguments to be presented on
rehearing, we deem it necessary to withdraw the opinion previously issued in this matter.
issued in this matter. Accordingly, we hereby direct the clerk of this court to publish this
order in place of the withdrawn opinion.
It is so ORDERED.
____________
107 Nev. 105, 105 (1991) Welburn v. District Court
ROBERT A. WELBURN, and SHAULA M. WELBURN, Petitioners, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
County of Clark, and THE HONORABLE J. CHARLES THOMPSON, District
Judge, Respondents, and STEPHEN K. BOHMAN and DAWN BOHMAN, Real
Parties in Interest.
No. 21246
March 7, 1991 806 P.2d 1045
Original petition for a writ of mandamus. Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Secured creditor brought action for deficiency judgement. The district court quashed
service of process, and creditor petitioned for writ of mandamus. The supreme court held that
Nevada court had personal jurisdiction over California debtor who had pledged Nevada
property as security for loan from California creditor.
Writ granted.
K. Michael Leavitt and David J. Rivers, Las Vegas, for Petitioners.
Frankie Sue Del Papa, Attorney General, Carson City, Donald Haight, Deputy, Las
Vegas; Rex Bell, District Attorney, Clark County, for Respondents.
David, Wright & Jones and Edwin Carney, Los Angeles, California; Jimmerson & Davis,
Las Vegas, for Real Parties in Interest.
Courts.
Nevada court had personal jurisdiction over California debtor who had pledged Nevada property as security for loan from
California creditor, in creditor's action for deficiency judgment following sale of property; debtor had invoked benefits and protections
of Nevada law by using Nevada real property, through Nevada deed of trust, as security for loan and, although California was available
as alternative forum for action on note, Nevada's exercise of jurisdiction was reasonable. NRS 14.065, subd. 2(c).
OPINION
Per Curiam:
1

This original petition for a writ of mandamus challenges an order of the district court
quashing service of process on the real parties in interest.
On June 8, 1988, Stephen K. Bohman and Dawn Bohman, the real parties in interest,
executed a note for $139,000 in favor of petitioners Robert A. Welburn and Shaula M.
Welburn. The note was secured by a deed of trust with Nevada Title Company, a Nevada
corporation, and covered certain real property located in Las Vegas, Nevada. It is
uncontroverted that both parties resided in California at all relevant times and still reside
there, and that the documents were signed in California. The Bohmans defaulted on the note.
On October 26, 1989, the property was sold pursuant to the deed of trust for $97,000. On
November 15, 1989, petitioners filed a complaint in the district court seeking a deficiency
judgement in the amount of $64,667.26 plus interest, attorney's fees and general damages.
The Bohmans moved the district court to quash service of process on the basis that the court
lacked personal jurisdiction over them after the Nevada property was sold. Petitioners
opposed the motion. On April 30, 1990, the district court entered an order granting the
motion and quashing service of process. This petition followed.
Nevada's long-arm statute provides that a person submits himself . . . to the jurisdiction of
the courts of this state as to any cause of action which arises from . . . [o]wning, using or
possessing any real property situated in this state. NRS 14.065(2)(c). The long-arm statute is
to be interpreted broadly to reach the outer limits of federal constitutional due process. See
Judas Priest v. District Court, 104 Nev. 424, 425, 760 P.2d 137, 138 (1988); Davis v. State 97
Nev. 332, 338, 629 P.2d 1209, 1213 (1981), cert. denied 454 U.S. 1049 (1981); Certain-Teed
Prods. v. District Court, 87 Nev. 18, 23, 479 P.2d 781, 784 (1971). The note which the
Bohmans executed in petitioners' favor was secured by Nevada real property, through a
Nevada deed of trust. Therefore, petitioners were entitled, following the trustee's sale, to
apply to the district court for a deficiency judgment. See NRS 40.455(1). Thus, the action for
a deficiency judgment arose from the Bohman's use of the Nevada property, through a
Nevada deed of trust, to secure the note. Consequently, the long-arm statute provides for
personal jurisdiction in the Nevada courts over the Bohmans in the action for a deficiency
judgment.
__________

1
This court previously granted this petition in an unpublished order. Pursuant to a request, we have
determined that our decision should be issued in a published opinion. Accordingly, we issue this opinion in place
of our order filed December 27, 1990.
the long-arm statute provides for personal jurisdiction in the Nevada courts over the Bohmans
in the action for a deficiency judgment. See NRS 14.065(2)(c).
The assertion of jurisdiction over out of state defendants under the Nevada statute is
proper if it does not contravene the due process clause of the United States Constitution. See
Judas Priest v. District Court, 104 Nev. 424, 425, 760 P.2d 137, 138 (1988) (citing Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 774, (1984)). Jurisdiction over the Bohmans is proper
under the federal constitution because: (1) the Bohmans invoked the benefits and protection
of Nevada laws by using Nevada real property, through a Nevada deed of trust, as security for
the note; (2) the deficiency action resulted therefrom; and (3) jurisdiction over the Bohmans
is reasonable. See Paccar Intern., Inc., v. Commercial Bank of Kuwait, 757 F.2d 1058, 1062
(9th Cir. 1985) (quoting Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d
1280, 1288 (9th Cir. 1977); see also Dwyer v. District Court, Sixth Judicial District, 532 P.2d
725, 727 (Colo. 1975) (jurisdiction proper where defendant's contact with the forum state,
although quantitatively minimal, was of substantial import and relevance to the subject matter
of the lawsuit).
Jurisdiction over the Bohmans is reasonable because: (1) the Bohmans' use of Nevada real
property under a Nevada deed of trust to secure a loan constitutes purposeful interjection into
Nevada; (2) coming to Nevada from California is not an excessive burden; (3) the deficiency
action does not significantly conflict with California's sovereignty; (4) Nevada has a strong
interest in protecting the efficacy of the deficiency statute with respect to out of state owners
of Nevada real property; (5) the most efficient judicial resolution of the dispute and (6) the
most convenient and effective relief for petitioners appears to be a Nevada deficiency
judgment. See FDIC v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1442 (9th Cir. 1987).
Although California is available as an alternative forum for an action on the note, on balance
the exercise of jurisdiction is reasonable.
Furthermore, it would be unreasonable and inequitable to grant the Bohmans the
protection of Nevada's one action rule, which required petitioners to first seek satisfaction of
the debt by the trustee's sale, see NRS 40.430(1), but to deny petitioners the right to apply for
a deficiency judgment in Nevada following the trustee's sale, See generally Component
Systems v. District Court, 101 Nev. 76, 82, 692 P.2d 1296, 1301 (1985) (quoting Keever v.
Nicholas Beers Co., 96 Nev. 509, 512, 611 P.2d 1079, 1082 (1980) (NRS Chapter 40
provides a comprehensive scheme of creditor and debtor protection with respect to the
foreclosure and sale of real property subject to security interests").
foreclosure and sale of real property subject to security interests). The Bohmans' argument
regarding which state's law should apply in the action below is not dispositive of the issue of
jurisdiction.
In light of the above, we conclude that the district court abused its discretion by granting
the motion to quash service of process. Therefore, we grant this petition for writ of
mandamus. The clerk of this court shall forthwith issue a writ of mandamus compelling the
district court to vacate its order granting the Bohmans' motion to quash service of process and
to exercise personal jurisdiction over the Bohmans.
____________
107 Nev. 108, 108 (1991) Northern Nev. Ass'n Injured Workers v. SIIS
NORTHERN NEVADA ASSOCIATION OF INJURED WORKERS, RONALD MOORE,
TONYA MOORE, ELMER SCOTT, DAVID COX, JUAN HERNANDEZ, MARK
PELTIER, MARGARET A. VIERRA and LAWRENCE ADAMSON, Appellants, v.
NEVADA STATE INDUSTRIAL INSURANCE SYSTEM, LAURY M. LEWIS,
MATHEW DORANGRICCHIA, MARYANN ELORREAGA and DEBORAH
WEAVER, Respondents.
No. 20704
March 7, 1991 807 P.2d 728
Appeal from district court order granting NRCP 12(b)(1) and (5) motion to dismiss.
Second Judicial District Court, Washoe County; William N. Forman, Judge.
Injured worker and others brought action against State Industrial Insurance System and
System's employees for negligence and bad faith in claims processing and for deprivation of
civil rights. The district court dismissed case. Plaintiffs appealed. The supreme court held
that: (1) System is state agency within meaning of statute immunizing state agency and its
employees from liability for discretionary function; (2) time periods within which System was
required to accept or deny responsibility for workers' compensation were not discretionary,
and, thus, System was not immune from liability for failure to comply with time provisions;
and (3) system and its officials and employees could not be held liable in official capacity
under 42 U.S.C. 1983 or civil rights conspiracy statute.
Victor R. Cook, Reno, for Appellants.
R. Scott Young, General Counsel, State Industrial Insurance System, Carson City, for
Respondents.
1. Workers' Compensation.
Industrial Insurance Act did not insulate State Industrial Insurance System from liability arising from common-law negligence
claim. NRS 616.010 et seq., 616.560.
2. Statutes.
Legislature was presumed to approve of supreme court's prior interpretation of statutory language that remained unchanged when
legislature recently amended workers' compensation statute. NRS 616.560.
3. States.
State Industrial Insurance System is state agency within meaning of statute immunizing state agency and its employees from
liability for discretionary function. NRS 41.032.
4. States.
The following acts of State Industrial Insurance System and its employees are discretionary functions for which System, its
officials, and its employees are immune from liability: determinations whether worker is covered by statute, whether there was accident
arising out of and in course of employment, and whether disability is permanent and total, permanent and partial, temporary and total,
or temporary and partial. NRS 41.032, 616.045, 616.055 to 616.088, 616.105, 616.110, 616.114, 616.115, 616.260, 616.270, 616.505,
616.510, 616.570-616.6285.
5. States.
Time periods within which State Industrial Insurance System was required to accept or deny responsibility for workers'
compensation were not discretionary, and, thus, System was not immune from liability for failure to comply with time provisions. NRS
41.032, 616.500, subd. 7.
State Industrial Insurance System had operational duty to promptly reopen worker's file when System failed to timely appeal
hearing officer's determination. NRS 41.032, 616.500, subd. 7.
7. Civil Rights; Conspiracy.
State Industrial Insurance System and its officials and employees acting in official capacity were not persons under 1983 and
could not be held liable for damages under 1983 or civil rights conspiracy statute. 42 U.S.C.A. 1983, 1985; NRS 616.010 et seq.
8. Civil Rights; Conspiracy.
Officials and employees of State Industrial Insurance System could be held liable in individual capacity under 1983 and for civil
rights conspiracy. 42 U.S.C.A. 1983 1985; NRS 616.010 et seq.
9. Pleading.
Style of caption of complaint should not be determinative on issue whether state official has been sued in official or individual
capacity.
10. Civil Rights; Injunction.
Under 1983 and civil rights conspiracy statute, injunctive relief was available against state officials acting in their official
capacities. 42 U.S.C.A. 1983, 1985; NRS 616.010 et seq.
OPINION
Per Curiam:
Appellants sued respondents State Industrial Insurance System (SIIS) and certain
individual SIIS employees (employees) for negligence and bad faith in the processing of
appellants' claims, and for deprivation of their civil rights. The district court granted
respondents' NRCP 12(b)(1) and (5) motion to dismiss for lack of subject matter jurisdiction
and a failure to state a claim upon which relief can be granted.
The district court's order of dismissal was premised on four conclusions: (1) SIIS's
immunity as a state agency; (2) the discretionary nature of SIIS's conduct; (3) the
inapplicability of 42 U.S.C. 1983 and 1985 to respondents; and (4) the insufficiency of
factual allegations in appellants' amended complaint to support its contentions.
For the reasons discussed below, we hold that it was error to dismiss appellants' amended
complaint.
Facts and Procedural Background
Accepting, as we must, the truth of appellants' factual allegations, Haertal v. Sonshine
Carpet Co., 102 Nev. 614, 730 P.2d 428 (1986), appellant Ronald Moore (Moore) was
injured by a dynamite explosion while working for Marshall Earth Resources, Inc. He
suffered a fractured skull, injuries to his neck and back, and severe mental disorientation.
1

Moore received benefits under the Nevada Industrial Insurance Act and in due course SIIS
advised Moore by letter dated July 6, 1988 that it would close his file. On September 1, 1988,
Moore's attorney wrote a letter to SIIS advising the System that Moore's condition had
worsened. The attorney asked SIIS to reopen Moore's file; SIIS refused.
On December 27, 1988, a hearing officer reversed SIIS and remanded the file for
reopening. SIIS neither appealed the hearing officer's determination nor reopened the file.
On March 13, 1989, M.H. Duxbury, M.D., wrote a letter to SIIS alerting the system that
Moore required immediate care resulting from a work-related accident. Dr. Duxbury stated
that the possibility of Moore having a stroke or heart attack was great. On the same day,
appellants filed a complaint in district court alleging that respondents negligently and
maliciously processed worker's compensation claims, and violated their civil rights secured
by 42 U.S.C. 19S3 and 19S5.2 Shortly thereafter, appellants filed, and the district court
granted, an application for a writ of mandamus.
__________

1
In disposing of this appeal we have found it unnecessary to address facts pertaining to the remaining
appellants.
secured by 42 U.S.C. 1983 and 1985.
2
Shortly thereafter, appellants filed, and the district
court granted, an application for a writ of mandamus. The writ ordered SIIS to comply with
the hearing officer's determination of December 27, 1988.
Appellants filed their amended complaint on April 4, 1989, which named additional
plaintiffs and defendants, and alleged further instances of breach of duty by the defendants. In
response, respondents filed a 12(b) motion to dismiss the amended complaint. The grounds
for the motion were that the district court lacked subject matter jurisdiction, appellants'
complaint failed to state a claim upon which relief could be granted, and the prerequisites for
a class action had not been met.
3
Appellants opposed the motion and in the alternative
sought leave to amend.
The district court granted respondents' motion to dismiss on December 5, 1989, finding
that (1) SIIS was a state agency; (2) the conduct complained of was discretionary within the
scope of NRS 41.032; (3) the amended complaint failed to state a claim upon which relief
could be granted under the federal civil rights statutes;
4
and (4) the amended complaint
failed to disclose factual allegations sufficient to support its conclusions. This appeal
followed.
Discussion
We initially consider whether there is a cause of action in Nevada against SIIS and its
employees for negligent or malicious claims processing.
[Headnote 1]
In Rush v. Nevada Indus. Comm'n, 94 Nev. 403, 580 P.2d 952 (1978), a claimant
attempted to sue the Nevada Industrial Commission (NIC) for money and punitive damages.
5
The claimant argued NIC's delay in approving specialized treatment proximately caused
the eventual loss of his eye. Id. at 405, 5S0 P.2d at 953.
__________

2
Appellants prayed for money damages, injunctive relief, attorney's fees and costs. Moreover, the complaint
alleges violations of 42 U.S.C. 1985(2). Appellants concede they inadvertently cited to subsection (2) when
they intended and made out a cause of action under subsection (3).

3
We do not address this issue and express no opinion concerning it because the district court did not rule on
the issue in its order of dismissal.

4
Prior to the district court's ruling on the motion to dismiss, appellants responsibly directed the court's
attention to the United States Supreme Court decision in Will v. Michigan Department of State Police, 491 U.S.
58, 109 S.Ct. 2304 (1989). The Will decision conclusively holds that neither states nor state officials acting in
their official capacities may be sued under 42 U.S.C. 1983 and 1985 in state courts. Id. 109 S.Ct. at 2312.

5
Appellants in the present case also prayed for punitive damages. As we held in Rush, punitive damages are
unavailable in actions of this nature. Rush, 94 Nev. at 407, 580 P.2d at 954, construing NRS 41.035(1) ([a]n
award may not include any amount as exemplary or punitive damages).
argued NIC's delay in approving specialized treatment proximately caused the eventual loss
of his eye. Id. at 405, 580 P.2d at 953. We held that claimant could sue NIC because the
third party referred to in NRS 616.560 is one other than the employer and a co-employee, thus
making NIC a permissive defendant. Id. at 406, 580 P.2d at 953.
[Headnote 2]
Despite respondents' contentions to the contrary, Rush is still good law. The legislature
presumably knew the law when it most recently amended the workers' compensation statute.
See City of Boulder v. General Sales Drivers, 101 Nev. 117, 694 P.2d 498 (1985). The
statutory language considered by this court in Rush has remained unchanged and thus it is
presumed that the legislature approves of our interpretation of the provision. Nevada Indus.
Comm'n v. Strange, 84 Nev. 153, 158, 437 P.2d 873, 876 (1968). Respondents are therefore
not insulated by the Nevada Industrial Insurance Act from liability arising from a common
law negligence claim. Rush, 94 Nev. at 406, 580 P.2d at 953.
[Headnote 3]
We must next decide whether respondents are immune from liability for the misconduct
alleged in appellants' complaint. In addressing this issue, it is necessary to consider the
language of the relevant statute, NRS 41.032.
6
Under the terms of the statute, respondents
may successfully invoke immunity if SIIS is a state agency and the acts described in the
complaint are of a discretionary nature.
SIIS is clearly a state agency for the following reasons: (1) it is subject to the approval and
control of the Governor, the legislature, and other agencies of the government;
7
(2) it is
treated as the State or a state agency throughout the Nevada Revised Statutes;S and {3) it
possesses certain powers of a sovereign authority.9 Therefore, the discretionary acts of
SIIS and its employees are not actionable.
__________

6
NRS 41.032 provides:
Except as provided in NRS 278.0233 no action may be brought under NRS 41.031 [waiver of immunity]
or against an immune contractor or an officer or employee of the state or any of its agencies or political
subdivisions which is:
1. Based upon an act or omission of an officer, employee or immune contractor, exercising due care,
in the execution of a statute or regulation, whether or not such statute or regulation is valid, if the statute
or regulation has not been declared invalid by a court of competent jurisdiction; or
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of the state or any of its agencies or political subdivisions or of any officer,
employee or immune contractor of any of these, whether or not the discretion involved is abused.

7
NRS 353.210 (SIIS operates on money designated in the Nevada Constitution for the purpose of providing
compensation for industrial accidents,
State or a state agency throughout the Nevada Revised Statutes;
8
and (3) it possesses certain
powers of a sovereign authority.
9
Therefore, the discretionary acts of SIIS and its employees
are not actionable.
[Headnote 4]
In analyzing respondents' entitlement to immunity under the statute, it is necessary to
determine whether the acts alleged in appellants' amended complaint are properly categorized
as discretionary. SIIS and its employees do exercise discretion when processing worker's
compensation claims. When SIIS receives a claim it must determine whether: (1) the worker
is covered by the act;
10
(2) there was an accident arising out of and in the course of
employment;
11
and (3) claimants' disability is permanent and total, permanent and partial,
temporary and total, or temporary and partial.
12
These determinations all involve discretion,
and thus SIIS, its officials and employees are immune from liability for making such
determinations.
[Headnote 5]
The time provisions within which SIIS must either accept or deny responsibility, however,
are not discretionary. NRS 616.500(7) provides:
The insurer must either accept or deny responsibility for compensation under this
chapter or chapter 617 of NRS within 30 days after the notice provided for in this
section is received. If additional information is necessary to determine liability, the
insurer may extend
__________
occupational diseases, and administrative expenses related thereto); NRS 616.1701(2); NRS 616.180; NRS
616.380(3)(a), (b)(2), (c) and (d) (3); NRS 616.440; NRS 616.460; NRS 616.497-616.499 (authorizations for
and limitations on SIIS investment activities).

8
NRS 218.610; NRS 233B.031, NRS 286.070(2); NRS 616.1725(2); NRS 616.1805 (1).

9
See NRS 616.1725(9), NRS 616.192(3), NRS 616.252(3), NRS 616.380(1)(b), NRS 616.383(3). The
foregoing statutes authorize SIIS to adopt regulations that have the force of law. NRS 233B.040(1).

10
See NRS 616.045 (compensation defined); NRS 616.505 (application for death benefits); NRS
616.055-616.088 (definitions of employees and those persons excluded from the act); NRS 616.105
(independent contractor defined); NRS 616.110 (injury and personal injury defined); NRS 616.114 (sole
proprietor defined); NRS 616.115 (subcontractor defined); NRS 616.260 (provisions dealing with out-of-state
workers); NRS 616.510 (persons conclusively presumed totally dependent on injured employee).

11
See NRS 616.270 (Nevada Industrial Insurance Act provides compensation for accidental personal
injuries arising out of and in the course of employment).

12
See NRS 616.570-616.6285 (level of disability and compensation benefits resulting from injury or death).
liability, the insurer may extend the period to 60 days upon notice to the claimant if the
administrator approves. If additional information is still necessary, the insurer may
grant a further extension if the administrator approves and the claimant gives his
written consent, but the total period may not be extended to more than 90 days.
Meeting the thirty, sixty and ninety-day deadliness is a mandatory duty imposed upon SIIS by
the legislature. Mandatory duties fall within the operational sphere of duties and involve little
or no discretion; NRS 41.032 immunity does not extend to such acts. Crucil v. Carson City,
95 Nev. 583, 600 P.2d 216 (1979).
Appellants allege that SIIS and its employees failed to timely process appellants' claims. If
appellants were harmed by respondents' failure to meet the deadlines set forth in NRS
616.500(7), they are entitled to pursue their causes of action against respondents under that
theory.
[Headnote 6]
Moreover, there was no aspect of discretion involved in refusing or failing to reopen
Moore's file. When SIIS failed to appeal the hearing officer's determination, it was left with
an operational duty to promptly reopen Moore's file. See SIIS v. Parlow-Hursh, 101 Nev. 122,
696 P.2d 462 (1985) (time periods set to appeal a hearing officer's determination are
jurisdictional and mandatory; failure to comply with the time limits cannot be excused).
Upon remand, the district court must differentiate between allegations of misconduct
based upon their discretionary or operational nature. Only purely discretionary acts are
cloaked with immunity. Crucil, 95 Nev. at 585, 600 P.2d 218.
[Headnotes 7-9]
To the extent appellants seek to recover money damages under 42 U.S.C. 1983 and
1985 from SIIS, the complaint fails to state an actionable claim. The United States Supreme
Court has held that neither states nor their officials acting in their official capacities are
persons under 42 U.S.C. 1983 and therefore neither may be sued in state courts under the
federal civil rights statutes. Will v. Michigan Department of State Police, 491 U.S. 58, 71,
109 S.Ct. 2304, 2311-12 (1989). The same is true for claims under 1985. Santiago v. NYS
Dept. of Correctional Services, 725 F.Supp. 780 (S.D.N.Y. 1989), Rode v. Dellarciprete, 617
F. Supp. 721 (D.C.Pa. 1985). Because SIIS is a state agency, appellants' cause of action has
failed to state a claim under the federal civil rights statutes against SIIS. The same must be
said for SIIS's officers and employees to the extent the cause of action seeks to impose
liability for actions properly attributable to their official capacities.
their official capacities. The amended complaint also sued SIIS officials and employees for
actions engaged in outside their official capacities. Indeed, allegations of conspiracy, civil
rights violations, interference with claimants' rights to seek medical and legal help are hardly
descriptive of acts that may be rationally included within the prerogatives of an employee's
official capacity. We agree with those courts that have concluded that Will does not prohibit
claims against officials acting in an individual capacity. See Al-Jundi v. Estate of Rockefeller,
885 F.2d 1060, 1065 n.2 (2nd Cir. 1989) (damages available under Will against state official
sued in individual capacity); Gutierrez-Rodriquez v. Cartagena, 882 F.2d 553, 567 n.10 (1st
Cir. 1989) (same ruling); Jones v. State of Rhode Island, 724 F.Supp. 25, 29 (D.R.I. 1989)
(same ruling); Cross v. Meisel, 720 F. Supp. 486, 488 n.3 (E.D.Pa. 1989) (same ruling);
Braggs v. Lane, 717 F.Supp. 609, 611 (N.D.Ill. 1989) ( 1983 action sustainable under Will
against official in individual capacity); Harrington v. Schossow, 457 N.W.2d 583, 586-87
(Iowa 1990) (same ruling). See also Nahmod, Civil Rights and Civil Liberties Litigation
6.20 (1986 and Supp. 1990).
13

For reasons previously discussed, we are not able to conclude on this record that appellants
failed to state a claim against the individual employees. Upon remand, the district court will
have to differentiate between allegations within and without the respondent employees'
official capacities in order to determine whether an action may be sustainable against them.
Appellants also sought injunctive relief. The Will court held that injunctive relief against
state officials acting within their official capacities is available under 42 U.S.C. 19S3.14
Therefore, appellants did state a cause of action for injunctive relief under the federal civil
rights statutes.
__________

13
The Will decision supplies a basis for some confusion or uncertainty in that it concludes at one point that a
suit against a state official in his or her official capacity is not a suit against the official but rather is a suit
against the official's office. Will, 109 S.Ct. at 2311. Later, the Court holds that neither a State nor its officials
acting in their official capacities are persons' under 1983. Id. at 2312. It would appear, inasmuch as the Will
Court did not countenance an interpretation of 1983 that would permit circumventing congressional intent by
a mere pleading device, id. at 2311, that the Court would look to the substance of the allegations of a pleading
to determine whether the actions complained of were of a nature properly attributable to conduct within the
scope of an official's capacities. Thus, the style of the caption of a complaint should not be determinative as to
whether a state official has been sued in his or her official or individual capacity. This interpretation of the
Court's ruling is consistent with the Court's opinion in Scheuer v. Rhodes, 416 U.S. 232 (1974). In reversing the
district court's dismissal of complaints alleging 1983 violations against state officials for the death of students
killed at Kent State University, the Court carefully scrutinized the language of the complaints and concluded that
the allegations contained therein described acts by the defendants that were either outside the scope of their
authority or engaged in in an arbitrary manner, grossly abusing the lawful powers of office. Id. at 235.
that injunctive relief against state officials acting within their official capacities is available
under 42 U.S.C. 1983.
14
Therefore, appellants did state a cause of action for injunctive
relief under the federal civil rights statutes.
The district court also dismissed the action below on the ground that the amended
complaint did not provide respondents with adequate notice of the nature of the claims and
relief sought against them. The amended complaint contains seventeen allegations of
conspiracy, civil rights violations, bias, negligence, and interference with appellants' pursuit
of medical and legal help.
We conclude from our review of the record that the amended complaint gives respondents
sufficient notice of the nature of the claims and relief sought. Moreover, if respondents are
truly perplexed by any aspect of appellants' amended complaint, they may obtain further
specificity by filing a motion for a more definite statement under NRCP 12(e) or simply deny
allegations of uncertain meaning under NRCP 8(b). See Mays v. District Court, 105 Nev. 60,
768 P.2d 877 (1989).
For the reasons stated above, the order of dismissal entered below was erroneously granted
with the exception of the dismissal favoring SIIS on the federal civil rights claims. We
therefore reverse and remand for further proceedings.
____________
107 Nev. 116, 116 (1991) Western States Minerals v. Jones
WESTERN STATES MINERALS CORP., A Utah Corporation, Appellant, v. ROBERT
C. JONES, and GAIL A. JONES, Husband and Wife, Respondents.
No. 19697
April 2, 1991 807 P.2d 1392
(Replaces opinion issued March 7, 1991)
Appeal from Fourth Judicial District Court, Elko County; Joseph O. McDaniel, Judge.
E. Pierre Gezelin, Reno, for Appellant.
Davenport & Perry and Janet J. Berry, Reno, for Respondents.
__________

14
In Will, the Court said of course a state official in his or her official capacity, when sued for injunctive
relief, would be a person under 1983 because official-capacity actions for prospective relief are not treated as
actions against the state.' Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2311 n. 10 (citations omitted).
107 Nev. 116, 117 (1991) Western States Minerals v. Jones
On March 7, 1991, this court issued an opinion in the above entitled matter, affirming the
judgment of the district court. Western States Minerals Corp. v. Jones, (Adv. Opn. No. 19).
Appellant has now petitioned this court for rehearing. Additionally, noting the public
importance of the issues presented in this case, numerous Nevada employers and associations
have moved this court for leave to participate on rehearing as amici curiae.
Having carefully reviewed the petition and motions pending in this matter, we have
determined that rehearing is warranted and that the participation of amici curiae will assist in
this court's deliberations. Accordingly, we grant rehearing. The clerk of this court shall
schedule the matter for reargument in June, 1991. Oral argument shall be limited to thirty
(30) minutes.
Further, we grant the pending motions to participate on rehearing as amici curiae.
Appellant and the amici shall have twenty (20) days from the date of this order to file briefs
on rehearing. The amici, however, shall not be permitted to participate at the oral argument.
Respondents shall have thirty (30) days thereafter within which to file a response. Finally,
although we express no opinion as to the merits of arguments to be presented on rehearing,
we deem it necessary to withdraw the opinion previously issued in this matter. Accordingly,
we hereby direct the clerk of this court to publish this order in place of the withdrawn
opinion.
It is so ORDERED.
____________
107 Nev. 117, 117 (1991) Herz v. Gabler-Herz
HOWARD W. HERZ, Appellant, v. MICHELLE J. GABLER-HERZ, Respondent.
No. 19146
March 28, 1991 808 P.2d 1
Appeal from a decree of divorce and from an order denying a motion to modify the decree.
Ninth Judicial District Court, Douglas County; Norman C. Robison, Judge.
In divorce proceeding, the district court awarded child support in amount of $1,000 per
month for each of two children of marriage, to be paid by husband. Appeal was taken. The
supreme court held that: (1) award of child support in excess of statutory amount can be
based on factors other than increased need, and (2) district court properly awarded child
support in excess of statutory amount.
Affirmed.
Petersen & Petersen, Reno, for Appellant.
Bryon L. Bilyeu, Reno; Norman Herring, Riverside, California, for Respondent.
1. Parent and Child.
Award of child support in excess of statutory amount can be based on factors other than increased need. NRS 125B.010 et seq.,
125B.070, 125B.080, subds. 4, 5, 8.
2. Divorce.
District court properly required husband to pay child support in excess of statutory amount; court found that there were vastly
different incomes and financial resources of husband and wife and that amount of time children would spend with each parent as result
of decree supported increased award. NRS 125B.080, subds. 5, 8.
3. Divorce.
Even if district court erred by denying husband's motion to modify judgement of divorce on ground that it lacked jurisdiction over
motion, error was harmless; husband challenged child support awards, and the awards were not an abuse of district court's discretion.
OPINION
Per Curiam:
This is an appeal from a decree of divorce and from an order denying a motion to modify
the decree.
Appellant contends that the district court abused its discretion in awarding child support in
the amount of $1,000.00 per month for each of the two children of the marriage. Specifically,
appellant contends that before a district court may depart from the statutory formulas for child
support provided in NRS 125B.070, the party advocating an award in excess of the statutory
amount must prove that the additional amount is necessary to meet the child's needs. We
disagree.
[Headnote 1]
At the time of the divorce decree, there was a presumption that the amount of child
support provided under NRS 125B.070 was sufficient to meet a child's needs. NRS
125B.080(4).
1
A party could rebut that presumption by presenting evidence that a child's
needs were not met by the statutory formula. Id. Contrary to appellant's contention, however,
there was and is nothing in the applicable statutes to preclude the district court from awarding
an additional amount of child support based on some factor other than increased need.
__________

1
The citations to NRS Chapter 125B refer to the statutes as they existed prior to the 1989 amendments.
[Headnote 2]
The district court specifically found that the amount awarded was fair and equitable in
light of the vastly different incomes and financial resources of the plaintiff and defendant,
and the amount of time the children will spend with each parent as a result of this decree.
See NRS 125B.080(5) (district court shall set forth findings of fact as to the basis for
deviating from the formula). We conclude that the district court did not abuse its discretion in
making the child support award in excess of the statutory amount based on these factors. We
note initially that the factors cited by the district court fall within those listed in NRS
125B.080(8) as factors that the district court should consider when adjusting the amount of
child support. We further note the extensive evidence of appellant's wealth supporting the
district court's findings, including appellant's income tax returns and property holdings.
[Headnote 3]
Appellant contends that the district court erred by denying his motion to modify the
judgement on the ground that it lacked jurisdiction over his motion. Assuming, without
deciding, that the district court erred in denying appellant's motion, such error was harmless.
See Babagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532 (1989) (fixed expenses of primary
custodian are not usually appreciably diminished by secondary custodian's sharing of burdens
of child care and maintenance).
Having concluded that appellant's contentions lack merit, we affirm the decree of divorce
and the order of the district court denying appellant's motion to modify the decree.
_____________
107 Nev. 119, 119 (1991) Sierra Glass & Mirror v. Viking Industries
SIERRA GLASS & MIRROR, Appellant, v. VIKING INDUSTRIES, INC., Respondent.
No. 20671
March 28, 1991 808 P.2d 512
Appeal from a judgment for Viking Industries, Inc., in a breach of contract action. Eighth
Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Oregon manufacturer-seller brought action against buyer to recover contract price of goods
sold. The district court entered judgment for manufacturer-seller. Buyer appealed. The
supreme court held that manufacturer-seller was not required to comply with Nevada foreign
corporation law before bringing action.
Affirmed.
[Rehearing denied June 27, 1991] Jones, Jones, Close & Brown and Kirk R.
Jones, Jones, Close & Brown and Kirk R. Harrison, Las Vegas, for Appellant.
Morton & McCullough, Ltd. and Eric Dobberstein, Las Vegas, for Respondent.
1. Corporations.
Oregon manufacturer-seller's connections with Nevada did not require it to qualify as a foreign corporation doing business in state
before bringing action against buyer to recover contract price of goods; manufacturer-seller conducted large volume of interstate
transactions with Nevada but did not maintain office there and only had one agent soliciting contracts in Reno and Las Vegas and thus
had not localized itself into the community such that its activities would have taken on an intrastate quality. NRS 80.210, subd. 1(b).
2. Commerce.
To minimize restrictions on flow of interstate commerce, states may not impose their foreign corporation filing statutes on
companies which send salesmen into forum state to promote interstate trade; however, when quantity of business in forum state
becomes substantial, nature of business can be deemed intrastate, subjecting company to forum state's regulations of foreign
corporations.
3. Corporations.
Test to determine if foreign corporation is doing business in state and is required to comply with foreign corporation statutes
before bringing action in state requires courts to first look at nature of corporation's business functions in forum state and to quantity of
business conducted in state.
4. Commerce.
State statutes violate commerce clause when applied to defeat transaction which is part of interstate commerce. U.S.C.A.Const. art.
1, 8, cl. 3.
5. Appeal and Error.
If court makes no ruling, findings may be implied when clearly supported by record.
6. Attorney and Client.
Conduct of counsel in omitting portion of deposition when deposition is read into record, and giving impression that entire
document is being proffered, resulting in buttressing of his party's position is fraud on the court warranting the imposition of sanctions.
SCR 172, 172, subd. 1(a),(d).
Attorney has no obligation to proffer evidence that helps opponent but if attorney represents that he is proffering entire document,
omitting pertinent portions of document is blatant fraud on the court. SCR 172, 172, subd. 1(a),(d).
OPINION
Per Curiam:
Respondent Viking Industries, Inc. (Viking) is an Oregon corporation which
manufactures and sells windows to buyers in thirty different states.
corporation which manufactures and sells windows to buyers in thirty different states. Viking
brought a breach of contract action against Sierra Glass & Mirror (Sierra), a Nevada
company, when Sierra refused to pay for windows delivered. A bench trial resulted in a
$53,529.00 verdict in which the court awarded Viking the contract price of $31,958.08,
minus the salvage value that Viking received, plus shipping costs, interest, and attorney's
fees.
Throughout the course of the trial, Sierra asserted that Viking was not entitled to bring this
action in a Nevada court because it is a foreign corporation doing business in Nevada and has
not complied with NRS 80.210(1)(b).
1
This statute precludes foreign corporations doing
business in Nevada from commencing an action in Nevada courts if that corporation has not
filed qualifying documents with the Secretary of State. Whether Viking was in fact doing
business in Nevada is the sole issue that Sierra raised on appeal.
Viking's associations with Nevada are as follows: Its total sales volume amounts to
approximately $20,000,000 in the thirty states in which it conducts business. Of that amount,
about $3,000,000 is from sales into Nevada. At the time the cause of action arose, Viking had
one sales representative, Linda Aronsohn, who worked in Nevada. She resided in Las Vegas
and spent two weeks a month calling on customers and visiting sales prospects in Reno and
Las Vegas. Viking maintained a listed telephone in Las Vegas which operated out of
Aronsohn's home. Nevada customers would place orders through Aronsohn, who would then
phone the orders and send checks to Portland.
[Headnotes 1-3]
Viking asserts that its associations with Nevada were purely interstate, and therefore were
subject to federal regulation under the Commerce Clause. To minimize restrictions on the
flow of interstate commerce, states may not impose their filing statutes on companies who
send salesmen into the forum state to promote interstate trade. Robbins v. Shelby County
Taxing District, 120 U.S. 489 (1886). However, when the quantity of business in the forum
state becomes substantial, the nature of the business can be deemed intrastate, subjecting the
company to the forum state's regulations of foreign corporations.
__________

1
NRS 80.210(1)(b) provides in pertinent part:
1. Every corporation which fails or neglects to comply with the provisions of NRS 80.010 to 80.040,
inclusive:
. . . .
(b) . . . may not commence or maintain any action or proceeding in any court of this state until it has
fully complied with the provisions of NRS 80.010 to 80.040, inclusive.
regulations of foreign corporations. Eli Lilly & Co. v. Sav-On Drugs, 366 U.S. 276 (1961).
Therefore, the test to determine if a company is doing business in a state is two pronged.
Courts look first to the nature of the company's business functions in the forum state, and then
to the quantity of business conducted in the forum state.
In Eli Lilly, the court found that the out of state company was doing business in the state
because (1) it maintained an office and telephone in the state, (2) the lessor of the office was
the company's employee, (3) the office had a secretary and eighteen other salaried employees,
many of whom resided in the forum state, (4) these employees did promotional and
informational work and received orders for plaintiff's products, and (5) even though the
company only sold to wholesalers, its employees promoted the products by contacting
retailers who buy the products intrastate. Id. at 279-281. Viking's activities in Nevada at the
time this suit arose were not as pervasive as the factors listed in Eli Lilly. Instead, its conduct
was a cross between purely interstate transactions of a company that takes orders from the
forum state and fills them through its operations in the foreign state, and the intrastate nature
of a company that has an actual employee soliciting a large quantity of business within the
forum state. Hence, Viking's activities are interstate, but substantial, and therefore Viking sits
right on the fence between doing business and not doing business in Nevada.
The U.S. Supreme Court determined that states may impose their regulations on interstate
commerce so long as the state legislation does not express hostility toward interstate
commerce in violation of the Commerce Clause. Union Brokerage Co. v. Jensen, 322 U.S.
202, 210 (1944). In Jensen, a North Dakota customhouse brokerage business brought a
breach of fiduciary duty action in a Minnesota court. The Court found that the North Dakota
corporation had localized its business in Minnesota by buying materials, offering services,
and having a wide variety of dealings with the people in communities within the forum. Id. at
208. Therefore, Minnesota could subject the company to its own regulations regarding
foreign corporations without offense to the Commerce Clause. Id. at 212.
[Headnote 4]
However, state statutes do violate the Commerce Clause when applied to defeat a
transaction which is part of interstate commerce. Allenberg Cotton v. Pullman, 419 U.S. 20
(1974). In Allenberg, a Tennessee cotton merchant brought suit against a Mississippi cotton
grower who breached a contract. The Court found that even though the merchant conducted
regular business in Mississippi and had a continuous supply of inventory stored there, the
nature of the nature of the merchant's business was interstate because he did not sell the
cotton within Mississippi.
in Mississippi and had a continuous supply of inventory stored there, the nature of the
merchant's business was interstate because he did not sell the cotton within Mississippi. A
regulatory statute cannot defeat a transaction which, though having intrastate aspects, was in
fact a part of interstate commerce.' Id. at 30 (citing Dahnke-Walker Milling Co. v.
Bondurant, 257 U.S. 282, 292 (1921)).
Many state courts have followed the Allenberg lead, and determined that something more
than continuous business in the forum state is necessary before the state may subject foreign
corporations to its statutes. North Alabama Marine v. Sea Ray Boats, 533 So.2d 598 (Ala.
1988) (in-state activities of advertising, maintenance, and overseeing performance of
contracts were incidental to interstate commerce and did not bar foreign corporation from
Alabama courts); Panhandle Agri-Service Inc. v. Becker, 644 P.2d 413 (Kan. 1982) (buyer
who traveled in and out of state to fulfill contracts was not doing business in the state);
Carolina Components v. Brown Wholesale Co., 250 S.E.2d 332 (S.C. 1978) (shipping
merchandise to fill orders solicited by a sales representative does not subject corporation to
forum state regulations). The general consensus of state courts is that whether a company is
doing business must be determined on a case-by-case basis. Courts must consider factors such
as the quantity of business, the permanence and number of employees, and the presence of a
company office, but the main question, as explained in Jensen, is whether the company has
localized its business in the forum state. Jensen, 322 U.S. at 210. In this case, Viking
conducted a large volume of interstate transactions with Nevada, but it did not maintain an
office here, and it only had one agent soliciting contracts in Reno and in Las Vegas.
Therefore, although Viking conducts continuous business here, it has not localized itself into
the Nevada community.
Sierra asserts that Nevada law has stricter filing requirements than many other states. NRS
80.015,
2
enacted in 1989, defines not doing business quite narrowly by actually listing
activities for which foreign companies need not file. The statute states that activities that do
not constitute doing business in Nevada include sales through independent contractors,
advertising in and shipping goods to Nevada, and isolated transactions completed within
thirty days.
__________

2
NRS 80.015. Activities that do not constitute doing business in Nevada. For the purposes of this chapter, .
. . the activities that do not constitute doing business in this state include:
1. Making sales through independent contractors;
2. Soliciting or receiving orders outside of this state through or in response to letters, circulars, catalogs or
other forms of advertising, accepting those orders outside of this state and filling them by shipping goods into
this state; and
3. Isolated transactions completed within 30 days and not a part of a series of similar transactions.
activities that do not constitute doing business in Nevada include sales through independent
contractors, advertising in and shipping goods to Nevada, and isolated transactions completed
within thirty days. Sierra asks this court to consider the factors listed in NRS 80.015
instructive on the definition of doing business in Nevada, even though the statute was enacted
after this suit was commenced. However, before the legislature enacted NRS 80.015, Nevada
had no analogous statute. Therefore, we cannot impute knowledge of those factors to Viking.
In previous Nevada cases that have addressed this issue, we permitted the foreign
corporation's suit to go forward by concluding that it need not qualify to do business in this
state. Sierra points out that each case involved foreign companies whose connections with
Nevada were fewer than Viking's. In re Hilton Hotel, 101 Nev. 489, 706 P.2d 137 (1985)
(conducting a single piece of businessattending a convention in Nevadadoes not
constitute doing business); Peccole v. Fresno Air Serv., Inc., 86 Nev. 377, 469 P.2d 397
(1970) (foreign corporation's solicitation of agreement to transport Nevada passengers within
another state in promotion of interstate business did not constitute doing business in state for
purposes of NRS 80.210). Patterson v. Condos, 55 Nev. 134, 28 P.2d 499 (1934)
(predecessor to NRS 80.210 does not apply to a supplier who does only occasional business
in the state).
Even though the activities of the corporations in Hilton Hotel, Peccole, and Patterson
were more sporadic, or less connected to Nevada than Viking's activities, our reasoning in
those cases applies to Viking's situation. For example, in Peccole, a California company
called Fresno Air sent a representative into Nevada to solicit contracts. The company's duty
under the contract was to fly passengers from Fresno to Truckee as part of a vacation
package. The court decided that a corporation is free to send a representative into Nevada to
promote interstate trade without interference from regulations imposed by this state.
Peccole, 86 Nev. at 380, 469 P.2d at 398. Like Fresno Air, Viking's Nevada employee
promoted interstate trade. Viking's situation might be distinguishable by its volume of
business in Nevada, but not by the nature of that business.
As we mentioned earlier, Viking's activities are predominantly interstate, but its high
volume of sales in Nevada approaches a quantity that might subject a company to regulation.
Unlike Eli Lilly, Viking had only one Nevada employee instead of eighteen, and only
contacted companies who would buy products directly from Viking. Cf., Eli Lilly, 366 U.S. at
279-281. It had no business office in Nevada, although it did have a phone listed in the Las
Vegas directory. Also, it tried to complete all transactions with Nevada companies within
thirty days unless the other party requested an extension.
with Nevada companies within thirty days unless the other party requested an extension.
However, like Eli Lilly, but unlike the Nevada cases and NRS 80.015, Viking's business in
Nevada was continuous and systematic as opposed to isolated and occasional. This
transaction with Sierra amounted to only about 1/100 of Viking's total sales volume in
Nevada for 1983. In addition, Ms. Aronsohn was not an independent contractor, but an
employee of Viking who lived and worked in Nevada.
Although Viking's activities do appear to be continuous and systematic, we cannot say that
it had so localized itself into the community that its activities in Nevada took on an intrastate
quality. Therefore, we affirm the judgment of the district court holding Sierra liable for
breach of contract. Viking's connections with Nevada did not prohibit it from bringing suit in
Nevada courts.
[Headnote 5]
In its findings of fact and conclusions of law, the district court never discussed Viking's
capacity to sue as it should have pursuant to NRCP 52(a). If the court makes no ruling,
findings may be implied when clearly supported by the record. Hardy v. First Nat'l Bank of
Nev., 86 Nev. 921, 478, P.2d, 581 (1970); Pease v. Taylor, 86 Nev. 195, 465 P.2d 109
(1970). The complexities involved in this case should have prompted the district court to rule
on this issue. However, the conclusion that Viking need not qualify as a foreign corporation
doing business in Nevada is implicit in the district court's ruling in Viking's favor in the
underlying action. As we are affirming the judgment, we see no reason to remand the case for
a finding which the lower court implied in its judgment.
Imposition of Sanctions
[Headnote 6]
Viking's sales representative in Nevada, Linda Aronsohn, was unavailable at trial.
Therefore, the district court permitted Viking to read her deposition into the record. In doing
so, counsel for Viking omitted the portion where Aronsohn specifically states that she resided
in Las Vegas. This omission appears to have been intentional.
In its answering brief, counsel for Viking specifically stated that its Nevada representative,
Linda Aronsohn, did not reside in Nevada. If true, this fact would buttress Viking's argument
that it was not conducting business in Nevada. However, counsel for Viking knew or should
have known from the omitted portion of the deposition that Aronsohn lived in Las Vegas.
Sierra wrote a letter to Viking's counsel complaining of this misstatement.
letter to Viking's counsel complaining of this misstatement. Viking subsequently filed a
notice of errata in which it changed its statement that Aronsohn did not live in Nevada to a
connotation of the record is that she did not live in Nevada.
Counsel for Viking contends that such a connotation is possible because an associate who
had not participated in this case at the trial level prepared the appellate brief. In his review of
the record, he would not have discovered Aronsohn's place of residence. Therefore, even if
the associate should not have made the positive representation that Aronsohn resided outside
of Nevada, he was correct in asserting that a connotation of the record is that she did not
reside in Nevada, and anything less than that assertion would not be proficient appellate
advocacy. Also, counsel for Viking asserts that if Sierra wanted Aronsohn's domicile in the
record, it should have objected when Viking omitted that part of her deposition from the
record.
[Headnote 7]
Unfortunately, what Viking's counsel considers clever lawyering and proficient advocacy
is nothing other than a fraud on the court in violation of SCR 172(1)(a) and (d).
3
An attorney
has no obligation to proffer evidence that helps the opponent. But if an attorney represents
that he or she is proffering and entire document, omitting pertinent portions of that document
is a blatant fraud. Omitting Aronsohn's domicile from the record was not clever lawyering,
but an act which was calculated to mislead the tribunal in violation of SCR 172. Equally
egregious is Viking's counsel's assertion that Sierra could have objected to the omission. A
fraud remains a fraud even when the perpetrator does not get caught.
Viking's counsel's actions after the original fraud are even more reprehensible. The firm
made an affirmative representation in its appellate brief that it should have known was false,
and then blamed the error on the fact that a different attorney in the same firm, and associate,
wrote the brief. Whether that associate knew he was making a false statement of material fact
to the court, or whether he honestly read the record and was unaware of his mistake, makes
no legal difference. All knowledge available to the firm is imputed to the attorney writing
the appellate brief.
__________

3
SCR 172. Candor toward the tribunal.
1. A lawyer shall not knowingly:
(a) Make a false statement of material fact or law to a tribunal;
. . . .
. . . .
(d) Offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to
know of its falsity, the lawyer shall take reasonable remedial measures.
the firm is imputed to the attorney writing the appellate brief. Therefore, the statements in the
brief regarding Aronsohn's domicile are a direct violation of SCR 172(1)(a).
Perhaps the most egregious action that Viking's counsel took was their failure to correct
the misstatement once it was brought to their attention. If the record truly connotes that
Aronsohn did not live in Nevada, it is only because Viking's counsel omitted part of her
entire deposition. Their failure to correct the misstatement with something more than an
assertion that their false statement could be true is a violation of SCR 172(1)(d). Viking's
counsel knew a representation in the brief was false, but refused to retract it as required by the
Supreme Court Rules.
If Viking's counsel felt justified in their actions, they clearly have confused the concepts of
effective advocacy and fraud. Perhaps some additional education is necessary to clarify these
vastly separate concepts, but meanwhile, sanctions are warranted pursuant to SCR 101 and
SCR 102. The issue which prompted the misrepresentations does not change the outcome of
the case, as Aronsohn's actual domicile does not have a great effect on the nature or quantity
of Viking's business in Nevada. Still, an ineffective fraudulent scheme is fraudulent,
nonetheless. Therefore, we refer Viking's counsel to the Southern Nevada Disciplinary Board
of the State Bar of Nevada to impose the appropriate sanctions.
___________
107 Nev. 127, 127 (1991) Scotsman Mfg. v. State, Dep't of Taxation
SCOTSMAN MANUFACTURING COMPANY, INC., a California Corporation, Appellant,
v. THE STATE OF NEVADA, THE NEVADA DEPARTMENT OF TAXATION,
and THE NEVADA TAX COMMISSION, Respondents.
No. 20720
March 28, 1991 808 P.2d 517
Appeal from a district court order granting a cross-motion for summary judgment. First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
State sales tax imposed upon modular home builder which sold homes used by
Department of Energy at government test site. State Tax Commission refused manufacturer's
request for relief from imposition of tax. Manufacturer commenced declaratory judgment
action. The district court granted Tax Commission's motion for summary judgment.
Manufacturer appealed. The supreme court held that trial court erroneously applied
"constituent part" test to determine if state sales tax could be imposed.
constituent part test to determine if state sales tax could be imposed.
[Rehearing denied August 28, 1991]
Guild & Hagen, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, and Kateri Cavin, Deputy Attorney General,
Carson City, for Respondents.
1. Taxation.
Sales tax is imposed by State on retail sale of tangible personal property. NRS 372.105.
2. Taxation.
Use tax is imposition of excise tax by State on storage, use, or other consumption of tangible personal property. NRS 372.185.
3. States; Taxation.
Determination of whether State imposed use tax upon federal contractor violates supremacy clause of federal constitution requires
constituent part analysis while constitutionality of state sales tax imposed upon same contractor should be considered under legal
incidence analysis. U.S.C.A.Const. art. 6, cl. 2; NRS 372.105, 372.185.
4. States; Taxation.
Constituent part analysis was erroneously applied to determine whether imposition of state sales tax on manufacturer of modular
homes installed at federal government test site violated supremacy clause of federal constitution; constitutionality of imposition of state
sales tax should have been analyzed under legal incidence test. U.S.C.A.Const. art. 6, cl. 2; NRS 372.105, 374.345.
OPINION
Per Curiam:
In this appeal, the court is asked to consider the effect of the Supremacy Clause of the
United States Constitution, U.S. Const. art. VI, cl. 2, upon Nevada's attempt to impose a sales
tax upon a modular home builder who sold homes used by the United States Department of
Energy (Department of Energy). Ruling upon a cross-motion for summary judgment, the
district court held that the sale of modular homes was not exempt from Nevada state sales
taxes as a matter of law. For the following reasons, we reverse.
THE FACTS
Scotsman Manufacturing Company, Inc. (Scotsman) is a California corporation involved
with the construction of modular homes. Reynolds Electrical and Engineering Corporation,
Inc. (REECo) is a Texas corporation and is a Department of Energy prime contractor.
Energy prime contractor. Under the terms of REECo's prime contract with the Department of
Energy, REECo was responsible for soliciting bids for the design, manufacture, and
transportation of modular housing units to be installed on federal land at the Tonopah Test
Site.
In December 1983, REECo requested bids for the modular houses in a bid request that
specifically provided that any subcontract for the construction of the modular homes was:
[E]ntered into for and on behalf of the United States of America, and title to all
equipment and materials furnished . . . shall pass directly from the Subcontractor to the
Government. Payment for work, equipment and materials furnished . . . will be made
directly from funds belonging to the United States. . . .
Scotsman submitted a bid and was awarded the subcontract to provide the modular housing
units.
In July 1984, Scotsman received a letter from the State of Nevada Department of Taxation
(Department of Taxation) informing Scotsman that it was required to register with the
Department of Taxation and pay either sales or use taxes for the sale of the modular homes.
After further communication, the Department of Taxation wrote another letter to Scotsman on
September 18, 1986. This second letter asserted the Department of Taxation's position that
Scotsman was required to pay a 3.75 percent state sales tax on the monies it received for the
sale of modular homes for the Tonopah Test Site.
Scotsman appealed the Department of Taxation's decision to the Nevada Tax Commission
who refused Scotman's request for relief. The Nevada Tax Commission ordered the revenue
division of the Department of Taxation to determine the total amount of sales taxes, penalties,
and interest due from Scotsman.
Scotsman initiated a suit for declaratory relief in the district court prior to an audit and
deficiency determination by the Department of Taxation. Ruling on cross-motions for
summary judgment, the district court held, as a matter of law, that Scotsman was liable to
collect and pay a state sales tax for its sale of modular housing units used by the Department
of Energy. This appeal followed.
SUMMARY JUDGMENT
Under NRCP 56(c), summary judgement 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. Leven v.
Wheatherstone Condominium Corp., 106 Nev. 307, 309, 791 P.2d 450, 451 (1990).
Therefore, the issue herein asks whether the district court was correct in ruling that there
are no genuine issues of fact remaining in this action, and that as a matter of law, the
collection of state sales taxes in this case is not proscribed by the Supremacy Clause of
the United States Constitution.
the district court was correct in ruling that there are no genuine issues of fact remaining in
this action, and that as a matter of law, the collection of state sales taxes in this case is not
proscribed by the Supremacy Clause of the United States Constitution.
THE SUPREMACY CLAUSE AND STATE TAXATION
In United States v. New Mexico, 455 U.S. 720 (1982), the United States Supreme Court
was asked to decide whether federal contractorsacting for the Atomic Energy Commission
and its successor, the Department of Energywere subject to the State of New Mexico's
sales and use taxes. Justice Blackmun, speaking for a unanimous Court, reevaluated some of
the United States Supreme Court's earlier cases and admitted that the law concerning state
taxation of federal government contractors has been marked from the beginning by
inconsistent decisions and excessively delicate distinctions. Id. at 730. Justice Blackmun's
characterization of the confusing nature of the law in this area is, in our opinion,
appropriate, Id. at 733. Accordingly, we offer the following background analysis.
A. The Supremacy Clause.
[Headnotes 1, 2]
[T]he power to tax involves the power to destroy. McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 431 (1819). Thus, under the Supremacy Clause of the United States
Constitution, a state cannot impose a tax directly upon the federal government. However, it is
not always easy to decide when the tax falls upon the federal government, or upon some other
entity closely associated with the United States, especially in light of the subtle distinctions
drawn by the United States Supreme Court between state sales and use taxes.
1

B. State Sales Taxes.
In Alabama v. King & Boozer, 314 U.S. 1 (1941), the United States Supreme Court upheld
an Alabama sales tax imposed on materials purchased by cost-plus-fixed-fee contractors.
2
King and Boozer were to supply materials to
__________

1
An understanding of the distinction between a state sales tax and a state use tax is critical in this analysis. In
Nevada, a state sales tax is imposed upon the retail sale of tangible personal property. See NRS 372.105. On the
other hand, Nevada's use tax imposes an excise tax on the storage, use, or other consumption of tangible
personal property. See NRS 372.185.

2
Generally, under a cost-plus-fixed-fee contract, the federal government pays all of a contractor's overhead
expenses and provides facilities to the contractor for the contractor's use. These facilities include such things as
laboratories, offices, or factories, and are used by the contractor to provide a
Boozer were to supply materials to the United States government to be purchased upon the
government's credit. Thereafter, the government was to reimburse the contractors on delivery
and acceptance of the materials. The Supreme Court held that under the facts of the case,
King and Boozer were subject to Alabama's sales tax because, in effect, King and Boozer
purchased the materials before they resold them to the government. The Court reasoned:
[T]he contractors were to purchase in their own names and on their own credit all the
materials required, unless the Government should elect to furnish them; that the
Government was not to be bound by their purchase contracts, but was obligated only to
reimburse the contractors when the materials purchased should be delivered, inspected
and accepted at the site.
Id. at 11. The Court concluded that the state sales tax was appropriate even though the costs
of the tax would eventually be passed on to the United States.
However, in a later ruling styled Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110 (1954), the
Court reasserted its position that a state could not impose its sales tax directly upon the
federal government. In Kern-Limerick, a contractor acted as a purchasing agent under a
cost-plus-fixed-fee contract to supply tractors to the United States Navy. The state of
Arkansas attempted to place a sales tax upon the sale of the tractors, asserting the sale to be to
the contractor, rather than to the federal government.
The United States Supreme Court held that Arkansas could not constitutionally require the
federal contractor in Kern-Limerick to pay the sales tax in question because the legal
incidence of the tax did not fall upon the contractor. Rather, it fell directly upon the United
States in violation of the Supremacy Clause because: (1) the federal government's contractor
identified itself as a federal procurement agent to the tractor retailers; (2) the title to the
tractors passed directly from the vendor to the federal government, not to the contractor; (3)
the purchase orders declared that the purchase was made by the federal government and that
the federal government was liable on the sale; and (4) the contractor was not directly liable to
the vendor for payment of the purchase price. Id. at 119-122.
__________
service or product to the federal government. In return, the federal government pays the contractor a fixed fee
for the contractor's services. See, e.g. United States v. New Mexico, 455 U.S. at 722-726.
C. State Use Taxes.
As previously noted, under federal government cost-plus-fixed-fee contracts, after
contractors purchase materials and production equipment on behalf of the United States, the
United States will sometimes turn the materials and production equipment back to the
contractor for the contractor's use. The contractor will then manufacture items for the
government under the contract.
For example, in United States v. Boyd, 378 U.S. 39 (1964), Union Carbide and H. K.
Ferguson Company sued the state of Tennessee to recover sales and use taxes paid as a result
of a cost-plus-fixed-fee contract with the Atomic Energy Commission. The United States
Supreme Court upheld the lower court's conclusion that Union Carbide and H. K. Ferguson
were agents of the Atomic Energy Commission and therefore immune to state sales tax for
property purchased on behalf of the United States. However, the Court further ruled that
Union Carbide and H. K. Ferguson could nonetheless be taxed for their use of the same
property because the use of the property was not for the sole benefit of the government, but
was also for the contractor's commercial gain. As such, the contractor's use of the property
was a separate taxable activity even if the economic incidence of the tax was eventually borne
by the United States. Id. at 43-48.
Therefore, after Boyd, unless a contractor was an instrumentalit[y] of the United States,
the contractor did not partake of the United States' immunity from state use taxes.
3
Id.
D. United States v. New Mexico.
The instrumentality of the United States analysis used in Boyd to determine the
constitutionality of a state imposed use tax was rephrased in United States v. New Mexico,
455 U.S. 720 (1982), where the Supreme Court held that unless a contractor is a constituent
part of the United States, they are not cloaked in the federal government's immunity from
state use taxes. Id. at 741-742.
The constituent part analysis utilized by the Court considered whether: (1) the contractors
were privately owned corporations; {2) the federal government ran the contractor's
day-to-day operations; and {3) the government had an ownership interest in the
contractors' operations. Id. at 739-740.
__________

3
But see Livingston v. United States, 364 U.S. 281 (1960), where the United States Supreme Court ruled
that a contractor who used federal government property to provide a service to the United States was not subject
to a state use tax, even though the contractor was not incorporated into the federal government, because the
contractor's total remuneration under the contract was only one dollar and the contractor otherwise had no hope
of gain by using the government's facilities. Livingston indicates that unless the contractor gains or can hope to
gain from using the federal property, a state may not impose a use tax.
(2) the federal government ran the contractor's day-to-day operations; and (3) the government
had an ownership interest in the contractors' operations. Id. at 739-740.
However, it must be remembered that the United States v. New Mexico constituent part
analysis was only applied to New Mexico's use tax, and not to its sales tax. The Supreme
Court indicated as much when it stated:
In the case of sales tax . . . it is arguable that an entity serving as a federal procurement
agent can be so closely associated with the Government, and so lack an independent
role in the purchase, as to make the salein both a real and a symbolic sensea sale to
the United States, even though the purchasing agent has not otherwise been
incorporated into the Government structure.
Id. at 742 (emphasis added). Accordingly, the United States Supreme Court applied the
Kern-Limerick analysis to determine if New Mexico's sales tax was constitutionally applied
to the federal contractors in that case. Id.
[Headnote 3]
In synthesizing these cases, we conclude that the United States Supreme Court requires a
constituent part analysis to determine the constitutionality of a state imposed use tax upon a
federal contractor, while the constitutionality of a state sales tax imposed upon the same
contractor should be considered under the Kern-Limerick legal incidence analysis.
THE ANALYSIS USED BY THE DISTRICT COURT
The district court below failed to recognize the dual analytical approach utilized by the
United States v. New Mexico. The district court found that:
Scotsman [was] clearly a retailer of tangible personal property and not a construction
contractor subject to use tax.
(Emphasis added.) Thereafter, the district court below concluded that [u]nder United States
v. New Mexico, . . . there [was] no constitutional impediment to the imposition of [a] sales tax
to the transactions at issue. (Emphasis added.) Unfortunately, the district court came to this
conclusion by applying the United States v. New Mexico constituent part analysis for a use
tax. The district court reasoned:
The contract [was] between REECo and Scotsman; the United States [was] not a
party. Both REECo and Scotsman are privately owned businesses operated for profit.
The government does not run either REECo's or Scotsman's day-to-day operations
or even have any ownership interest in either company.
government does not run either REECo's or Scotsman's day-to-day operations or even
have any ownership interest in either company.
[Headnote 4]
The district court erred. Since a sales tax was at issue, the district court should have
applied the Kern-Limerick legal incidence analysis to the facts to determine if the
imposition of the sales tax in this case violated the Supremacy Clause of the United States
Constitution.
4

CONCLUSION
To reiterate the Court's analysis in United States v. New Mexico, it is possible that REECo
was so closely associated with the federal government, and so lacked an independent role in
the purchase of the modular homes, as to make the salein both a real and a symbolic
sensea sale to the United States, even though REECo is not otherwise incorporated into the
federal government. Id. at 742. Therefore, we conclude that the district court erred when it
employed the constituent part analysis of United States v. New Mexico to determine, as a
matter of law, if Nevada could constitutionally impose its sales tax upon Scotsman's sale of
the modular homes installed at the Tonopah Test Site. We reverse the district court's grant of
summary judgement and remand for entry of summary judgment in favor of Scotsman.
__________

4
We should note, at this juncture, NRS 374.345 which says:
The taxes imposed under this chapter apply to the sale to and the storage, use or other consumption in
this state of tangible personal property by a contractor for a governmental, religious or charitable entity
which is otherwise exempted from the tax, unless the contractor is a constituent part of that entity.
(Emphasis added.) Under this statute, if property is sold to a federal contractor, the contractor must be a
constituent part of the United States to avoid a state sales tax. However, again, the threshold issue asks whether
the sale is to the contractor or the United States. If, under a Kern-Limerick analysis, the sale is not to the federal
contractor, but is to the United States in both a real and symbolic sense, a tax cannot be imposed upon the
federal government under the Supremacy Clause. United States v. New Mexico, 455 U.S. at 742.
____________
107 Nev. 135, 135 (1991) Robinson v. G.G.C., Inc.
JEFFREY W. ROBINSON, Appellant, v. G.G.C., INC., dba ENTERPRISE COMPANY,
Respondent.
No. 20836
March 28, 1991 808 P.2d 522
Appeal from a judgment for respondent in a products liability action. Eighth Judicial
District Court, Clark County; Earle W. White, Jr., Judge.
User brought action against manufacturer of box crushing machine to recover for injury to
hand. The district court entered judgment on jury verdict in favor of manufacturer. User
appealed. The supreme court, Rose, J., held that: (1) warnings shielded manufacturer from
liability unless defect could have been avoided by commercially feasible change in design
that was available at time that manufacturer placed product in stream of commerce; (2)
evidence of prior and subsequent accidents with analogous machines, alternative designs, and
subsequent remedial measures was admissible; and (3) baling machine standards promulgated
by American National Standards Institute were admissible.
Crockett and Myers, Las Vegas; James R. Lucas, Las Vegas, for Appellant.
Samuel A. Harding, Las Vegas; John Hurley, Santa Ana, California, for Respondent.
1. Products Liability.
Warnings shielded manufacturer from liability unless defect could have been avoided by commercially feasible change in design
that was available at time that manufacturer placed product in stream of commerce.
Strict products liability law should not punish manufacturers for unanticipated injuries from reasonably safe products, but it
should encourage manufacturers to take all measures to avoid accidents from product misuse.
Generally, substantial alteration shields manufacturer from liability for injury that results from that alteration, but if alteration was
insubstantial or foreseeable or did not actually cause injury, then manufacturer of defective product remains liable.
Evidence of prior and subsequent accidents with similar box crushing machines was admissible in strict liability suit to show
defective and dangerous condition and causation.
Evidence of safety devices on analogous machines in existence when box crushing machine was made was admissible to show that
machine could have been made without the defect and to dispute claim of manufacturer's expert that design was reasonably safe and
was state of the art when machine was built.
Evidence of manufacturer's subsequent remedial measures by redesigning box crushing machine to include interlocking safety
guard after user's hand was injured was admissible in strict liability action. NRS 48.095.
Baling machine standards promulgated by American National Standards Institute were admissible on issue of safety of box
crushing machine, even though machine was made before standards were promulgated; manufacturer could rebut any false
presumptions by informing jury of date of promulgation of standards and by showing failure of industry to adhere to standards when
machine was sold.
Legislative or administrative regulatory standards are admissible as evidence of product's safety.
Post-manufacturer industry standards are circumstantial evidence that alternative courses of conduct may have been available to an
entire industry.
10. Evidence.
Evidence that expert had testified many times for manufacturer of box crushing machine and manufacturer's lawyer was
admissible to impeach expert in products liability suit.
11. Evidence.
Statement to repairman of box crushing machine was not hearsay in products liability suit, where it was offered to show how
repairman formed opinion regarding damage to the machine, and how he chose to fix it.
Repairman's comparison of box crushing machine to another baler was inadmissible in products liability suit without showing of
date that other baler was built.
OPINION
Appellant Jeffrey W. Robinson suffered permanent damage to his hand when he tried to
remove an object from a box crushing machine. Robinson was a boxboy at Lucky's
Supermarket and was operating the machine when the accident occurred. He sued the
manufacturer of the machine, G.G.C., Inc., dba Enterprise Company (Enterprise) on a strict
products liability theory based on defective design. The jury returned a verdict for Enterprise
and Robinson asserts several errors on appeal.
FACTS
On July 26, 1985, Robinson was operating a hydraulic crushing machine used to flatten
cardboard boxes. As he was filling the machine, he saw something caught in the crushing
device, called the ram, and reached in to pull the item out. While yanking on the object, he
fell backward and lost his balance. Then he was somehow knocked forward and got his hand
caught in the machine. From that position, he could not reach the stop button and had to call
for someone else to shut off the machine. His hand was badly damaged.
The machine is called a crusher or a baler, and was designed by Enterprise in about 1969
and manufactured in 1979. It had a protective screen that had been broken and removed four
or five months before the accident. In this model, the screen serves as a safety gate and
operates in concert with the ram. The screen descends over the opening of the machine ahead
of the ram, so that it closes before the ram comes all the way down. If anything falls into the
path of the screen, the screen and the ram automatically retract halting the crushing process.
However, on top of the machine is a limit switch which controls the safety screen. An
operator can fasten the switch in an off position so that the baler will still function without
operation of the safety screen. In this case, the switch had been in the off position for at least
four or five months.
Robinson asserted at trial that the removable screen was a design defect that was
unreasonably dangerous to the consumer. He claimed that the machine was defective because
(1) it should not have been functional without the safety screen in place, and (2) the safety
screen jutted out making it susceptible to damage or detachment. He proposes that the jury
found against him because the court gave a misleading jury instruction and excluded relevant
evidence.
The assertions of error are the following: (1) the jury instruction regarding legally
sufficient warnings effectively directed a verdict for the defendant; (2) the court should have
admitted evidence of (a) prior/subsequent accidents with analogous machines, (b) the design
of analogous machines built in or before 1979, (c) post-manufacture pre-accident design
changes, and (d) American National Standards Institute (ANSI) standards that had been
promulgated for this type of machine in 1982, and for analogous machines in previous years;
(3) the court should have permitted Robinson to impeach a defense witness for bias; and (4)
the court excluded some deposition testimony of one of Robinson's witnesses. Three of these
assertions have merit and entitle Robinson to a new trial.
LEGAL DISCUSSION
I. The misleading jury instruction.
[Headnote 1]
Enterprise placed warning decals on the machine which warned consumers to keep hands
clear of the machine. Enterprise contends that these decals should shield it from liability. In
conformance with Enterprise's theory, the court gave a jury instruction which read, [a]
product which bears suitable and adequate warnings concerning the safe manner in which the
product is to be used and which is safe to use if the warning is followed is not in a defective
condition.
Robinson contends that this instruction effectively directed a verdict for the defendant
because it told the jury that warnings shield manufacturers from liability. This court has
already held that manufacturers can still be liable for a foreseeable misuse of a product in
spite of an adequate warning. Crown Controls Corp. v. Corella, 98 Nev. 35, 639 P.2d 555
(1982). In Crown, the plaintiff was injured when a power lift stacker fell on him. This court
determined that a manufacturer cannot be liable for an abnormal and unintended use of a
product, but may be liable for a foreseeable misuse. Id. at 37, 639 P.2d at 557. Therefore, in
spite of a warning, the defendant in Crown was still liable for a foreseeable misuse.
[Headnote 2]
The question before us now is when, in spite of an adequate warning, a manufacturer is
still liable for a foreseeable misuse. When the defect in the product is the lack of a safety
device, the misuse is often an accidental misuse. In these situations, a warning, although it
adequately informs of the danger, is of no help to the consumer. Strict products liability law
should not punish manufacturers for unanticipated injuries from reasonably safe products, but
it should encourage manufacturers to take all measures to avoid accidents from product
misuse. Therefore, we must require manufacturers to make their products as safe as
commercial feasibility and the state of the art will allow.
Many jurisdictions have adopted the rule that a manufacturer may be liable for the failure
to provide a safety device if the inclusion of the device is commercially feasible, will not
affect product efficiency, and is within the state of the art at the time the product was placed
in the stream of commerce. Titus v. Bethlehem Steel Corp. 154 Cal.Rptr. 122 (Ct.App. 1979)
(oil well pumping unit designed without adequate safety features may be considered
defective). See also Fabian v. E.W. Bliss Co., 582 F.2d 1257 (10th Cir. 1987) (failure to
incorporate a safety device into a punch press renders manufacturer liable for design
defect); Scott v. Dreis & Krump Manufacturing Co.,
into a punch press renders manufacturer liable for design defect); Scott v. Dreis & Krump
Manufacturing Co., 326 N.E.2d 74 (Ill.App. 1975) (manufacturer's liability for failure to put a
safety guard on a press brake was a jury question); Fischer v. Cleveland Punch and Shear
Works Co., 280 N.W.2d 280 (Wis. 1979) (failure to interlock circuits on punch press created
foreseeable risk of injury). These cases promote a compound goal of encouraging
manufacturers to make products safe without unduly burdening them with excessive liability
without fault.
In Titus, supra, the court found a manufacturer liable when a child who was riding on an
oil well pumping unit fell into the unguarded crank area. Even though the child's action was a
misuse of the product, the court found the unit defective because it did not have a safety
guard that would have prevented the injury. The court stated,
[A]ny product so designed that it causes injury created when used or misused in a
foreseeable fashion is defective if the design feature which caused the injury created a
danger which was readily preventable through the employment of existing technology
at a cost consonant with the economical use of the product. . . .
Titus, 154 Cal. Rptr. at 128. The Titus court recognized that factfinders must consider
existing technology and commercial feasibility when evaluating whether a product is
defective. Notwithstanding these factors, manufacturers are in the best position to include
devices to make their products safe. If the technology is available, the cost is not prohibitive,
and the product remains efficient, then a potentially dangerous product which lacks a safety
device is in a defective condition.
This case differs from Titus because here the machine that caused the injury had warning
decals. However, a warning is not an adequate replacement when a safety device will
eliminate the need for the warning. If manufacturers have the choice between providing an
effective safety screen or simply placing a decal on the product, cost will encourage the latter.
Therefore, Instruction 22A, which informed the jury that an adequate warning will always
shield manufacturers from liability, is not a correct statement of the law. Instead, warnings
should shield manufacturers from liability unless the defect could have been avoided by a
commercially feasibly change in design that was available at the time the manufacturer placed
the product in the stream of commerce.
[Headnote 3]
Enterprise did include a safety screen in its product. The evidence shows that the screen
was easily detachable and the machine could function without the screen in place.
machine could function without the screen in place. Still, the employer did have to alter the
machine slightly to make it function without the screen. Generally, a substantial alteration
will shield a manufacturer from liability for injury that results from that alteration. Gasdiel v.
Federal Press Co., 396 N.E.2d 1241 (Ill.App. 1979) (employer's substitution of a significantly
different starting mechanism on a punch press shielded the manufacturer from liability when
the press malfunctioned). However, if the alteration was insubstantial, foreseeable, or did not
actually cause the injury, then the manufacturer of a defective product remains liable. See
Medina v. Air-Mite, 515 N.E.2d 770 (Ill.App. 1987) (manufacturer of air press was not
shielded from liability when the employer failed to install a safety device on the machine). In
this case, the causal connection between the absent safety screen and the injury is clear.
Therefore, the question left to the jury is whether the employer's act of overriding the limit
switch was a substantial alteration of the product.
1

II. Other accidents and analogous machines.
[Headnote 4]
Robinson tried to offer evidence at trial of other accidents that occurred with similar
commercial machines to show that Enterprise knew of the danger this machine posed. This
court has recognized that prior and subsequent accidents are admissible in an action based on
strict liability. Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983) (prior and subsequent
mishaps are admissible to show faulty design); Ginnis v. Mapes Hotel Corp., 86 Nev. 408,
470 P.2d 135 (1970). In Ginnis, the plaintiff was injured in an automatic door. We held that
evidence of prior and subsequent repair orders and subsequent accidents involving the same
door were admissible to show a defective and dangerous condition and causation. Id at 413,
470 P.2d at 139.
[Headnote 5]
Robinson tried to offer evidence of safety devices on analogous machines to show that the
interlocking guard that Enterprise should have included in the baler has been available for
many years. This court has recognized that alternative safer designs are a factor in
determining the existence of a design defect. McCourt v. J.C. Penney Co., 103 Nev. 101, 734
P.2d 696 (1987). In McCourt, we reversed a defense verdict because the jury was not given
the opportunity to feel alternative safer fabrics, even though the defense expert claimed that
such fabrics were uncomfortable and therefore not commercially feasible. We noted that
when commercial feasibility is in dispute, the court must permit the plaintiff to impeach
the defense expert with evidence of alternative design. Id. at 103, 734 P.2d at 69S.
__________

1
Whether the machine should have contained a limit switch at all may be an additional issue if the
appropriate evidence is presented at trial.
when commercial feasibility is in dispute, the court must permit the plaintiff to impeach the
defense expert with evidence of alternative design. Id. at 103, 734 P.2d at 698. In this case,
Enterprise's expert testified that the design was reasonably safe, and that it was the state of the
art at the time it was built. Robinson should have had the chance to dispute that claim with
evidence of alternative designs that were available at the time.
2

III. Post-manufacture design changes.
[Headnote 6]
To comply with federal standards promulgated in 1982, Enterprise changed the design of
its baler to include an interlocking safety guard. NRS 48.095 provides that subsequent
remedial measures are not admissible to prove negligence or culpable conduct. Therefore, the
court below excluded evidence of these design changes.
However, this court had previously adopted the rule that such measures are admissible in
strict liability actions. Jeep Corporation v. Murray, 101 Nev. 640, 708 P.2d 297 (1985). In
Jeep, the manufacturer sent warning stickers advising consumers that their vehicles lacked
adequate occupant protection in the tops and doors. We concluded that the public policy
reason to exclude such evidence in negligence actions does not apply in strict liability cases.
Id. at 647, 708 P.2d at 302. A producer will not forego making improvements if failing to do
so will subject it to additional lawsuits. Therefore, the better rule is to admit post-accident
remedial measures, and let the jury decide if the manufacturer should have known how to
correct the defect at the time it built the product.
IV. American National Standards Institute (ANSI).
[Headnote 7]
In 1982, ANSI promulgated design standards for baling machines. One of the standards at
issue requires that the machine have an interlocking safety guard, meaning that the machine
cannot function without the guard in place. Enterprise claims that its baler was interlocking,
but it bases this claim on a pre-1982 definition of interlocking, instead of the ANSI
definition.
__________

2
Enterprise claims that Robinson never laid a foundation that the analogous machines he tried to offer were
in existence in 1979 when Enterprise placed its product in the stream of commerce. Other than argument of
counsel, Robinson made no offer of proof showing that he could establish the date in question. Therefore, we
make no ruling as to whether this particular evidence should have been admitted, or whether such a ruling,
standing alone, would require reversal of this case. We hold only that alternative safer designs that existed at the
time the product at issue was made are admissible to show that the product could have been made without the
defect.
definition of interlocking, instead of the ANSI definition. The court below excluded evidence
of the new standards because they did not exist when the manufacturer sold the machine, and
therefore did not reflect the state of the art at that time.
[Headnote 8]
Legislative or administrative regulatory standards are admissible as evidence of a product's
safety. Falk v. Keene Corp., 782 P.2d 974 (Wash. 1989) (evidence of compliance with
regulatory standards for asbestos products is relevant to the burden on the manufacturer to
design a safe product); Walker v. Maxwell City, Inc., 453 N.E.2d 917 (Ill.App. 1983) (ANSI
standards for motorcycle helmet admissible whether promulgated before or after the helmet
was made). Enterprise argued that standards promulgated after the baler was sold should be
inadmissible because Enterprise could not have complied with a standard not yet in existence.
However, Enterprise could offer evidence of the relevant dates, and thereby give the jury full
knowledge of the surrounding circumstances.
ANSI standards set design guidelines for manufacturers. The ramifications for failing to
comply with a standard varies depending on the product and the nature of the industry.
Enterprise could rebut any false presumptions a standard raises by informing the jury of the
date the institute promulgated the standard, or by showing that the industry did not adhere to
the standard when Enterprise sold the baler. However, these issues should go to weight, and
not admissibility of the industry or regulatory standards themselves. Seward v. Griffin, 452
N.E.2d 558 (Ill. App. 1983). In Seward, the trial court admitted federal motor vehicle
standards even though some were newer than the vehicle. The appellate court appropriately
left to the jury the determination of whether the manufacturer could have been expected to
adhere to the equivalent of the standard. Id. at 568.
[Headnote 9]
In addition, post-manufacture industry standards are circumstantial evidence that
alternative courses of conduct may have been available to an entire industry. D.L. By
Friederichs v. Huebner, 329 N.W.2d 890 (Wis. 1983). In Huebner the court admitted
evidence of post-manufacture industry standards which required manufacturers to include
safety features on forage wagons. Id. at 896. In finding that a whole industry may have been
producing a defective product, the court stated, the question is not whether anyone else was
doing more, although that may be considered, but whether the evidence discloses that
anything more could reasonably and economically be done. Id. at 907 {quoting Hancock v.
Paccar, Inc.,
(quoting Hancock v. Paccar, Inc., 283 N.W.2d 25, 35 (Neb. 1979)). The best way to
determine if a defendant should have built a safer product is to let the jury hear all the
evidence relating to the course of conduct of both the industry, and the particular
manufacturer.
V. Impeachment of the defense expert witness.
[Headnote 10]
The district court excluded testimony regarding the relationship between Enterprise,
Enterprise's counsel, and one of Enterprises expert witnesses. The expert had testified many
times for both Enterprise and its lawyer, who was in-house counsel for Enterprise.
Exposure of these relationships to the jury may have shown bias on the part of the expert.
Robinson asserts that this type of impeachment is a standard trial tactic. The United States
Supreme Court has emphasized that the exposure of a witness's motivation in testifying is a
proper and important function of the constitutionally protected right of cross-examination.
Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). Although Van Arsdall is a criminal
case which has stronger constitutional safeguards regarding cross-examination, the same
reasoning regarding bias applies in a civil trial. Frank B. Hall & Co. v. Buck, 678 S.W.2d 612
(Tex.App. 1984). In Hall, the court admitted evidence of the witness's personal business
dealings with the defendant corporation. The court held that, [t]he jury should be given the
opportunity to judge for themselves the witness's credibility in light of the relationship
between the parties, the witness's motive for testifying, or any matter which would tend to
influence the testimony given by a witness. Id. at 628.
Expert witness testimony is, in some respects, akin to a business arrangement between the
witness, the hiring attorney and the client. The trier of fact has the right to take business
associations into account when determining the credibility of witnesses and the weight to give
their testimony. Wittenberg v. Wittenberg, 56 Nev. 442, 452-53, 55 P.2d 619, 623 (1936) (in
weighing the evidence, the factfinder considered the relationships and business associations
between the litigants and their testifying witnesses). Robinson should have had the right to
expose the witness's previous dealing with Enterprise or its counsel.
[Headnote 11]
Robinson also asserts that the trial court erred by excluding certain parts of the deposition
testimony of his witness, Richard Kassow. Kassow was a repairman who had worked on this
machine several times. The trial court excluded (1) Kassow's opinion as to how the safety
screen was damaged; {2) Kassow's comparison of the design of this machine with that of
another baler; and {3) a diagram that Kassow drew of this machine.
opinion as to how the safety screen was damaged; (2) Kassow's comparison of the design of
this machine with that of another baler; and (3) a diagram that Kassow drew of this machine.
First, Kassow had heard from a third party how the machine was damaged. The trial court
concluded the third-party's statement was inadmissible hearsay. However, that information is
not hearsay if it is offered, not for the truth of the matter asserted, but to show its effect on the
hearer. See 6 J. Chadbourn, Wigmore on Evidence, 314 (1976). Here, the statement was
offered for its effect on Kassow and showed how Kassow formed his opinion regarding the
damage to the baler, and how he chose to fix it. For that purpose, his opinion on the issue
should have been admitted.
[Headnote 12]
Second, the court excluded Kassow's comparison of this machine to another baler because
Robinson could not show the date the other baler was built. Without such a showing, the
court was correct to exclude that evidence. Finally, the court excluded Kassow's drawing
because it found the drawing was cumulative and misleading. This decision was within the
discretion of the trial court.
CONCLUSION
Consequently, rulings of the district court constituted prejudicial error to Robinson. First,
Jury Instruction 22A does not adequately reflect strict products liability law regarding legally
sufficient warnings in light of commercial feasibility, the relevant state of the art, and the
foreseeable misuse of a product. Second, so long as adequate foundations are laid, the court
should admit evidence of: (1) prior and subsequent accidents with analogous machines, (2)
analogous machine designs available in 1979, (3) post-manufacture pre-accident design
changes, and (4) ANSI standards for this machine or for analogous machines promulgated
before the date of the accident. Finally, relationships between witnesses and the parties or
their counsel are admissible to show possible bias of a witness.
For the reasons stated above, we reverse the judgment for defendant Enterprise and
remand this case to the district court for a new trial.
Mowbray, C. J., Springer, Steffen and Young, JJ., concur.
____________
107 Nev. 145, 145 (1991) Slobodian v. State
ROBERT ALAN SLOBODIAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20848
March 28, 1991 808 P.2d 2
Appeal from judgment of conviction, pursuant to jury trial, of two counts of statutory
sexual seduction under NRS 200.368. Eighth Judicial District Court, Clark County; Stephen
Huffaker, Judge.
Defendant was convicted of two counts of statutory sexual seduction following a jury trial
in the district court and he appealed. The supreme court held that: (1) defendant could not be
convicted of statutory sexual seduction for commission of act which was not one of four
sexual acts specifically described in statute, and (2) State failed to show that victim consented
to sexual conduct, a necessary element of crime of statutory sexual seduction.
Reversed.
Momot & Tidwell, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General; Rex Bell, District Attorney, James Tufteland,
Deputy District Attorney, Don Chairez, Deputy District Attorney, Clark County, for
Respondent.
1. Rape.
An adult defendant could not be convicted of statutory sexual seduction of a fifteen-year-old girl based on his commission of a
sexual act other than one of four specifically described sexual acts contained in the statute. NRS 200.364, subd. 3.
2. Rape.
Adult defendant could not be convicted of statutory sexual seduction of fifteen-year-old girl where State failed to show that act was
committed with consenting person, an element of the offense; evidence clearly indicated that victim did not consent to the acts. NRS
200.364, subd. 3.
OPINION
Per Curiam:
This is an appeal from a judgement of conviction pursuant to a jury verdict of two counts
of statutory sexual seduction. Appellant contends that Count V of which he was convicted
failed to state a crime. Appellant further contends that all the elements of statutory sexual
seduction were not proven by the prosecution.
Appellant Robert Alan Slobodian was accused of sexually assaulting a fifteen-year-old
runaway girl, on or about May 3, 1987. Slobodian gave the girl a ride to his apartment
complex as a favor for some mutual friends that she was going to see. The girl went to
Slobodian's apartment to help Slobodian get some things needed to have a barbecue with their
friends. While the girl drank a wine-cooler, the two discussed the making of a movie about a
sixteen-year-old girl who had sexual relations with her stepfather.
The girl testified that she was then held in the apartment against her will for more than
seven hours. During these hours Slobodian allegedly assaulted her four separate times. The
girl testified the Slobodian removed her clothes and rubbed lubricant on her vagina,
penetrating her vagina with his finger. Slobodian then allegedly inserted a dildo into the girl's
vagina, moving it in and out. She also testified that Slobodian inserted a warm curling iron
into her vagina. Finally the girl testified that Slobodian put his penis in her mouth against her
will. She testified that all these acts were done against her will and that each time she tried to
scream or resist Slobodian would hit or choke her.
After a jury trial on four counts of sexual assault and four counts of statutory sexual
seduction, Slobodian was found not guilty of all four counts of sexual assault and two counts
of statutory sexual seduction. Slobodian was found guilty of counts V and VIII, both for
statutory sexual seduction.
[Headnote 1]
To be convicted of statutory sexual seduction
1
one must have engaged in one of four
specifically described sexual acts, namely, ordinary sexual intercourse, anal intercourse,
cunnilingus, or fellatio. Count V charges a sexual act other than the four specified in the
statute, namely, digital penetration of the girl's vagina. Why the legislature limited the crime
of sexual seduction to the four sexual acts set forth in the statute is not clear. What is clear is
that Slobodian committed none of the four and that he cannot, therefore, be convicted for
violation of this statute for digital penetration, and the Count V conviction must be vacated.
[Headnote 2]
With regard to the Count VIII conviction of sexual seduction, there is a failure to prove an
essential statutory element. There are three elements of the offense of statutory sexual
seduction: 1.
__________

1
NRS 200.364(3) provides:
3. Statutory sexual seduction means ordinary sexual intercourse, anal intercourse, cunnilingus or
fellatio committed by a person 18 years of age or older with a person under the age of 16 years.
1. Commission of one of the four sexual acts mentioned.
2. The act must be committed with a consenting person.
3. The consenting person must be under the age of 16 years.
The second listed element, with a consenting person, was not and could not have been
proven in this case. Throughout the preliminary examination and at trial, it was always the
position of the state's attorney and of the complaining witness that the girl had been raped,
that she was forcibly assaulted and forced to submit to sexual penetration. The victim testified
repeatedly that she did not consent to the acts and that when she told Slobodian no he
choked her with his hands. Absolutely no evidence was presented at trial by either side which
would tend to show that the victim consented to the acts.
NRS 200.364 clearly calls for the act to have been committed on a consenting person.
Based upon a plain reading of the statute, consent of the victim is a necessary element of the
crime of statutory sexual seduction which must be proven by the prosecution.
2
It is well
settled that in order to obtain a conviction the prosecution must prove every element of the
crime charged beyond a reasonable doubt.
__________

2
Prior to 1967, the statutory rape law (the predecessor to statutory sexual seduction) in Nevada did not call
for a consenting victim. Prior to 1967, NRS 200.360 included in the definition of rape the following:
Any person of the age of 16 years or upwards who shall have carnal knowledge of any female child
under the age of 18 years, either with or without her consent, shall be adjudged guilty of rape and
punished as before provided.
(Emphasis added.)
Traditionally statutory rape was treated as any rape and the consent of the victim was irrelevant. If the victim
was under the mandated age the act was rape regardless of consent. In 1967, the legislature adopted a specific
definition of statutory rape which included the phrase, with her consent. This language of consent was
subsequently continued in the current statute with was adopted in 1977 (consenting person).
It is presumed that the legislature believed that the language of consent did not pose a problem because if the
victim did not consent, the perpetrator would be guilty of sexual assault which contains no language of consent
and applies to any victim regardless of age. Unfortunately, a problem is created when it appears there is no
consent, but the issue is not entirely clear.
Had it not been for the described statutory change, Slobodian could have been convicted of statutory rape,
whether the girl had consented or not. Under the present statutory scheme, however, a charge of forcible
nonconsensual sexual assault is incompatible with a charge of non-forcible consensual statutory sexual
seduction. The prosecution, understandably, relied on the statement of the victim in this case and pursued the
charges on the basis of forcible rape. The state cannot pursue this course and then expect the accused to answer
to charges which are based on consent rather than forcible sexual activity.
prosecution must prove every element of the crime charged beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979), reh'g denied. 444 U.S. 890 (1980); Hass v. State,
92 Nev. 256, 548 P.2d 1367 (1976); State v. Lima, 643 P.2d 536 (Haw. 1982); State v.
Gratzer, 682 P.2d 141 (Mont. 1984); State v. Chouinard, 634 P.2d 680 (N.M. 1981).
In the case at bar the prosecution failed to produce any evidence which tended to show
consent on the part of the victim; to the contrary, the prosecution vigorously argued that the
acts were performed against the victim's will and that she did not consent in any manner.
Accordingly, we conclude that evidence of a specific element of the crime of statutory sexual
seduction was not presented. We therefore reverse the defendant's convictions under both
Count V and Count VIII.
Appellant Slobodian was convicted on two counts of statutory sexual seduction. See NRS
200.364(3); NRS 200.368. Slobodian was thirty-nine years old when he seduced a
fifteen-year-old female to engage in various sexual activities with him. The appellant's
convictions should be affirmed.
COUNT V, SEXUAL SEDUCTION
First, the majority reasons that Slobodian's conviction in Count V cannot stand because the
digital penetration alleged in that count is not one of the specifically enumerated sexual acts
in the statutory definition of sexual seduction. The provisions of NRS 200.364 state in
relevant part:
As used in NRS 200.366 to 200.368, unless the context otherwise requires:
. . . .
3. Statutory sexual seduction means ordinary sexual intercourse, anal intercourse,
cunnilingus or fellatio committed by a person 18 years of age or older with a consenting
person under the age of 16 years.
(Emphasis added.)
It is clear that our statutory sexual seduction statutes were enacted to protect adolescents
who, because of their immature minds and developing bodies, are susceptible to the sexual
abuse and advances of sophisticated adults. See NRS 200.364; NRS 200.368. The
introductory phrase in NRS 200.364, unless the context otherwise requires, literally invites
this court to interpret these statutes in a manner that effectuates their intended purpose. The
majority's opinion, however, does not do this.
The purpose of NRS 200.364(3) is substantially negated, and the introduction to this
statute is rendered absolutely meaningless unless sexual seduction is defined to include any
carnal penetration of a victim's vagina or anus. The simple logic of such a construction is
enough to provide notice of the crime. Further, this is the only definition of sexual
seduction that is legally and morally acceptable. Otherwise, individuals like Slobodian will
be able to effectuate their designs upon a willing but immature adolescent, without fear of
recourse or punishment, so long as their iniquitous behavior remains outside the confines of
the narrow definitions of sexual seduction proposed by the majority opinion.
Therefore, I must object to a construction of statutory sexual seduction that makes it
legally acceptable for a thirty-nine-year-old man to take advantage of a consenting
fifteen-year-old girl by invading her vagina or anus with any number of body appendages,
foreign objects, or mechanical devices, including a finger, a curling iron, or a dildo. This is
not the result intended by our legislature.
Slobodian has demonstrated his propensity to exploit an immature and vulnerable female
for his self-gratification. The facts, context, and circumstances surrounding Slobodian's
profane activities mandate a logical definition of sexual seduction consistent with the
intended purpose and meaning of NRS 200.364(3). The appellant must be punished for his
predatory crimes against adolescents.
COUNT VIII, SEXUAL SEDUCTION
Further, this court has repeatedly held that it is for the jury to determine the weight and
credibility assigned to conflicting testimony. See Bolden v. State, 97 Nev. 71, 624 P.2d 20
(1981); see also Stewart v. State, 94 Nev. 378, 580 P.2d 473 (1978); Porter v. State, 94 Nev.
142, 576 P.2d 275 (1978); Hankins v. State, 91 Nev. 477, 538 P.2d 167 (1975). The jury in
this case concluded that Slobodian was guilty of seducing a fifteen-year-old female to engage
in sexual activities in violation of our criminal code. Now the majority elects to overturn
Slobodian's conviction under Count VIII because the victim asserted at trial that she did not
consent to have sex with appellant. Respectfully, I disagree with the majority's position on
this issue as well.
There is sufficient evidence in the record to support the jury's conclusion that Slobodian
and the victim engaged in sexual activities. The victim testified that while she was in
Slobodian's apartment, Slobodian told her to take off her clothes. Thereafter, the victim told
the jury how Slobodian had penetrated her vagina with his finger, a dildo, and a curling iron.
with his finger, a dildo, and a curling iron. The victim also told the jury that Slobodian put his
penis into her mouth.
Once the jury concluded that the appellant and the victim had sexual relations, the only
remaining issue was consent: the victim either consented to have sex with the appellant or she
did not. The jury evaluated conflicting evidence, weighed the testimony given at trial, and
concluded that the victim was a willing participant in either all or some of the activities
described. There is substantial evidence in the record to support this conclusion beyond a
reasonable doubt: the victim was a runaway who had been living with older men before she
met Slobodian; she told the jury that Slobodian gave her $900.00 to engage in sex with him;
she also testified that she had talked for ten minutes on the telephone with an unknown man
during an interval between her sexual activities with appellant, yet she did not tell this
unknown individual she was being sexually assaulted; her sexual encounters with the
appellant took place in Slobodian's apartment over a period of eight to nine hours, while the
two drank alcohol and talked about the creation of a sexually explicit movie; the victim did
not immediately report these sexual activities to law enforcement officials, and when she was
picked up as a runaway, her allegation of forcible assault seemed to be an afterthought.
The jury watched the victim testify, heard her words and the inflections of her voice, and
were able to draw inferences from her statements, actions, and all the evidence introduced by
the State at trial. The jury weighed the victim's credibility through her words and emotional
responses, and they concluded that the victim had willingly engaged in sexual relations with
the appellant.
Again, either the victim agreed to have sex with the appellant or she was forcibly
assaulted. There is no middle ground, no other available alternatives. The jury was asked to
decide between assault and consent. They did. Their decision should be affirmed by this
court.
Accordingly, I must dissent.
__________
107 Nev. 150, 150 (1991) Edwards v. State
WILLIAM ANTHONY EDWARDS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20898
March 28, 1991 808 P.2d 528
Appeal from a judgment of conviction of being under the influence of a controlled
substance. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Defendant was convicted of being under influence of controlled substance after his
suppression motion was denied by the district court. Defendant appealed. The supreme court,
Springer, J., held that: (1) warrantless, nonemergency arrest and search of defendant's hotel
room was illegal, and (2) evidence of defendant's drug use which was discovered through
illegal arrest was inadmissible.
Reversed.
Mowbray, C. J., and Steffen, J., dissented.
David Parraguirre, Public Defender, Jane McKenna, Deputy Public Defender, Washoe
County, for Appellant.
Attorney, Gary Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Supreme court will review claims of serious constitutional issues on the merits when defendant presents adequate record.
2. Criminal Law.
Fourth amendment requires exclusion of all evidence obtained as result of warrantless, nonemergency searches of homes and hotel
rooms. U.S.C.A.Const. amend. 4.
3. Criminal Law.
Evidence of defendant's drug use was inadmissible during trial on charges of indecent exposure and being under influence of
controlled substance since evidence was obtained as result of warrantless arrest in defendant's hotel room, defendant did not consent to
search, no emergency circumstances were present and defendant never entered public place. U.S.C.A.Const. amend. 14.
4. Arrest.
Defendant did not commit gross misdemeanor in public place, so as to subject himself to warrantless arrest and warrantless search
of his hotel room, even though defendant indecently exposed himself when he opened door to police officers, where defendant
remained in hotel room at all times and was at least partially hidden behind door and, thus warrantless arrest of defendant in
nonemergency circumstance was illegal. U.S.C.A.Const. amend. 4.
OPINION
By the Court, Springer, J.:
On July 27, 1989, around 8:30 p.m., Sergeant Richard Ross and Lieutenant Timothy
Gonyo of the Washoe County Consolidated Narcotics Unit were in the office of the Six Gun
Motel in Reno.
Reno. They were talking with the manager to see if any known narcotics dealers had checked
into the motel. Moments later, and unidentified woman entered the lobby, and explained that
a gentlemen was dressed in woman's clothing and exposing himself to her and her children.
Without questioning the woman further, Sgt. Ross and Lt. Gonyo walked to Room 155. As
they did so, they saw appellant William Edwards through a window in the front of the motel
room; he was stooped over with his right hand over his crotch area. At the time, Edwards was
wearing women's undergarments: specifically, a camisole, nylon stockings, bra, garter belt,
and panties.
1
The officers further noted that Edwards remained behind the curtain, and made
no attempt to attract the attention of passers-by.
Sgt. Ross and Lt. Gonyo knocked on the door and identified themselves as sheriff's
officers. Edwards then opened the door about ten to fourteen inches, at which time the
officers noticed that Edwards' penis was exposed through a hole in the front of the panties
that he was wearing. Edwards next quickly slammed the door, and told the officers to wait
just a minute. At this point, Sgt. Ross and Lt. Gonyo forced open the door and entered the
room.
After the officers entered the room, they placed Edwards under arrest and charged him
with indecent exposure. During the handcuffing procedure, both officers noticed that
Edwards had an oily substance on his arms, hands, and wrists. The police officers also
noticed that Edwards' eyes were watery and his pupils were dilated. Lt. Gonyo told Edwards
that he (Edwards) looked like a mess. Edwards agreed. Lt. Gonyo then asked Edwards if he
had been using anything, and Edwards replied that he had, about a half hour before.
Officer Greg Curry of the Reno Police Department was called to the Six Gun Motel and
took Edwards into custody.
2
At this time, the police conducted a search of Edwards' room;
this search netted a bag of unused hypodermic needles, and one used needle with blood on the
tip.
Officer Curry then took Edwards to the Washoe County Jail, where a drug recognition test
was performed. Following this test, Officer Curry advised Edwards of his Miranda rights
and asked him {Edwards) if he had used any controlled substances.
__________

1
One of the officers later testified that these items of clothing could be clearly identified only by standing
two to three feet from the window.

2
Following the arrest (but prior to the discovery that William had been using illegal drugs), Sgt. Ross and Lt.
Gonyo turned the case over to the Reno Police Department, because as Sgt. Ross put it, Consolidated Narcotics
generally doesn't become involved in . . . crimes other than narcotics.
Officer Curry advised Edwards of his Miranda rights and asked him (Edwards) if he had used
any controlled substances. Edwards admitted that he had used methamphetamine. Officer
Curry then requested that Edwards provide a urine sample; upon testing, this sample revealed
the presence of amphetamine, methamphetamine, and marijuana.
In an information filed August 25, 1989, and an amended information filed October 30,
1989, Edwards was charged with one count of being under the influence of a controlled
substance, methamphetamine, and one count of indecent exposure. The indecent exposure
count alleged that Edwards,
did willfully and unlawfully make an open and indecent or obscene exposure of his
person to Sergeant RICHARD ROSS, . . . in that the defendant, while wearing women's
undergarments with the front of the panties cut out and with his penis and genitals
exposed, stood in front of an open door, thereby exposing himself to public view.
Prior to trial, Edwards petitioned for a writ of habeas corpus, and also moved to suppress
the evidence obtained by the police that stemmed from the search of the motel room and
subsequent investigation. Both motions were denied.
3
At trial, the jury then acquitted
Edwards on the indecent exposure count, but convicted him on the charge of being under the
influence of methamphetamine. Edwards was sentenced to three years in the Nevada State
Prison, the term to run consecutively to any sentence that Edwards was currently serving.
This appeal followed.
[Headnote 1]
Appellant's primary contention is that his arrest was made in violation of the United States
Supreme Court's holding in Payton v. New York, 445 U.S. 573 (1980).
4
In Payton, the Court
held that the fourth amendment prohibits police from making a warrantless and
nonconsensual entry into a suspect's home in order to make a routine arrest. Id. at 576. The
Payton Court then went on to hold that if police failed to obtain a warrant, then all evidence
stemming from the arrest must be excluded. Id. at 603.
__________

3
Our review of the record indicates that although the court below never issued a formal ruling on William's
motion to suppress, the district court did feel that it made such a ruling when it ruled on appellant's habeas
petition. During argument on the habeas petition, Judge Adams noted that while a motion to suppress would be
the proper vehicle to address the . . . search, . . . under whatever legal vehicle this matter [is] addressed . . . if I
concluded that the entry . . . was unlawful, then the evidence which was the result of their search would be
vulnerable to suppression.

4
As an initial matter, we note that respondent's procedural contentions are resolved by Koenig v. State, 99
Nev. 780, 672 P.2d 37 (1983), in which we held that where appellant presents an adequate record for reviewing
serious constitutional issues, this court will address such claims on the merits.
evidence stemming from the arrest must be excluded. Id. at 603. Because the police officers
in Payton had entered a private residence without a warrant (but with probable cause) to
make a routine murder arrest, the Court held that the evidence seized on entry of the premises
must be suppressed. Id.
We recently applied the Payton doctrine in Walters v. State, 106 Nev. 45, 786 P.2d 1202
(1990). In Walters, police arrested defendant in his home without a warrant, after receiving
reliable information that defendant had committed a murder. Id. at 47, 786 P.2d at 1203.
After his arrest, defendant was transported from Sandy Valley, Nevada to Barstow,
California. Id. During the course of this ride, defendant was Mirandized and then made an
incriminating statement that was subsequently used at trial. Id. We unanimously held that
because the home arrest was illegal, and the subsequent statement to police officers was the
fruit of the arrest, the statement should have been excluded. Therefore, we reversed. Id.
[Headnote 2]
The above cases make clear that the fourth amendment requires the exclusion of all
evidence obtained as the result of warrantless, non-emergency home searches. In United
States v. Diaz, 814 F.2d 454 (7th Cir.), cert. denied, 484 U.S. 857 (1987), it was made
equally clear that this rule also applies to hotel room searches. The Diaz court reasoned that
under the relevant United States Supreme Court precedent, fourth amendment protections
apply to individuals in hotel rooms as well as homes. Id. at 457-58 (citations omitted). The
court then noted that the Payton opinion did nothing to alter this basic rule that a hotel room
can be the object of fourth amendment protection as much as a home or an office. Id. at 458.
[Headnote 3]
The state attempts to distinguish these cases by arguing that Edwards, by opening his door
to police officers in the manner described above, committed a gross misdemeanor in a public
place, and was therefore subject to immediate arrest. We disagree, however, because it is
obvious from the record that Edwards remained inside the hotel room at all times and was at
least partially hidden behind the door. Thus, Edwards never left his dwelling and, therefore,
never forfeited the protections against intrusion provided by Payton and Walters.
The dissent argues at length that our decision should not be controlled by Payton and
Walters, but instead by the recent case of New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640
(1990). A comparison of Harris with the instant case, however, indicates that this case is
very easily distinguishable from Harris.
that this case is very easily distinguishable from Harris. In Harris, the Court held that
evidence discovered outside the home is admissible, even if traceable to an illegal home
arrest, so long as, prior to the entry of the home, police had probable cause to believe that the
suspect committed the crime for which he or she was being arrested. The Harris Court
reasoned that police gained no new information by virtue of the home arrest, since they
(police) already had probable cause to believe that the suspect had committed the crime for
which he was being arrested.
While the Supreme Court's logic in Harris that police gained little through the illegal
home intrusion may have been plausible in Harriswhere police already had much
information pertaining to the crime chargedsuch logic is clearly inapplicable to the instant
case. Here, police had no information of drug use prior to their entry into the hotel room, and
thus discovered a separate violation solely through an illegal arrest. For this reason, any
assertion that police received no advantage through the illegality becomes untenable.
Consequently, Harris is inapplicable.
[Headnote 4]
Having concluded that Edwards never entered a public place and that Harris is
inapplicable, we are compelled to hold that all evidence of Edward's drug use was improperly
admitted at trial. Such a result is mandated by the Payton and Walters decisions because here,
as in those cases, the challenged evidence was obtained as the result of a warrantless home
arrest; Edwards did not consent to the search (in fact he attempted to prevent police from
entering the room), and no emergency circumstances were present.
5
Indeed, the state
conceded as much at oral argument when it admitted that, assuming Edwards never entered a
public place, the arrest was clearly illegal, Therefore, all evidence traceable to this unlawful
arrest should have been suppressed.
Accordingly, we hold that the district court erred when it denied appellant's motion to
suppress the evidence seized as the result of this illegal arrest. For this reason appellant's
conviction is reversed.
Rose and Young,, JJ., concur.
Mowbray, C. J., with whom Steffen, J., joins, dissenting: Respectfully, I dissent.
__________

5
The state does not contend that exigent circumstances were present, nor could it do so credibly in light of
statements made in Welsh v. Wisconsin, 466 U.S. 740 (1984). In Welsh, the Court noted, in the context of an
arrest for driving under the influence, that application of the exigent circumstances exception in the context of a
home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense . . . has
been committed. Id. at 753.
In Payton v. New York, 445 U.S. 573 (1980), the United States Supreme Court held that
the Fourth Amendment of the United States Constitution prohibits the police from effecting a
warrantless and nonconsensual entry into a suspect's home in order to make a routine felony
arrest. Accordingly, since the police officers in Payton entered a private residence without a
warrant to make their routine arrest, the evidence seized in the premises was suppressed. Id.
at 603. The majority applies Payton to the facts of appellant Edwards' case an concludes that
his conviction for illegal drug use cannot stand. However, Payton is not applicable to the
analysis because of the unique facts of the case before us, and because of the rulings found in
United States v. Santana, 427 U.S. 38 (1976), and New York v. Harris, 495 U.S. 14, 110
S.Ct. 1640 (1990).
PROBABLE CAUSE
The threshold issue in this case asks whether there was probable cause to arrest Edwards
for indecent exposure. Edwards' arrest in his motel room was clearly based upon probable
cause: moments prior to the arrest, an unidentified woman entered the lobby of the motel and
explained that a gentleman was dressed in woman's clothing and [was] exposing himself to
her and her children. The police officers then went towards the room and saw appellant
Edwards through a window; he was wearing women's undergarments and was stooped over
with his hand over his crotch. The police knocked on Edwards' door and Edwards opened the
door, exposing his penis through a hole in the front of the undergarments. This constitutes
probable cause to believe Edwards was guilty of indecent exposure, a gross misdemeanor,
and we have previously so ruled on facts indistinguishable from the facts of this case. See
Grover v. County of Clark, 97 Nev. 104, 625 P.2d 85 (1981). The next question asks whether
the police violated Edwards' Fourth Amendment rights when they entered the motel room
without Edwards' permission.
UNITED STATES v. SANTANA
The United States Supreme Court, in United States v. Santana, 427 U.S. 38 (1976), has
ruled that a suspect may not defeat an arrest which has been set in motion in a public
place . . . by the expedient of escaping to a private place. Id. at 43. In United States v.
Santana, police went to a suspect's home in order to make a warrantless felony arrest. Upon
their arrival, the police located the suspect standing in the doorway of her home: officers
testified that had the suspect taken one step forward she would have been outside the
doorway, and had she taken one step back she would have been in the vestibule. Id. at
40.
have been outside the doorway, and had she taken one step back she would have been in the
vestibule. Id. at 40. The officers left their vehicle and approached the suspect, displaying their
badges and shouting police. The suspect retreated into her home where the police followed
to make a warrantless arrest. In a search incident to the arrest, the police seized narcotics and
marked money. Id. at 40-41.
The district court in United States v. Santana suppressed the evidence seized in the
suspect's home, concluding that even though there was probable cause to arrest the suspect,
the police were not justified in making a warrantless entry into her home to consummate the
arrest. Id. The United States Supreme Court disagreed with the district court's conclusion.
First, the United States Supreme Court cited United States v. Watson, 423 U.S. 411
(1976), for the proposition that a warrantless arrest of an individual in a public place upon
probable cause does not violate the Fourth Amendment. United States v. Santana, 427 U.S. at
42. The Court then concluded that the suspect in United States v. Santana was in a public
place as she stood at the threshold of her door because she was not in an area where she had
any expectation of privacy; the Court reasoned that [w]hat a person knowingly exposes to
the public, even in his own house or office, is not a subject of Fourth Amendment protection.'
Katz v. United States, 389 U.S. 347, 351 (1967). Id. at 42. Next, the Court asked whether the
suspect's act of retreating from a public place into a private placeher home, could thwart an
otherwise proper arrest. The Court ruled it could not under the hot pursuit doctrine.
1
Id.
Finally the Court concluded that once the suspect had been legally arrested in her home, the
search that exposed the money and drugs was justified as a search incident to the arrest. Id. at
43.
Similarly the arrest of appellant Edwards in this case was based upon probable cause, as
has already been discussed. Further, Edwards was in a public place at the time the police were
about to arrest him: he could not harbor an expectation of privacy as he exposed his genitals
in the threshold of the open doorway to his room. Id. at 42. Finally, once the police decided to
arrest Edwards, he could not evade the arrest by retreating into a private place. The police,
therefore, did not violate the strictures of the Fourth Amendment by following Edwards into
his room to consummate the arrest. Id.
with indecent exposure.
__________

1
However, the Court noted that hot pursuit should not be interpreted to mean a hue and cry in and about
[the] public streets.' United States v. Santana, 427 U.S. 38, 43 (1976). The Court concluded that [t]he fact that
the pursuit . . . ended almost as soon as it began did not render it any the less a hot pursuit' sufficient to justify
the warrantless entry into [the suspect's] house. Id. The same reasoning would apply to the warrantless arrest of
appellant Edwards.
Fourth Amendment by following Edwards into his room to consummate the arrest. Id.
with indecent exposure. During the hand-cuffing procedure, both officers noticed that
Edwards' eyes were watery and his pupils were dilated. Edwards was asked if he had used
anything and he responded that he had. Thereafter the police properly conducted a search
incident to the arrest in the motel room, netting a bag of unused hypodermic needles and one
used needle with blood on the tip. After he was taken to the station house, Edwards again
admitted to using drugs.
The facts of Edwards' case, and the rule established in United States v. Santana make it
clear that Edwards' arrest was not improper, nor was it inappropriate for the police to seize
evidence in his room incident to the arrest. Likewise, Edwards' admissions subsequent to the
arrest should not be suppressed because his arrest and the entry into his home was legal and
appropriate under the strictures of the Fourth Amendment. Accordingly, Payton has
absolutely no application to this case. The district court properly admitted the items seized in
Edwards' room, as well as his admissions and drug tests.
NEW YORK v. HARRIS
Even if the rule of United States v. Santana is ignored, Edwards' arrest was still
appropriate, and his station house admission to drug use, as well as the drug test subsequent
to that admission, were properly admitted into evidence by the district court.
The Payton ruling was clarified in New York v. Harris, where the United States Supreme
Court distinguished between an illegal search of a suspect's home, and the illegal detention of
the suspect. In New York v. Harris, the United States Supreme Court stated:
Nothing in the reasoning of [Payton] suggests that an arrest in a home without a
warrant but with probable cause somehow renders unlawful continued custody of the
suspect once he is removed from the house. There could be no valid claim here that [the
defendant] was immune from prosecution because his person was the fruit of an illegal
arrest. United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 63 L.Ed. 2d 537
(1980). Nor is there any claim that the warrantless arrest required the police to release
[the defendant] or that [the defendant] could not be immediately rearrested if
momentarily released. Because the officers had probable cause to arrest [the defendant]
for a crime, [he] was not unlawfully in custody when he was removed to the station
house, given Miranda warnings and allowed to talk.
not unlawfully in custody when he was removed to the station house, given Miranda
warnings and allowed to talk. For Fourth Amendment purposes, the legal issue is the
same as it would be had the police arrested [the defendant] on his door step, illegally
entered his home to search for evidence, and later interrogated [the defendant] at the
station house. Similarly, if the police had made a warrantless entry into [the
defendant's] home, not found him there, but arrested him on the street when he
returned, a later statement made by him after proper warnings would no doubt be
admissible.
New York v. Harris, 495 U.S. at 18, 110 S.Ct. at 1643. Under the preceding analysis, the
Court held, that where the police have probable cause to arrest a suspect, the exclusionary
rule does not bar the State's use of a statement made by the defendant outside of his home,
even though the statement is taken after an arrest made in the home in violation of [Payton].
New York v. Harris, 495 U.S. at 21, 110 S.Ct. at 1644.
After he was arrested in his motel room, and after his admission, a search of Edwards'
room netted a bag of hypodermic needles.
2
Under the rationale of Payton, and assuming
arguendo that United States v. Santana is not controlling, the district court admittedly should
have excluded the hypodermic needle evidence.
However, it is not clear whether Edwards' admission to drug use in the motel room should
have been excluded by the district court. New York v. Harris did not reach this issue.
Logically, however, applying the exclusionary rule to the first admission would make no
sense. Under the rationale used in New York v. Harris, the confession in the room would not
be the product of an illegal search of the room, but would be the result of the physical state
and appearance of Edwards' person and an arrest based upon probable cause.
3
Regardless, it
is clear that Edwards' second admission to drug use and the drug test he received at the
station house should not be excluded from evidence.
__________

2
The sequence of these facts show that Edwards' physical conditionnot the retrieval of the hypodermic
needlescaused the police to question Edwards about his drug use.

3
It is difficult to understand why this first confession would only be valid outside the room. This leads to the
untenable result that shrewd police officers who violate the strictures of Payton, can legally obtain a confession
from the suspect simply by waiting until the suspect is removed from the residence; nonetheless, dicta in New
York v. Harris would indicate that the United States Supreme Court intends the suppression of in home
interrogations in these cases. In New York v. Harris, the Court said, [e]ven though we decline to suppress
statements made outside the home following a Payton violation, the principal incentive to obey Payton still
obtains: the police know that a warrantless entry will lead to the suppression of any evidence found or statements
taken inside the home. New York v. Harris, 495 U.S. at 20, 110 S.Ct. at 1644.
Regardless, it is clear that Edwards' second admission to drug use and the drug test he
received at the station house should not be excluded from evidence. At the time of his second
admission and drug test, there is no question that Edwards was legally detained [b]ecause
the officers had probable cause to arrest [him] for a crime. . . . New York v. Harris, 495 U.S.
at 18, 110 S.Ct. at 1643. (Emphasis added.) This second admission was not the result of an
illegal search of Edwards' hotel room; rather, the facts clearly indicate that it was the result of
Edwards' physical state and police questioning related thereto. Assuming the police at the
station house were not inept, they would have questioned Edwards about drug use (as did the
two officers who first confronted Edwards in his room) because of his appearance and
actions, and regardless of any prior admission or the hypodermic needles seized in his room.
Nonetheless, the majority argues that New York v. Harris is inapplicable to this case
because Edwards was arrested for indecent exposure rather than illegal drug use. Therefore,
the majority reasons the police discovered his illegal drug use solely through an illegal
arrest. The majority then concludes that any assertion that police received no advantage
through the illegality becomes untenable. Respectfully, I disagree with this reasoning.
The facts of this case indicate that the station house admission and the discovery of
Edwards' illegal drug use did not arise from an illegal intrusion into Edwards' motel room;
rather, the drug use was discovered because of Edwards' appearance and actions. Edwards'
arrest for indecent exposure was likewise the result of his physical appearance. Thus, whether
prior to the arrest or at the station house, the police had every right to question him about his
behavior, appearance and attire, and in fact, it would have been inappropriate for the police
not to do so.
Questions regarding his physical state, appearance and behavior led to an admission of
illegal drug use while he was at the station house. Once Edwards made this admission, there
was no reason to exclude the admission from the trier of fact simply because he was initially
arrested for indecent exposure: to conclude otherwise implies that Edwards' admission of
drug use is the fruit of an illegal detention of his person at the station house; however, under
New York v. Harris, since Edwards' arrest was based upon probable cause, [t]here could be
no valid claim here that [the defendant] was immune from prosecution because his person
was the fruit of an illegal arrest. New York v. Harris, 495 U.S. at 18, 110 S.Ct. at 1643.
(Emphasis added.)
I likewise reject any contention that the police gained an advantage because the arrest was
made in Edwards' room in violation of Payton. As the New York v. Harris court reasoned, the
legal issue in this case "is the same as it would be had the police arrested [the defendant]
on his door step, illegally entered his home to search for evidence, and later interrogated
[the defendant] at the station house."
the legal issue in this case is the same as it would be had the police arrested [the defendant]
on his door step, illegally entered his home to search for evidence, and later interrogated [the
defendant] at the station house. New York v. Harris, 495 U.S. at 18, 110 S.Ct. at 1643. Had
Edwards walked into the hallway upon the initial confrontation with police, and had they
arrested him there, the result in this case would not change: Edwards' face would have
indicated drug use in the hallway as it did in the hotel room; his eyes would be no less glazed;
his behavior would be just as strange; he would still be exposing his genitals; his attire would
be the same; there would still be an oily substance on his arms. Thus, the police would have
questioned Edwards about his appearance regardless of where he was arrested, and
accordingly, there was no advantage gained by arresting Edwards in his room.
The weight of nonexcludable evidence produced at Edwards' trial overwhelmingly
supports a finding of guilt: any error that may be found in the district court's decision to admit
the hypodermic needles into evidence, or Edwards' first admission at the motel room, under a
New York v. Harris analysis, is harmless error in light of the substantial evidence supporting
his conviction. Weakland v. State, 96 Nev. 699, 615 P.2d 252 (1980).
CONCLUSION
In sum, I am convinced that the United States Supreme Court's ruling in Payton has no
application here: the police officers had probable cause to arrest Edwards, and Edwards had
no legitimate expectation of privacy when he exposed himself in the doorway of his room;
accordingly, he could not evade a legal arrest by retreating into his room under the rule set
forth in United States v. Santana. Any evidence seized after Edwards' arrest in his motel room
was properly seized incident to his arrest.
Second, even if the majority does not apply United States v. Santana to this case, the
Payton rule should not be used to exclude the bulk of the evidence submitted at Edwards' trial
because of rationale in New York v. Harris.
____________
107 Nev. 162, 162 (1991) McCord v. State
RONALD HOWARD McCORD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21001
March 28, 1991 807 P.2d 1378
Appeal from a judgment of conviction on one count of murder in the second degree with
the use of a deadly weapon. Eighth Judicial District Court, Clark County; Earle W. White, Jr.,
Judge.
Defendant was convicted of murder in second degree with use of deadly weapon following
jury trial by the district court. Defendant appealed. The supreme court held that jury
instruction concerning affirmative defense of intervening cause of death properly shifted
burden of proving elements of offense beyond reasonable doubt to defendant.
Frank J. Cremen, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and David Roger, Deputy District Attorney, Clark
Criminal Law.
Jury instruction during murder trial which shifted burden of proof, making it defendant's obligation to prove independent or
intervening cause of death beyond reasonable doubt was improper since affirmative defense instruction for intervening cause negated
element of murder.
OPINION
Per Curiam:
On November 12, 1988, appellant Ronald McCord went to the Vegas Lounge in Las
Vegas where he struck up a conversation with a woman at the bar. Donald Billman objected
to the conversation and told McCord, You can't talk to her that way. After further words
were exchanged, McCord pulled a pistol from under his coat and shot Billman in the
forehead. Billman was taken to the hospital where the wound was treated. His condition
improved to the point where, approximately one month after being shot, he was well enough
to be transferred to a rehabilitation unit. In late December, Billman experienced fever and
seizures. X-rays showed an infection in his left lung. He died of pneumonia on December 31,
1988.
Following Billman's death, the complaint against appellant was amended from attempted
murder to murder. At trial, the surgeon who operated on Billman following the shooting
testified that the pneumonia was a result of Billman's weakened condition because of the
shooting. The pathologist who performed the autopsy offered the same opinion.
At trial, appellant maintained that Billman's death was due to a superseding or intervening
cause. The State's medical witnesses were cross-examined at length in an effort to establish
that Billman's pneumonia and resulting death were not attributable to the gunshot wound. The
coroner admitted that Billman's pneumonia was caused by bacteria, not by a gunshot wound.
However, he also stated that the pneumonia would not have developed if Billman's physical
condition had not been weakened by the gunshot wound. There was also evidence of a
staphylococcus bacteria outbreak in the hospital at the time of Billman's death.
The jury found McCord guilty of second degree murder. He was sentenced to two life
terms with the possibility of parole. McCord raises several issues on appeal, only one of
which has merit. We now turn to this claim.
Appellant requested that the following instruction be given to the jury:
The state must prove beyond a reasonable doubt that the defendant's act was the
proximate cause of death. The proximate cause of death is that cause which in a natural
and unbroken sequence produces the death. In this case the gunshot wound did not
proximately cause the death if it is not the origin of the intervening pneumonia, but
merely influenced the course of the intervening cause.
The court refused to give the instruction because it believed the matter was adequately
covered by instruction No. 29, submitted earlier by the State. Instruction No. 29 stated:
If you are satisfied beyond a reasonable doubt that an independent intervening cause
of death did break the chain of causation you may find the defendant guilty of
Attempted Murder With or Without the Use of a Deadly Weapon, or Attempted
Voluntary Manslaughter With or Without the Use of a Deadly Weapon, if the evidence
is sufficient to establish his guilt of that crime.
Appellant argues that instruction No. 29 shifted the burden of proof, making it his
obligation to prove an independent or intervening cause of death beyond a reasonable doubt.
We agree with appellant's assertion. The State may not impose a beyond a reasonable doubt
burden to prove an affirmative defense which negates an element of the offense.
negates an element of the offense. Kelso v. State, 95 Nev. 37, 42, 588 P.2d 1038, 1039
(1979). Instruction No. 29 imposed such a burden. We are therefore compelled to reverse
appellant's conviction and we remand for a new trial.
____________
107 Nev. 164, 164 (1991) Brown v. State
STANLEY WAYNE BROWN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21004
March 28, 1991 807 P.2d 1379
Appeal from amended judgment of conviction upon jury verdict which was reinstated
following an evidentiary hearing upon order of remand from this court. Third Judicial District
Court, Churchill County; Mario G. Recanzone, Judge.
Defendant was convicted in the district court of two counts of sexual assault and one count
of attempted sexual assault. After remand, jury verdict was reinstated, and defendant
appealed. The supreme court, Steffen, J., held that defendant made insufficient showing of
falsity of victim's prior allegations of sexual misconduct to establish relevance of prior
allegations.
Affirmed.
Rose and Springer, JJ., dissented.
Hager & Mausert, Reno, for Appellant
Frankie Sue Del Papa, Attorney General, Carson City; Kevin Pasquale, District Attorney,
Paul Drakulich, Deputy District Attorney, and Robert V. Bogan, Deputy District Attorney,
Churchill County, for Respondent.
1. Criminal Law.
Proof by preponderance of evidence is not standard that is satisfied merely by force of greatest number of witnesses; standard
should lead trier of fact to find existence of contested fact is more probable than its nonexistence.
2. Witnesses.
Proof of falsity of alleged sexual misconduct, victim's prior accusations of sexual abuse or assault must be something more than
bare, unsupported opinion that victim is lying about events in question; purported false allegations require some independent factual
basis of falsity in order to be admissible in evidence.
107 Nev. 164, 165 (1991) Brown v. State
3. Witnesses.
Through in camera procedure of Miller hearing, relating to admissibility of allegedly false accusations of prior sexual abuse or
assaults attributable to alleged victim of sexual misconduct, trial judge must tread delicate balance between defendant's constitutional
right to fair trial, and State's policy of encouraging rape victims to testify without harassment and embarrassment stemming from
public disclosure of irrelevant evidence concerning their private sexual experiences. NRS 50.090.
4. Witnesses.
Defendant charged with sexual assault failed to present sufficient proof of falsity to establish relevance of other allegations of
sexual assault or abuse made by victim.
5. Witnesses.
Defendant was not entitled to cross-examine alleged sexual assault victim regarding her numerous prior allegations of sexual
assault, absent any showing that those allegations were false, inasmuch as evidence relating to allegations was irrelevant without
showing of falsity.
OPINION
By the Court, Steffen, J.:
Appellant Stanley Wayne Brown was convicted by a jury of two counts of sexual assault
and one count of attempted sexual assault. By amended judgment, he was consecutively
sentenced to two life terms on the sexual assault counts and a ten-year term on the attempt
count. As a result of Brown's first direct appeal to this court, we issued an Order of Remand
on September 6, 1989 which vacated Brown's judgment of conviction and directed the district
court to hold a hearing pursuant to Miller v. State, 105 Nev. 497, 779 P.2d 87 (1989). After
holding the Miller hearing, the district court reinstated the jury verdict, an option accorded the
court under our Order of Remand. Our review of the record persuades us that the district
court was correct in its rulings concerning the Miller hearing. We therefore affirm the district
court's reinstatement of the amended judgment.
During Brown's trial, the seventeen-year-old complaining witness testified that her uncle,
Brown, repeatedly assaulted her sexually over an eight-year period. Several defense witnesses
testified that the victim was a habitual liar, but the trial judge excluded testimony concerning
the nature of her alleged falsehoods on the ground that it constituted allegations of sexual
conduct. In the first appeal, this court was concerned that the result below may have been
unreliable and that Brown may have been denied a fair trial. Moreover, after Brown's
convictions, this court decided Millera decision that had direct application to the
proceedings in the instant case.
107 Nev. 164, 166 (1991) Brown v. State
Under Miller, we concluded that evidence of false accusations of prior sexual abuse or
assaults attributable to a complaining witness do not constitute previous sexual conduct for
purposes of Nevada's rape shield law, NRS 50.090. Miller, 105 Nev. at 501, 779 P.2d at 89.
We also determined that complaining witnesses would be subject to cross-examination
concerning such prior false accusations providing defendants were able to prove by a
preponderance of the evidence, in a hearing outside the presence of the jury, that (1) the
accusation or accusations were in fact made; (2) that the accusation or accusations were in
fact false; and (3) that the evidence is more probative than prejudicial. Id. at 502, 779 P.2d at
90.
In our Order of Remand, the trial judge was instructed to conduct a Miller hearing to
determine by a preponderance of the evidence whether the complaining witness had made
prior false accusations of sexual assault or molestation. The hearing was to involve
consideration of the testimony of the five defense witnesses who were prepared to testify at
trial. After the Miller hearing, the trial judge concluded that although there was evidence that
the complaining witness had, in fact, made other allegations of sexual assaults and
molestations, Brown did not meet his burden of proving that such allegations were, in fact,
false.
[Headnote 1]
The preponderance of the evidence test is not mechanistically satisfied according to
which side has produced the greater quantum, without regard to its effect in convincing [the
trier of fact's] mind of the truth of the proposition asserted. In re Winship, 397 U.S. 358,
367-68 (1970). The preponderance of the evidence burden does not mean simple volume of
evidence or number of witnesses. E. Cleary, McCormick on Evidence 339 (3rd ed. 1984).
In other words, proof by a preponderance of the evidence is not a standard that is satisfied
merely by force of the greatest number of witnesses. The standard of proof should lead the
trier of fact to find that the existence of the contested fact is more probable than its
nonexistence. Id.
[Headnote 2]
Proof of falsity must be something more than a bare, unsupported opinion that the
complaining witness is lying about certain events. Purported false allegations require some
independent factual basis of falsity in order to be admissible in evidence.
1
[Headnotes 3, 4]
__________

1
See, e.g., State v. Hutchinson, 688 P.2d 209, 213 (Ariz.Ct.App. 1984) (written offer of proof lacked
sufficient facts to show that prior rape charge was unsubstantiated); State v. Anderson, 686 P.2d 193, 198-201
(Mont.
107 Nev. 164, 167 (1991) Brown v. State
[Headnotes 3, 4]
The trial judge did not simply resolve an issue of witness credibility, but in effect, albeit
after the fact, decided the probity of the evidence compared to its tendency to divert the trial
and confuse the jury. Perry v. Rushen, 713 F.2d 1447, 1455 (9th Cir. 1983), cert. denied,
469 U.S. 838 (1984). The proffered testimony did not prove falsity and was therefore
irrelevant. The offers of proof relating to other witnesses waiting in the hall to testify
indicated that the witnesses' statements were merely repetitive and of the same irrelevant
nature as that of the other witnesses because of their insufficiency under the Miller standard.
The due process right of an accused during a criminal trial is the right to a fair
opportunity to defend against the State's accusations. Chambers v. Mississippi, 410 U.S.
284, 294 (1973). Through the in camera procedure of the Miller hearing, the trial judge must
tread a delicate balance between the defendant's constitutional rights to a fair trial, and the
State's policy of encouraging rape victims to testify without harassment and embarrassment
stemming from public disclosure of irrelevant evidence concerning their private sexual
experiences.
Although Chambers addresses assurances of a defendant's due process right to a fair trial,
Brown, in emphasizing that aspect of Chambers, overlooks the important caveat in the
opinion stating that [i]n the exercise of this right, the accused, as is required of the State,
must comply with established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and innocence. Chambers, 410 U.S. at
302. The defendant's right to present witnesses in his own defense is subject to the rule of
relevance and does not require that the defendant be permitted to present every piece of
evidence he wishes . . . . State v. Cassidy, 489 A.2d 386, 391 (Conn.App.Ct. 1985).
The trial judge correctly ruled that the evidence presented at the Miller hearing was
irrelevant because its probity was unpersuasive under the three Miller conditions.2 The
testimony of the witnesses did not satisfy the requirement of proof of falsity.
__________
1984) (dismissal of charges does not prove falsity especially where victim's mother vehemently insisted her
daughter not experience the rigors of trial); People v. Alexander, 452 N.E.2d 591 (Ill.App.Ct. 1983) (victim's
prior rape complaints were inadmissible where the defendant was unable to show the complaints were false);
Commonwealth v. Bohannon, 434, N.E.2d 163, 173 (Mass. 1982) (hospital records offered to prove prior false
allegations of rape contained unsupported opinions by experts and unreliable hearsay); State v. Demos, 619 P.2d
968, 969-70 (Wash. 1980) (inactive status of rape file because police could not locate the victim proves nothing
about the truth or falsity of the original charges); People v. Vaughn, 371 N.E.2d 1248, 1251 (Ill.App.Ct. 1978)
(evidence did not prove propensity to falsely cry rape without proof that the complaining witness had filed
previous rape charges).
107 Nev. 164, 168 (1991) Brown v. State
the Miller hearing was irrelevant because its probity was unpersuasive under the three Miller
conditions.
2
The testimony of the witnesses did not satisfy the requirement of proof of
falsity. The trial court thus appropriately ruled that the requisites of Miller had not been met
and that the testimony of the Miller defense witnesses would not be relevant at trial. Such
determinations of relevancy are within the discretion of the trial court. State v. Demos, 619
P.2d 968, 970 (Wash. 1980). A minimal threshold of relevancy is a prerequisite to invoking
the constitutional standard. People v. Hackett, 365 N.W.2d 120, 127 (1985).
An in camera hearing assures the defendant that the rules of evidence will not be applied
in a mechanistic, unconstitutionally arbitrary fashion which might ultimately defeat the ends
of justice if the evidence were material.
3
See Chambers, 410 U.S. at 302. At the same time,
the procedural requirement for an in camera presentation of evidence of false allegations of
rape or molestation is deferential to the broader state policy protecting alleged rape victims in
open court from unnecessary indignities and needless probing into their respective sexual
histories. Summit v. State, 101 Nev. 159, 161, 697 P.2d 1374, 1375 (1985); State v. Lemon,
456 A.2d 261, 264 (R.I. 1983).
[Headnote 5]
Brown also contends that he was not afforded a fair opportunity to cross-examine the
complaining witness relative to her numerous prior allegations of sexual assault.
Cross-examination is a substantial right of the defendant and the principal means by which
the believability of a witness and the truth of his testimony are tested. Davis v. Alaska, 415
U.S. 308, 316 (1974). Nevertheless, a defendant's Sixth Amendment rights are subject to the
same evidentiary rules as all other evidence. The threshold question for the admissibility of
evidence is relevancy. State v. Blue, 592 P.2d 879, 901 (Kan. 1979) (emphasis in text); see
also, People v. Cornes, 399 N.E.2d 1346, 1352 (Ill.App.Ct. 1980) {right to cross-examine
witnesses does not extend to matters which are irrelevant and have little probative
value).
__________

2
See also, Hughes v. Raines, 641 F.2d 790, 793 (9th Cir. 1981) (the Sixth Amendment does not prevent the
trial court from excluding questions into extraneous issues that have little, if any, probative value); People v.
McKenna, 585 P.2d 275, 279 (Colo. 1978) (there is no constitutional right to introduce irrelevant and highly
inflammatory evidence).

3
In Covington v. State, 703 P.2d 436, 442 (Alaska Ct.App. 1985), the court stated that
A majority of the courts which have considered the issue permit such evidence only if the defendant
makes a showing out of the presence of the jury that the witness' prior allegations of sexual assault were
false, as, for example, where the charges somehow had been disproved or where the witness had
conceded their falsity.
(Citations omitted.)
107 Nev. 164, 169 (1991) Brown v. State
(right to cross-examine witnesses does not extend to matters which are irrelevant and have
little probative value).
An examination of the record also reveals that Brown availed himself of his right to
cross-examine the complaining witness only when she testified at the preliminary hearing.
Although asked by the court whether he wished to cross-examine the complaining witness
both when she testified in camera and in open court, Brown declined to do so.
For the reasons stated above, we conclude that the district court properly determined, after
the Miller hearing, that Brown did not carry his burden and that the original judgment entered
against Brown pursuant to the jury's verdict be reinstated. The judgment is affirmed.
Mowbray, C. J., and Young, J., concur.
Rose, J., dissenting, with whom Springer, J., agrees:
I believe the cumulative events that occurred in this case and the rulings of the district
court have prevented the appellant Stanley Brown (Brown) from receiving a fair trial. At trial,
Brown was not permitted to present evidence of the complaining witness's propensity to make
false accusations of sexual assault. At the Miller hearing subsequent to trial, the district court
found that the allegations of sexual assault by others were not proven to be false and denied
Brown a new trial. From the evidence presented, this finding was erroneous and a new trial
should have been granted.
The complaining witness was Brown's niece, Janet Rains. However, there was no blood
relationship between the victim and appellant because Brown had been adopted by Rains'
grandparents. At the time of the alleged sexual assaults, Brown was 21 and Rains was five
years younger.
The victim's account of the two sexual assaults and one attempted assault are unusual.
Rains testified that on November 21, 1986, Brown asked her to accompany him to a movie
and dinner. After Rains' mother agreed, the pair left Rains' house. Rains claimed that instead
of going to a movie, Brown took her to a party and sexually assaulted her thereafter. Brown
denies this charge. Rains returned to her home without any visible signs of having been
assaulted and made no mention of the alleged incident.
On November 26, 1986, Rains claims that Brown entered her home, proceeded to her
bedroom and began to threaten her with an unloaded shotgun. She claims that Brown pushed
her around with the butt of the gun and then ordered her to pull her pants down. In response,
she pulled her pants down to her knees. At that moment, the phone rang and Rains' mother
came home.
107 Nev. 164, 170 (1991) Brown v. State
that moment, the phone rang and Rains' mother came home. Brown ran out of Rains' room,
Rains pulled up her pants and her mother came into the house. Brown also denied this
allegation and no complaint was made by Rains at the time.
On the night of December 4, 1986, Rains testified that she was in her bedroom asleep. She
was awakened by a knock on her window and discovered it was Brown, who apparently
needed some clothes. Rains let Brown in the house and then she claims that he sexually
assaulted her. She claims that she tried to scream, but couldn't. She testified, whenever I
would go to scream, I can't scream. I don't have that voice when I am scared. Rains
maintained that Brown threatened to injure her if she told anyone. Brown also denied this
charge and no immediate complaint was made by Rains.
About a month later, Rains told her mother about the assaults. She claimed that she waited
that long because she was not sure how her mother would react.
At trial, Brown's attorney wanted to present numerous witnesses to establish that Rains
had made many false accusations of sexual assault against other men. Rather than
cross-examine Rains about these incidents, Brown's attorney attempted to call witnesses to
testify to these other false accusations. The district court precluded Brown from introducing
these witnesses based on NRS 50.085(3), the rape shield law. Brown was permitted to call
five witnesses who testified that Rains' reputation for truth and veracity was bad. The jury
found Brown guilty of the two sexual assaults and one attempted sexual assault and the court
then sentenced Brown to the maximum possible sentence, two life sentences on the sexual
assaults and ten years on the attempted sexual assault, all to run consecutive.
When appealed to this court, we remanded the case back to the district court for a hearing
to determine whether Rains had made prior false sexual assault and molestation accusations.
In doing this, we stated:
Given Miller and the facts and circumstances of this case, we are concerned that the
result below may be unreliable and that Brown may have been denied a fair trial.
Therefore, we elect to vacate the judgment below and remand this case to the district
court for further consideration. Specifically, on remand, the district court shall hold a
Miller hearing to determine, by a preponderance of the evidence, whether the
complaining witness made prior false sexual assault and molestation accusations. In the
event that fabrication is established, the district court shall grant Brown a new trial.
Assuming falsity is not shown, the original judgment shall be reinstated.
107 Nev. 164, 171 (1991) Brown v. State
On remand, the district court held a Miller hearing as we had directed, but refused to hear
any witnesses Brown had not tried to offer at trial. This precluded five witnesses who were
present and prepared to testify. Such a restriction was not imposed by this court and I see no
good reason why these additional witnesses should have been precluded from testifying at a
hearing premised on a search for truth.
At the Miller hearing, Brown was permitted to call three witnesses who testified about
Rains making false allegations of sexual assault. The testimony of these witnesses was
compelling and there is no question in my mind that they established that Rains had made
such false statements. The first witness was a Mr. Sperlak who currently lives in Denver but
had met Rains when he was serving in the Navy near Fallon. He dated her for about one
month. Sperlak testified that Rains told him that her father had raped her and that he used to
beat her. She also accused her ex-boyfriend of having raped her. To establish the falsity of
these two charges, Sperlak testified that he met Rains' former boyfriend the following day and
was told by him that no such rape had occurred. Sperlak confronted Rains with this fact and
she just looked at the ground like shelike she was caught in a lie. Sperlak also described
confronting Rains about the allegations made against her father when he observed her writing
a letter to him. Again, Rains said nothing and again reacted as if she had been caught in a lie.
Brown also called a Ms. Sprinkle. She testified that she lived in Fallon for approximately
seven years and had attended school with Rains. Sprinkle stated that Rains told her that she
had been raped by both Brown and by Darren Summerville. Sprinkle testified that Rains did
not seem at all upset about the alleged rape by Mr. Summerville and that she did not believe
her because Rains had repeatedly lied to her about other matters. Sprinkle also testified that
Rains lied when she said she had had sexual relations with a Johnny Pereira and had had a
baby resulting from that activity. However, Sprinkle asked Pereira about this and he
responded that he had never even had sex with her.
Another witness called by Brown was Frankie Sue Aja Jones. Ms. Jones testified that
Rains accused her fiance, Roger Gobel, of raping her. However, Jones said that Rains did not
seem to be at all upset about this supposed rape, and that when she came home the evening of
the alleged event, she was happy and made no mention of the alleged sexual assault. The
prosecution moved to strike Ms. Jones' testimony relative to Roger Gobel because Rains
made these accusations after Brown's trial. The district court granted his motion.
107 Nev. 164, 172 (1991) Brown v. State
At the conclusion of the Miller hearing, the district court confirmed Brown's convictions,
finding that it was not established that Rains had made false accusations. With regard to the
testimony of Mr. Sperlak and Ms. Sprinkle, the court found that neither established that the
accusations were false. However, I believe the only reasonable inference that can be drawn
from the witnesses' testimony and the reaction of Rains is that the allegations were shown to
be false by a preponderance of the evidence. It is also reasonable to assume that Rains' father,
Summerville, Pereira, and Gobel would not admit to sexually assaulting Rains if called to the
stand. Since Brown would receive no benefit of the doubt from the district court, Brown's
counsel should have attempted to call these additional witnesses, to make certain the falsity
was proved. However, even without their testimony, every reasonable inference is that all of
Rains' accusations of sexual assault or illicit sex were false.
This was a close case that hinged upon the credibility of the complaining witness and
Brown. The facts of the alleged assault are not compelling. At trial, a number of witnesses
testified that Rains had a poor reputation for truth and veracity. If the jury had also heard that
she had falsely accused many other men of sexual assault, the result may have been in
Brown's favor.
It was also error for the district court, at the Miller hearing, to preclude additional
witnesses from testifying about allegations of sexual assault which Rains fabricated after the
trial here in question. While our order of remand did direct the district court to hear evidence
concerning the prior false allegations, we were not aware of any others. The evidence of false
accusations is not admitted to establish anything about the complaining witness's sexual
conduct, but rather to attack her truth and veracity by showing her propensity to make false
accusations of sexual assault. Evidence of a poor reputation for truth and veracity does not
become more or less prejudicial because the events which imparted this knowledge to the
testifying witness happened after the alleged criminal conduct. See 81 Am.Jur.2d Witnesses to
Worker's Compensation, 565 (1976); Fisher v. Conway, 21 Kan. 18 (1878). Therefore, the
district court should have permitted witnesses to describe false accusations of sexual assault
which Rains made after the trial. This evidence should have been received at the Miller
hearing whether it came from newly discovered witnesses, or from a trial witness like Ms.
Jones who had new probative information.
Brown established that Rains had made false accusations of sexual assault and illicit sex
against a number of men and this should have mandated a new trial so that this evidence
could be presented to a jury. The district court consistently and assertively ruled against
Brown, first at the trial by prohibiting the testimony of false accusations, then refusing to
find that the false accusations were established by a preponderance of the evidence at
the Miller hearing, and finally, in sentencing Brown to a very lengthy penalty.
107 Nev. 164, 173 (1991) Brown v. State
ruled against Brown, first at the trial by prohibiting the testimony of false accusations, then
refusing to find that the false accusations were established by a preponderance of the evidence
at the Miller hearing, and finally, in sentencing Brown to a very lengthy penalty. In reviewing
this case in its totality, I consider the jury verdicts unreliable because the jury did not hear all
of the relevant evidence. Therefore, I would reverse and remand for a new trial.
____________
107 Nev. 173, 173 (1991) Keystone Realty v. Osterhus
KEYSTONE REALTY, Appellant, v. GLENN OSTERHUS and LAVERNE OSTERHUS,
Respondents.
No. 21275
March 28, 1991 807 P.2d 1385
Appeal from a judgment entered upon a jury verdict in favor of the respondents. Second
Judicial District Court, Washoe County; Peter I. Breen, Judge.
Purchasers of lot and home brought action against real estate agency and others for
damages sustained in relation to purchase. The district court entered judgment on jury verdict
in favor of purchasers, and agency appealed. The supreme court held that: (1) substantial
evidence supported determination that agency impliedly agreed to act as purchasers' agent on
purchase of lot and home; (2) substantial evidence supported finding that agency was
negligent in failing to ascertain who had title to lot before representing third party as seller
and in advising purchasers to pay $50,000 directly to person designated as seller rather than
through escrow account; (3) purchasers were not entitled to recover as damages amounts paid
for real estate commissions; and (4) prejudgment interest started to accrue from date damages
were actually sustained, rather than from date complaint was filed or judgment entered.
Affirmed in part, reversed in part, and remanded with instructions.
Jack I. McAuliffe and Michael T. McAuliffe, Reno, for Appellant.
Stephens, Knight & Edwards, Reno, for Respondents.
1. Principal and Agent.
Agency agreement can be either express or implied in fact.
2. Brokers.
Interrelated transactions of parties, along with representations and advice given by real estate agent's employee, provided
substantial evidence to support conclusion that real estate agency impliedly agreed to act as purchasers' agent in their purchase of lot
and home in development.
3. Brokers.
Substantial evidence supported finding that real estate agency acted negligently toward purchasers of lot and home, for whom
agency impliedly agreed to act as agent, in failing to ascertain who had title to lot before representing that specific person was seller
and in advising purchasers to pay $50,000 directly to that person rather than through escrow account.
4. Brokers.
Purchasers of lot and homes, having established real estate agency's negligence in actions taken as implied agent, were not entitled
to recover amount purchasers paid third party to cover real estate commission real estate agency was to receive for selling lot and home
or amount of real estate commission paid to real estate agency for sale of their former home, where there was nothing in record to
support conclusion that real estate agency, through some act or omission, caused purchasers to make payment to third party, or to
indicate why purchasers should be relieved of the contractual obligation to pay commission.
5. Interest.
Prejudgment interest on purchasers' damage ward from real estate agency started to accrue on date that damages were actually
sustained, and not on date complaint was filed or judgment entered; thus, district court erred when it awarded from commencement of
lawsuit prejudgment interest for back taxes and outstanding utility bills paid and for interest payments paid after commencement of
lawsuit.
6. Interest.
Purchasers were not entitled to receive prejudgment interest from real estate agency on damages encompassed by loan purchasers
secured to satisfy debt owed on property, where jury already awarded purchasers a sum for interest paid on loan.
OPINION
Per Curiam:
In this appeal, the court is asked to consider a dispute between a real estate agency and a
married couple who purchased a residential building lot for the construction of a custom
home. After a jury trial, a $74,201.78 judgment was entered against the real estate agency.
For the following reasons we affirm in part and reverse in part.
THE FACTS
On February 9, 1985, the respondents, Glenn and LaVerne Osterhus, saw a newspaper
advertisement for the sale of residential building lots in a subdivision called the Northwood
Estates.
The Osterhuses visited a model home in this subdivision where they met Lee Drace, a real
estate agent employed by Keystone Realty. Keystone Realty, in turn, had been hired by M. L.
Michaelsen to sell lots and homes in the subdivision.
Mr. Drace showed a building lot to the Osterhuses and then escorted the couple a few
hundred feet to Jon Michaelsen, M. L. Michaelsen's son. Drace told the Osterhuses that
Michaelsen owned the property, and the Osterhuses signed an offer and acceptance
agreement executed by Jon Michaelsen as the seller, wherein the Osterhuses agreed to buy the
lot and a custom home for $160,000.00.
1

Thereafter, on March 8, 1985, Jon Michaelsen, Lee Drace, and Mr. and Mrs. Osterhus
gathered at the Osterhus' home on Stephanie Way, and a second offer and acceptance
agreement was executed. This second agreement contained the following clause:
Purchaser to pay 50,000 to builder 8 Mar 85 to pay for lot.
Remainder of purchase price to be paid in cash @ closing[.]
An escrow account was in place for the collection of funds for the Northwood Estates
purchase; nonetheless, immediately after the March 8, 1985 offer and acceptance agreement
was signed, Mrs. Osterhus asked Lee Drace who should receive the $50,000.00 specified in
that agreement. Lee Drace told Mrs. Osterhus to pay this amount to Jon Michaelsen, and Mrs.
Osterhus complied.
The March 8, 1985 offer and acceptance agreement also made the purchase of the
Northwood Estates lot and custom home contingent upon the sale of the Osterhus' Stephanie
Way residence, and Lee Drace agreed to sell this home for Mr. and Mrs. Osterhus. At no time
did Drace indicate that he was not the Osterhus' agent on the purchase of the lot and custom
home in the Northwood Estates subdivision.
Thereafter, either on March 8, 1985, or near to that time, the Osterhuses began to ask Lee
Drace when they would receive the deed to their new lot. Generally, when questioned, Drace
told the Osterhuses he would see that Jon Michaelsen delivered the deed.
Construction on the Northwood Estates home commenced in late August, 1985, and
terminated approximately two months later, in October. The Osterhuses moved into their new
home, but they still had not received the deed to the lot underneath the home.
__________

1
Record title to this lot was held by M. L. Michaelsen and Bedie Michaelsen and the lot was encumbered by
$48,500.00 in debt obligations owed to Pioneer Citizen's Bank and The Lloyd Gotchy Trust.
Then, in November, 1985, Jon Michaelsen asked the Osterhuses to give a check for
$9,600.00 to cover Keystone Realty's real estate commission on the Northwood Estates
property. Mrs. Osterhus gave Jon Michaelsen a check for this amount; she had already paid
Keystone Realty a commission of $4,500.00 for selling the home on Stephanie Way.
In June, 1986, the Osterhuses discovered that title to the Northwood Estates lot remained
in the names of M. L. and Bedie Michaelsen, and that the property was encumbered by
$48,500.00 in obligations owed to Pioneer Citizen's Bank and The Lloyd Gotchy Trust. The
lot was also encumbered by a $2,677.00 tax obligation and a $457.27 power bill lien.
On July 30, 1986, the Osterhuses filed a complaint in the district court naming, among
others, Keystone Realty, Jon Michaelsen, M. L. Michaelsen and Bedie Michaelsen as
defendants. In December 1986, title to the subject property was transferred from M. L.
Michaelsen and Bedie Michaelsen to Jon Michaelsen by a recorded quitclaim deed.
Thereafter, Bedie Michaelsen died, and Jon and M. L. Michaelsen declared bankruptcy.
The bankruptcy trustee then deeded the lot to the Osterhuses; however, before they could
acquire the deed to the lot, the Osterhuses had to secure a loan for $48,500.00 to satisfy the
debt owed to Pioneer Citizen's Bank and The Lloyd Gotchy Trust.
The Osterhuses pursued their lawsuit against Keystone Realty, and at the conclusion of a
jury trial were awarded $75,201.78 in damages. Keystone Realty filed a motion to vacate, or
in the alternative, to amend the judgment. The district court denied the motion and, thereafter,
awarded prejudgment interest on the entire damage award from the commencement of the
lawsuit. This appeal followed.
THE STANDARD OF REVIEW
In general, the findings of the trier of fact will be affirmed on appeal if the findings are
based upon substantial evidence in the record. NRCP 52(a). See also Ivory Ranch, Inc. v.
Quinn River Ranch, Inc., 101 Nev. 471, 705 P.2d 673 (1985). 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, 729 P.2d 497, 498 (1986) (quoting
Richardson v. Perales, 402 U.S. 389 (1971)).
LIABILITY
[Headnotes 1-3]
First, Keystone Realty contends there was insufficient evidence produced at the trial to
support the jury's verdict against them.
produced at the trial to support the jury's verdict against them. We disagree.
An agency agreement can be either express or implied in fact. See H.-H.-M. Safe Co. v.
Balliet, 38 Nev. 164, 145 P. 941 (1914). It is uncontroverted that Keystone Realty did not
expressly agree to act as the Osterhus' agent on the purchase of the lot and custom home in
the Northwood Estates subdivision; however, whether these parties impliedly entered into
such an agency agreement is a question of fact for the trier of fact. Northern Nev. Mobile
Home v. Penrod, 96 Nev. 395, 397, 610 P.2d 724, 726 (1980). After reviewing the record, we
conclude that the interrelated transactions of the parties, along with the representations and
advice given by Lee Drace, constitute substantial evidence to support the conclusion that
Keystone Realty impliedly agreed to act as the Osterhus' agent in their purchase of the
Northwood Estates lot and home.
We likewise find substantial evidence to support a finding that Keystone Realty was
negligent in these transactions: first, Keystone Realty had a duty to properly ascertain who
had title to the lot before representing Jon Michaelsen was the seller; second, Lee Drace
improperly advised the Osterhuses to pay $50,000.00 directly to Jon Michaelsen rather than
through the escrow account. Accordingly, we affirm on the issue of liability.
THE JURY'S DAMAGE AWARD
[Headnote 4]
The Osterhuses received $74,201.78 in damages including damages for the following: (1)
$48,500.00 to compensate the Osterhuses for the loan they secured to satisfy the debt owed to
Pioneer Citizen's Bank and The Lloyd Gotchy Trust; (2) $8,377.51 for interest paid on the
$48,500.00 loan; (3) $2,677.00 for back taxes on the lot; (4) $457.27 for the power bill lien
on the lot; (5) $9,600.00 for the amount the Osterhuses paid Jon Michaelsen to cover the real
estate commission Keystone Realty was to receive for selling the lot and home in the
Northwood Estates subdivision; and finally, (6) $4,500.00 for the real estate commission paid
to Keystone Realty for the sale of the home on Stephanie Way. Keystone Realty asserts the
damages the Osterhuses received were excessive. We agree.
There is nothing in the record to support a conclusion that Keystone Realty, through some
act or omission, caused the Osterhuses to pay $9,600.00 to Jon Michaelsen for their real
estate commission on the Northwood Estates properties. Further, there is nothing in the
record to indicate why the Osterhuses should be relieved of their contractual obligation to pay
the $4,500 real estate commission Keystone Realty earned by selling the home on
Stephanie Way.
$4,500 real estate commission Keystone Realty earned by selling the home on Stephanie
Way. Therefore, the Osterhuses were not entitled to receive damages for the amounts they
paid for these real estate commissions. We affirm the remainder of the jury's damage award,
including the award of $8,377.51 for interest paid on the $48,500.00 loan.
PREJUDGMENT INTEREST
[Headnotes 5, 6]
Prejudgment interest on the Osterhus' damage award started to accrue from the date the
damages were actually sustained, not from the date the complaint was filed or the judgment
entered. LTR Stage Lines v. Gray Line Tours, 106 Nev. 283, 289, 792 P.2d 386, 390 (1990).
The Osterhuses did not pay the back taxes and outstanding utility bills on the lot until
September of 1988. Further, the interest payments made by the Osterhuses on the $48,500.00
loan amount accrued on a monthly basis after the commencement of the lawsuit. The district
court erred when it awarded prejudgment interest from the commencement of the lawsuit for
these damages.
Further, the Osterhuses should not receive prejudgment interest on the damages
encompassed by the $48,500.00 loan. As previously discussed, the jury had already awarded
the Osterhuses $8,377.51 for the interest paid on this loan, and the Osterhuses are not entitled
to a double recovery of this interest. Accordingly, we remand this matter back to the district
court for a calculation of prejudgment interest consistent with this opinion.
_____________
107 Nev. 178, 178 (1991) Riggins v. State
DAVID E. RIGGINS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19873
March 28, 1991 808 P.2d 535
Appeal from convictions of first degree murder with use of a deadly weapon, robbery with
use of a deadly weapon, and a sentence of death. Eighth Judicial District Court, Clark
County; James A. Brennan, Judge.
Defendant was convicted in the district court of first degree murder and robbery, both with
use of deadly weapon, and was sentenced to death. Defendant appealed. The supreme court,
Young, J., held that: (1) defendant's involuntary medication with antipsychotic drugs during
trial did not deprive him of right to full and fair trial or of right to present defense by
depriving him of ability to present his natural demeanor to jury as part of his insanity
defense; {2) evidence supported jury's finding, as aggravating circumstance, that murder
was committed while defendant was engaged in commission of or flight after robbery; {3)
photographs of murder scene were properly admitted during penalty phase; and {4)
defense witness could be questioned regarding his alleged homosexual relationship with
defendant to establish possible bias.
full and fair trial or of right to present defense by depriving him of ability to present his
natural demeanor to jury as part of his insanity defense; (2) evidence supported jury's finding,
as aggravating circumstance, that murder was committed while defendant was engaged in
commission of or flight after robbery; (3) photographs of murder scene were properly
admitted during penalty phase; and (4) defense witness could be questioned regarding his
alleged homosexual relationship with defendant to establish possible bias.
Affirmed.
Mace J. Yampolsky, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and Bill A. Berrett, Deputy District Attorney,
Clark County for Respondent.
1. Criminal Law.
Involuntary medication of defendant with antipsychotic drugs during murder prosecution did not violate his right to full and fair
trial or his right to present defense to extent he was unable to present his natural demeanor to jury as part of his insanity defense, where
there was ample expert testimony informing jury of effect that antipsychotic drug had on defendant's demeanor and testimony.
2. Homicide.
Evidence was sufficient to support jury's finding, as aggravating circumstance in determining whether to sentence defendant to
death, that murder was committed while defendant was engaged in commission or attempt to commit robbery, burglary, or kidnapping
in first degree, regardless of whether there was evidence of breaking and entering or intent to commit felony as would be required to
find that defendant was engaged in burglary, given jury's finding defendant guilty of robbery during guilt phase; only one of the
predicate offenses listed in special verdict had to be found to establish aggravating circumstance.
3. Criminal Law.
It is responsibility of objecting party to see that record on appeal before reviewing court contains material to which he takes
exception; if such material is not contained in record on appeal, missing portions of record are presumed to support district court's
decision, notwithstanding appellant's bare allegations to contrary.
4. Criminal Law; Jury.
Scope and manner of voir dire examination is within sound discretion of district court and, or review, such discretion is accorded
considerable latitude.
5. Criminal Law.
Defendant failed to establish that voir dire conducted in murder prosecution violated his right to impartial jury, based upon his
assertions that cursory questioning of venire panel did not afford reasonable assurance that individual
prejudice would be revealed and that individual sequestered voir dire should have been permitted, where
appellate record did not contain transcription of voir dire or State's oral opposition to motion and possible
basis of ruling on sequestered voir dire.
that cursory questioning of venire panel did not afford reasonable assurance that individual prejudice would be revealed and that
individual sequestered voir dire should have been permitted, where appellate record did not contain transcription of voir dire or State's
oral opposition to motion and possible basis of ruling on sequestered voir dire.
6. Criminal Law.
District court did not abuse its discretion in denying defendant's motion for co-counsel in murder prosecution, in which defendant
faced death sentence. NRS 260.060.
7. Homicide.
Photographs depicting various scenes from murder victim's apartment after homicide were properly admitted during penalty phase
to show torture, which was one of aggravating circumstances alleged by prosecution, irrespective of their possible duplicative nature.
NRS 48.035, subds. 1, 2, 175.552.
8. Witnesses.
Cross-examination of defense witness in murder prosecution regarding his alleged homosexual relationship with defendant was
proper for purposes of showing possible bias.
OPINION
On November 20, 1987, appellant David Riggins rode with his roommate, Lowell
Pendrey, to Paul Wade's apartment, where Pendrey waited outside while Riggins went in for
about half an hour. Shortly after Riggins left Wade's apartment, Wade's girlfriend went to his
apartment when she was unable to reach him by telephone. She found Wade dead on the floor
with multiple stab wounds and a number of dog bites. Police arrested Riggins the next
evening. He was charged with first degree murder and robbery, both with use of deadly
weapon. After being found competent to stand trial, Riggins pleaded not guilty and not guilty
by reason of insanity. Following a four-day trial held in November 1988, Riggins was
convicted by a jury of first degree murder and robbery, both with use of a deadly weapon. The
jury sentenced Riggins to death.
Within a week of being incarcerated, starting in late November 1987, Riggins was put on
Mellaril, an antipsychotic drug. The medication was commenced because Riggins complained
of hearing voices; he continued to be medicated through trial the following November, with
increased dosages in December 1987, January, May, and July 1988. During February and
March 1988 when Riggins was examined and found competent to stand trial, he was
medicated with 450 mg. of Mellaril per day. At trial, Riggins was medicated with 800 mg. of
Mellaril per day.
In June, defense counsel filed a motion to terminate administration of medication, arguing
that medication during trial violated Riggins' right to present a defense and that Riggins had
done nothing to demonstrate a need for medication. The State opposed the motion,
contending that the medication was necessary to maintain Riggins' competency to stand trial.
The court denied the motion following a hearing held in July.
[Headnote 1]
On appeal, Riggins contends that his involuntary medication with antipsychotic drugs
during the trial violated his Sixth Amendment right to a full and fair trial by depriving him of
his right to present his natural demeanor to the jury as part of his insanity defense. Riggins
also argues that the district court abused its discretion in denying his motion to terminate
administration of medication. The State contends that the denial of the motion was within the
discretion of the trial court and should not be disturbed on appeal absent a clear showing of
abuse. See, e.g., Sparks v. State, 96 Nev. 26, 30, 604 P.2d 802, 804 (1980).
The question whether forced medication during trial violates a defendant's constitutional
right to present a defense is one of first impression in Nevada. Other states that have
considered this question all agree that the accused's demeanor has probative value where his
sanity is in issue. See, e.g., Commonwealth v. Louraine, 453 N.E.2d 437 (Mass. 1983); State
v. Law, 244 S.E.2d 302 (S.C. 1978). However, states are evenly divided over whether expert
testimony about the effect of the medication can substitute for the jury's firsthand observation
of the defendant's natural demeanor.
Those courts that have compelled medication have viewed the defendant's psychological
makeup as evidence that can be explained to the jury. Accordingly, they have required that
the jury be informed of the effect that the medication has on the defendant's behavior. See,
e.g., Law, 244 S.E.2d 302. On the other hand, those courts that have upheld the defendant's
right to be tried while unmedicated conclude that expert testimony may not substitute for
firsthand observation of the defendant's natural demeanor. See, e.g., Louraine, 453 N.E.2d
437.
In this case, there was ample expert testimony regarding the effect that the Mellaril had on
Riggins. After reviewing the differing decisions, we are persuaded that expert testimony was
sufficient to inform the jury of the effect of the Mellaril on Riggins' demeanor and testimony.
Accordingly, the district court did not abuse its discretion in denying the motion to terminate
medication. Moreover, the denial of Riggins' motion to terminate medication did not deprive
him of his rights to a full and fair trial and to present a defense. Compare Law, 244 S.E.2d at
306-307.
[Headnote 2]
The jury's special verdict reveals that only one of the alleged aggravating circumstances
was proved beyond a reasonable doubt: that the murder was committed while Riggins was
engaged, alone or with others, in the commission of or an attempt to commit or flight after
committing or attempting to commit a robbery, burglary, or kidnapping in the first degree.
Riggins contends that the evidence was insufficient to establish burglary as an aggravating
circumstance because there was no breaking and entering nor intent to commit a felony
within Wade's house.
However, the instruction allowed the jury to find aggravation if Riggins was engaged in
robbery or burglary. Because the jury found Riggins guilty of robbery during the guilt phase,
they likely found that he committed the murder during the commission of the robbery,
eliminating the necessity of establishing a breaking and entering with intent to commit a
felony. We conclude that the jury's finding with respect to aggravation was supported by
substantial evidence.
[Headnotes 3-5]
Riggins next contends that the voir dire violated his Sixth Amendment right to an
impartial jury because the cursory questioning of the venire panel as a whole did not afford a
reasonable assurance that individual prejudice would be revealed. Riggins also argues that the
district court abused its discretion in denying his motion for individual sequestered voir dire.
In the designation of the record on appeal, Riggins' counsel designated [a]ll pleadings and
motions, the complete trial transcripts, excluding voir dire, and the Judgment of Conviction.
(Emphasis added.) Thus, the record does not contain a transcription of the voir dire. Nor does
the record contain the State's oral opposition to the motion and the possible basis of the
district court's ruling on sequestered voir dire because counsel did not designate transcripts of
the hearing on the motion.
It is the responsibility of the objecting party to see that the record on appeal before the
reviewing court contains the material to which they take exception. If such material is not
contained in the record on appeal, the missing portions of the record are presumed to support
the district court's decision, notwithstanding an appellant's bare allegations to the contrary.
See, e.g., State v. Zuck, 658 P.2d 162, 165-66 (Ariz. 1982); People v. Wells, 776 P.2d 386,
390 (Colo. 1989). Moreover, the scope and manner of voir dire examination is within the
sound discretion of the district court and, on review, such discretion is accorded considerable
latitude. Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 937-38 (1978) (quoting
Oliver v. State, 85 Nev. 418, 424, 456 P.2d 431, 435 {1969) and Spillers v. State, S4 Nev.
23, 27
P.2d 431, 435 (1969) and Spillers v. State, 84 Nev. 23, 27, 436 P.2d 18, 20 (1968)). For the
foregoing reasons, we reject appellant's assignments of error regarding the voir dire
examination.
[Headnote 6]
Riggins next contends that the district court abused its discretion in denying his motion for
co-counsel. He maintains that the court's failure to appoint co-counsel deprived him of his
constitutional right to the effective assistance of counsel. After reviewing the record,
however, we conclude that the district court did not abuse its discretion, pursuant to NRS
260.060, in denying the motion for co-counsel. See Sechrest v. State, 101 Nev. 360, 368, 705
P.2d 626, 632 (1985).
[Headnote 7]
Riggins also contends that the district court abused its discretion in admitting a number of
photographs during the penalty phase. He contends that the photographs, which depicted
various scenes from the victim's apartment after the homicide, were duplicative because
expert testimony and photographs previously admitted during the guilt phase were sufficient
to illustrate the State's theory of murder by torture. Further, he asserts that the photographs
were gory and inflammatory, and unduly prejudiced him. The State contends that the
photographs were relevant and admissible to show torture, one of the three aggravating
circumstances alleged by the prosecution.
Pursuant to NRS 48.035(2), the trial judge has discretion to exclude relevant evidence if
its probative value is substantially outweighed by considerations including needless
presentation of cumulative evidence. Moreover, under NRS 48.035(1), relevant evidence is
not admissible if the danger of unfair prejudice substantially outweighs the probative value of
the relevant evidence. However, NRS 175.552 allows evidence during the penalty hearing
that may ordinarily be inadmissible.
Without deciding whether the photographs admitted during the penalty hearing were
duplicative, we conclude that, given the trial court's broad discretion and the provisions of
NRS 175.552, there was no error in allowing the photographs into evidence.
[Headnote 8]
Lastly, Riggins contends that the district court erred in allowing the State to cross-examine
Lowell Pendrey, the sole defense penalty phase witness, regarding his alleged homosexual
relationship with Riggins. Riggins asserts that the court further erred in allowing the State's
rebuttal witness to testify concerning a conversation she overheard regarding this alleged
relationship. Riggins contends that this testimony inflamed the jury and unduly prejudiced
him, requiring a new penalty hearing.
During cross-examination, Pendrey denied having a conversation in which he allegedly
acknowledged that he and Riggins were homosexual lovers. The prosecution then called
Ellen Bezian, sister of the victim's girlfriend, to rebut Pendrey's truthfulness. Over defense
counsel's objection, the court first ruled that the State's effort to impeach Pendrey with
questions about the conversation did not involve a collateral matter. Following two additional
objections by defense counsel, the court ordered stricken the entire conversation, apparently
finding the conversations too tenuous for impeachment purposes. The court then instructed
the jury to disregard the conversation.
We conclude that the cross-examination of Pendrey was proper for purposes of showing
possible bias. Therefore, we conclude that the district court did not err in initially allowing
the prosecutor to question Bezian about the conversation.
In reviewing the overall record, we concluded that Riggins' contentions lack merit and that
the sentence was not excessive, considering both the crime and the individual characteristics
of the defendant. We hereby affirm his death sentence and the underlying convictions of first
degree murder and robbery with use of a deadly weapon.
Mowbray, C. J., and Steffen, J., concur.
Rose, J., concurring:
I am concurring with the majority because I would have preferred two points to have been
better established by the record. First, the fact that Riggins needed to be on the prescribed
drug; and second, that he could not adequately function if the medication were terminated.
When Riggins was arrested, he complained of hearing voices and having trouble sleeping.
He told Dr. Edward Quass, a psychiatrist, that he had taken Mellaril before and it had helped
him. After a ten minute examination, Dr. Quass prescribed 100 milligrams a day because, as
he said, Riggins had been on the drug before. Dr. Quass increased the amount to 800
milligrams a day because Riggins continued to hear voices and requested an increase in the
dosage.
The court would not permit Riggins to terminate the massive dosage of Mellaril prior to
trial to determine if he could function without the drug. Instead, the court relied on what
psychiatrists thought would happen if the medication were stopped. A better method to
determine the effects of stopping the medication would be to actually do so, and observe the
results on the defendant. This is especially true in this case where two of the psychiatrists
opined that Riggins' psychosis was probably caused by drug abuse; and if that were the
case, terminating the drug would have no effect on his behavior.
abuse; and if that were the case, terminating the drug would have no effect on his behavior.
Since two of the four psychiatrists believe that the termination of Mellaril would have no
effect on Riggins, he should have been given the opportunity to suspend the taking of it and
let it be seen if it had an effect on his behavior.
No defendant should be involuntarily medicated during his trial unless it is truly necessary.
This is especially true in a capital case where the defense is insanity. A defendant's right to
have the jury observe his actions and demeanor should not be prevented unless it is absolutely
required. One way to determine if it is necessary would be to suspend the taking of the
medication and observe the defendant's behavior. This was not done with Riggins.
However, we have previously held that when a defendant is involuntarily medicated during
trial, we will review the entire record to determine whether he was denied a fair trial and
whether the defendant's appreciation of the events of trial was diminished. Lizotte v. State,
102 Nev. 238, 720 P.2d 1212 (1986). From my review of the record, Riggins was not denied
a fair trial and it is not shown that he lacked an appreciation of the trial. Two psychiatrists
who had prescribed Mellaril for Riggins, Dr. Quass and Dr. O'Gorman, testified that they
believed it was helpful to him. Additional psychiatric testimony established that Mellaril may
have increased Riggins' cognitive ability and prevented him from dangerous behavior.
While a review of the entire record meets the standard we set in Lizotte, I would prefer a
stronger showing that the medication was absolutely necessary, and evidence establishing
how the defendant behaved without it.
This case is another
1
in which we are faced with a novel legal issue presented by courtesy
of modern medical science. It seems that the medical doctors are now quite capable of
conjuring in their insane clients a sort of synthetic sanity
2
by infusion into their brains a
class of drugs, called variously psychotropic, neuroleptic, or antipsychotic. These drugs
have been in use for perhaps thirty years and are known to act chemically on the nerve cell
receptors of the brain in a mannersometimes referred to as a chemical lobotomywhich
rather drastically alters the thinking processes, emotional responses, behavior and appearance
of those whose brains have been seized
3
by these powerful drugs.
__________

1
See, for example, McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617 (1990) (Springer, J., dissenting).

2
State v. Hampton, 218 So.2d 311, 312 (La. 1969).

3
The word neuroleptic denotes a seizure of the nerves of the brain.
So powerful are these drugs that a highly mentally disturbed insane person can be made to
appear perfectly sane. These drugs so well mask underlying mental disorders that persons
who are agreed by all to be mentally incompetent and thus unfit to stand trial can be drugged
into a mental state in which psychotic symptoms disappear. There is, however, a price to pay
for this neurolepsis. The synthetically sane defendant becomes mentally and emotionally
inert and in a state of chemically induced tranquility.
4
Wildly psychotic persons frequently
become docile and apathetic. The medical literature frequently uses the word zombie to
describe the appearance and behavior of neuroleptic patients. The synthetically sane
personality is characterized by indifference to what is going on and by boredom, lethargy,
docility and purposelessness.
5

My point is very simple: I do not think that these drugs should be forced down the throats
of these defendants, thereby inducing an unnatural and unwanted state of consciousness, just
so the state can bring them to justice. Riggins pleaded with the trial court to leave him
alone and not allow the state to drug him into being someone he was not. I think the court
erred when it refused to give Riggins protection from state mind-control by forced drugging.
More and more of these kinds of cases are coming to the attention of this court. The
following illustrates a representative pattern of the way in which psychotics are often treated
in the criminal justice system. The procedures, which I now outline, do not necessarily fit
exactly the facts of this case, but they do show the kinds of medical and legal procedures that
give rise to my concern. Here is the kind of treatment that I am talking about:
Stage One: An obviously mentally disturbed person commits a crime. Police
necessarily refer the person to mental health professionals.
Stage Two: Psychiatrists or psychologists see the arrestee and, seeing that the person is
confused, out of contact with reality and suffering from delusions and vivid auditory or
visual hallucinations, conclude that the person is suffering from psychosis and should
be institutionalized for treatment. (At this time the doctors frequently are in agreement
that the arrested person was psychotic at the time of the commission of the crime.)
Stage Three: The psychotic person is placed in confinement where "treatment" is
instituted by administering the mentioned "major tranquilizers."
__________

4
These drugs used to be called major tranquilizers.

5
See Comment, Madness and Medicine: The Forcible Administration of Psychotropic Drugs, 1980
Wis.L.Rev. 497, 512.
where treatment is instituted by administering the mentioned major tranquilizers.
Pretty soon the patient is zombified to the extent that he or she is no longer ranting
or raving and, although a little sleepy most of the time, looks to be as sane as you or I.
Stage Four: The then psychotic but synthetically sane person is sent back to the
criminal justice system with a doctor's certificate saying that the psychotic person is
now sane and fit to stand trial.
Stage Five: The synthetically sane zombie sits smilingly through the trial, listening
indifferently to experts testify that he or she is presently mentally competent and was
mentally competent at the time of committing the crime. The tranquilized defendant
obligingly nods assent to whatever is being said.
Stage Six: The jury understandably assumes that the defendant was as sane at the time
of the crimes as he appears to be in court. The defendant is convicted. The drugs are
withdrawn, and the psychotic state resumes.
I am hoping that this kind of drug abuse, this kind of intrusion into the inner sancta of
human personalities will be seen for what it is, oppressive and violative of the human dignity
of those who are forced to submit to the demands of the white-coated syringe bearers. For
those who cannot see the outrage of this kind of mind control on its face, I will proceed now
to cite legal authority for putting an end to these procedures.
Right to Appear and Defend
Forceful administration of these mind-altering drugs (particularly upon a person who has
been declared legally sane
6
) is an interference with one's right to appear and defend
against charges in a criminal case. With the use of these drugs medical science can now alter
the chemical workings of the brain and radically interfere with one's emotional and thought
processes. Before the advent of these drugs the United States Supreme Court was able to
observe: Freedom to think is absolute of its own nature; the most tyrannical government is
powerless to control the inward workings of the mind. Jones v. Opelika, 316 U.S. 584, 618
(1942) (Murphey, J., dissenting), rev'd, 319 U.S. 103 (1943). That was in 1942; it is, of
course, no longer true that the government is powerless to control the inward workings of
the mind.
__________

6
In Ford v. District Court, 97 Nev. 578, 635 P.2d 578 (1981), this court, in issuing a writ of mandamus,
stated that the trial court had exceeded its jurisdiction when it ordered a competent defendant to submit to the
administration of drugs. One would think that the ruling in Ford was controlling in this case.
government is powerless to control the inward workings of the mind. It can control the
inward workings of the mind by forced druggings. The government, in this case, forcefully
and over the strongest protest, was exerting control over the inner workings of the mind of
David E. Riggins. Although 1984 has come and gone, the Orwellian Thought Police are
now within the realm of scientific possibilities. As Justice Brandeis so wisely observed in his
dissent in Olmstead v. United States, 277 U.S. 438, 479 (1927), Experience should teach us
to be most on our guard to protect liberty when the government's purposes are beneficent.
Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding. The state may be telling us that it is only treating
these people for their own good, but it seems to me that the beneficent goal of treatment is
being turned into an insidious encroachment on the dignity and integrity of humans who
ought to have the right to refuse to be drugged into an unnaturally tranquil and submissive
state.
The criminally accused have a fundamental right to be present at their trial and to confront
witnesses against them. This right derives from the common law and is required by our sense
of natural justice. Such rights are embodied in the sixth and fourteenth amendments to the
United States Constitution and in article 1, section 8 of the Nevada Constitution, which
provides that the party accused shall be allowed to appear and defend in person.
That right to be present at one's own trial necessarily means the right to be present as one
really is, not as a chemically-conjured persona which bears little resemblance to the real
person as he or she would be in the natural, undrugged state. Competent persons (as Riggins
was judicially declared to be) defending against criminal charges should not, in any system of
criminal justice, be compelled against their will to take into their brain drugs which radically
alter their thinking, emotion and behavior.
In a case comparable to the one now before us, State v. Maryott, 492 P.2d 239 (Wash.App.
1971), the trial court allowed the state to continue administration of librium and other
minor tranquilizers to the defendant against his will. The Washington Court of Appeals
reversed his conviction, holding that to allow the state to administer drugs against the
defendant's will was to allow the state to alter the judgment and mental capacity of its
adversary. The court observed that [o]ur total legal tradition is contrary to this. 492 P.2d at
241. I agree.
The Maryott court drew a parallel between the state's forced use of drugs and the use of
chains and torture. Both affect the ability of an accused to use freely his mental faculties at
trial. The court stated that [a]lthough drugs have not always been the subtle menace they
now are in our society, action by the state which affected the reason of a defendant at the time
of trial was forbidden at an early time. Id. at 241.
A criminal defendant should not be deprived of his or her right to appear and defend by
means of the state's forced administration of antipsychotic drugs. An accused has a right to be
present at the trial in a natural state, free from the effects of modern mind meddling.
Right to Present Evidence
Riggins has also been denied his right to present relevant evidence, specifically, himself, in
his true mental state. Where, as here, the sole issue at trial is the defendant's mental state, the
most compelling evidence available is the defendant himself. No testimony of psychiatrists,
psychologists, social workers, friends or family can approach the insight a jury is afforded by
the opportunity to see and hear the defendant, as is. In order to be of any real benefit to the
finders of fact the defendant must be presented in his natural state, not under the influence of
mind altering drugs. It is the quality of Riggins' natural mental state that is at issue here. By
distorting Riggins' natural mental condition, the state masked evidence critical to the sole
issue at trial. The state was allowed to cover Riggins' personality with a chemical veil that
prevented the jury from seeing the accused as he really was.
This court has previously recognized that the conduct and demeanor of a defendant after
the crime are relevant to the jury's consideration of insanity at the time of the offense. Sollars
v. State, 73 Nev. 248, 316 P.2d 917 (1957); State v. Lewis, 20 Nev. 333 (1889). The weight
to be given to the defendant's after-the-fact mental condition is a function of the jury. In
Sollars, above, we quoted from 2 Wigmore on Evidence (3d. ed.) 25, 233:
A condition of mental disease is always a more or less continuous one, either in
latent tendency or in manifest operation. It is therefore proper, in order to ascertain the
fact of its existence at a certain time, to consider its existence at a prior or subsequent
time.
73 Nev. at 261, 316 P.2d at 924.
The courtroom demeanor of a defendant is the most reliable evidence of mental condition.
Certainly an expert cannot draw a verbal picture of a defendant's condition that is
anywhere near as reliable as would be an observation of the defendant in an undrugged,
natural state.
a verbal picture of a defendant's condition that is anywhere near as reliable as would be an
observation of the defendant in an undrugged, natural state. In State v. Lewis, above, we
discussed the limitations of verbal description as opposed to direct observation:
As a general rule it is undoubtedly true that it is the facts which a witness gives of the
conduct, acts, manner, and conversations of the defendant which constitute the greatest
value of his testimony, and that the testimony of a witness having but a limited
knowledge upon these matters ordinarily has but little, if any, weight with the jury; but it
is not true that a witness is bound to give, or that he can in all cases give, the glare of the
eye, the wild look, the peculiar expressions, or strange demeanor of the defendant. There
are many cases where the mental condition of a person depends as much, or more, upon
his looks and gestures, connected with his acts, conduct, or conversation, as upon the
words and actions themselves; and it would be difficult, and sometimes impossible, for
the witness to intelligently give all of the details upon which his opinion is based.
20 Nev. at 345-46 (emphasis added).
In Washington v. Texas, 388 U.S. 14, 19 (1967), the United States Supreme Court
announced that few rights are more fundamental in our jurisprudence than that of an accused
to present his or her version of the facts. Here Riggins was not permitted to present his
version of the facts because evidence crucial to that version was suppressed by the drugs that
had permeated his brain. Throughout the trial the jury sat and watched Riggins in a controlled
and to the jurors what was apparently his normal mental state. Little wonder it is that the jury
concluded that Riggins was in a similar, composed state at the time of the bizarre and brutal
slaying in this case.
In disapproving the forceful administration of mind-altering drugs to criminal defendants, I
do not mean to be understood as saying that these drugs should never be employed in a
prosecutorial context. There may be times when the defendant himself may seek the help of
these drugs; and there may even be ways in which the drugs can be employed in a manner in
which the defendant's basic right to be and remain himself is not curtailed. I object only to
forcing drugs upon people who do not want to be drugged.
____________
107 Nev. 191, 191 (1991) State v. Reyes
THE STATE OF NEVADA, Appellant, v. JOSE NUNEZ REYES, Respondent.
No. 20559
March 28, 1991 808 P.2d 544
Appeal from order granting motion to suppress evidence. Second Judicial District Court,
Washoe County; William N. Forman, Judge.
Charges were filed against suspected drug dealer. The district court granted motion to
suppress evidence obtained pursuant to search warrant issued on basis of information
confirmed through eavesdropping on extension telephone by police agent, and State appealed.
The supreme court, Steffen, J., held that police agent's conduct in eavesdropping from
extension telephone on police informant's conversation with suspected drug dealer came
within exception to statutory prohibition against unauthorized interception of wire or oral
communications for communication intercepted by telephone equipment being used by
investigative or law enforcement officer in ordinary course of his duties.
Reversed.
Young, J., dissented.
Attorney, and Gary Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
David Houston, Reno, for Respondent.
Telecommunications.
Police agent's conduct in eavesdropping from extension telephone on police informant's telephone conversation with suspected
drug dealer came within exception to statutory prohibition against unauthorized interception of wire or oral communications for
communication intercepted by telephone equipment being used by investigative or law enforcement officer in ordinary course of his
duties. NRS 179.425, subd. 1(b).
OPINION
This is an appeal from an order granting a motion to suppress evidence obtained pursuant
to a search warrant issued on the basis of information confirmed through eavesdropping on
an extension telephone by a police agent.
107 Nev. 191, 192 (1991) State v. Reyes
basis of information confirmed through eavesdropping on an extension telephone by a police
agent. The sole issue on appeal is whether the eavesdropping, occurring without the consent
of all parties to the conversation, was authorized under Nevada law. We hold in the
affirmative and reverse.
Nevada law prohibits the unauthorized interception of wire or oral communications. See
NRS 200.620; NRS 179.410 to 179.515, inclusive. Under NRS 179.430 the term intercept
is defined as the aural acquisition of the contents of any wire or oral communication through
the use of any electronic, mechanical or other device or of any sending or receiving
equipment. In pertinent part, NRS 179.425 defines electronic, mechanical or other device
as any device or apparatus which can be used to intercept a wire or oral communication
other than: 1. Any telephone . . . instrument, equipment or facility, or any component thereof
. . . (b) Being used by . . . an investigative or law enforcement officer in the ordinary course of
his duties. (Emphasis added.)
In the instant case, an untested police agent/informant, under the direction of officers of
the Washoe County Consolidated Narcotics Unit (CNU) used a police telephone to call a
suspected drug dealer, Reyes, and arrange a buy. Because the officers knew that the
informant's conversation with Reyes would be in Spanish, they took the reasonable
precaution of having an interpreter listen to the conversation on an extension telephone. CNU
agents did not want to risk the possibility of the untested informant either jeopardizing the
lives of the officers or frustrating a lawful prosecution by means of an entrapment. We
conclude that the conduct of the officers was both reasonable and lawful under the statutory
latitude quoted above.
The State's position is consistent with that of other courts that have had occasion to
consider the same issue. For example, in State v. Page, 386 N.W.2d 330 (Minn.Ct.App.
1986), police officers entered a suspect's apartment without a warrant and under disputed
circumstances; the suspect's roommate was the only person present. While the officers were
in the apartment, the telephone rang. The roommate was directed to answer the phone while
the officers listened in on an extension. Because it is evident that the Page court's reasoning is
applicable to the instant case, we quote from the ruling at length:
Since there was no consent, we must determine if there was an interception as
contemplated by the statutes. If the eavesdropping did not involve the use of an
electronic, mechanical or other device, then no interception occurred and the officer's
actions were proper. See 18 U.S.C. 2510{4); Minn.Stat. 626A.01, subd. 5. A
telephone extension, when used for eavesdropping by an investigative or law
enforcement officer in the ordinary course of business, does not constitute an
interception.
107 Nev. 191, 193 (1991) State v. Reyes
2510(4); Minn.Stat. 626A.01, subd. 5. A telephone extension, when used for
eavesdropping by an investigative or law enforcement officer in the ordinary course of
business, does not constitute an interception. 18 U.S.C 2510(5); Minn.Stat.
626A.01, subd. 6(a). Thus, law enforcement officers are insulated from the proscription
against eavesdropping, so long as the eavesdropping occurred in the ordinary course
of their duties, which includes the investigation of crimes. This eavesdropping is an
ordinary tool of law enforcement officers and is consistent with public policy. This is
inherent in the statutory scheme at both the federal and state level. See 18 U.S.C.
2510(5); Minn.Stat. 626A.01, subd. 6(a).
In this case, the police utilized a telephone extension in furtherance of the
investigation of a case of assault and robbery. The use of the telephone extension was in
the ordinary course of police business. Thus, the use of a telephone extension in this
case was not an interception through any electronic, mechanical or other device, and
the police use of it did not violate the proscriptions against eavesdropping.
This decision is one of first impression in Minnesota, so reference to Minnesota
caselaw is not helpful. Our reasoning, however, is consistent with the reasoning of
other jurisdictions that have considered similar questions. See, e.g., State v. McDermott,
167 N.J.Super. 271, 400 A.2d 830 (1979). In that case, the police listened to and
recorded a telephone conversation of the defendant via a telephone extension. Under
the New Jersey eavesdropping statute, which is similar to Minnesota's, the New Jersey
Superior Court found that the police conduct did not constitute an interception
because the police had utilized a regularly installed extension telephone. Id. at 277,
400 A.2d at 834. Since the telephone was not installed specifically for the purpose of
eavesdropping, the court found that the use of the telephone occurred within the
ordinary course of business. Id. at 277, 400 A.2d at 833. The New Jersey reasoning is
persuasive.
(Emphasis supplied.)
Reyes contends that Page is inapposite because unlike Nevada, Minnesota is a one-party
consent jurisdiction. Reyes is wrong, however, because consent was not an issue in Page.
Moreover, Page is directly applicable to the instant case, because the Minnesota statute, in
pertinent part, is virtually identical to the Nevada statute. Thus, in Minnesota, as in Nevada,
an exception to the requirement for properly authorized or consensual interception of private
communications exists when telephone equipment is used "by an investigative or law
enforcement officer in the ordinary course of his duties."
107 Nev. 191, 194 (1991) State v. Reyes
private communications exists when telephone equipment is used by an investigative or law
enforcement officer in the ordinary course of his duties. Furthermore, recognition of the
exception in the instant case is far more compelling than in Page. Here, both the telephone
used by the informant and the extension used by the interpreter were located at CNU offices
and represented equipment regularly installed and used in the ordinary course of CNU's
investigative and law enforcement duties. In Page, the telephones were in the suspect's
apartment, being used without the approval of the suspect or his roommate in an effort to
accomplish the successful apprehension and prosecution of the suspect.
The case of Adams v. State, 406 A.2d 637 (Md.App. 1979), involved a jurisdiction that
required the consent of all participants to a private communication before an interception by
consent was lawful. In Adams, the victim of a forcible sexual assault was asked to eavesdrop
from an extension phone in the police station while the police, through pretext and deception,
spoke to potential suspects on the telephone. During a conversation with the actual
perpetrator of the crime, the victim was able to identify his voice, thereby enabling the police
to identify and apprehend the suspect. The Adams court, citing to statutory provisions
virtually identical to the Nevada provision at issue here, stated:
The issue posed by the appellant is whether an extension telephone used at the
direction of a police officer, in a police station under the circumstances of this case,
constitutes an electronic, mechanical, or other device as defined in the Act. If the
extension was furnished to the subscriber by a communications common carrier in the
ordinary course of its business and was used by the subscriber or user in the ordinary
course of business or if the extension was used by an investigative or law enforcement
officer in the ordinary course of his duties, the telephone extension would not be an
electronic, mechanical, or other device as defined in the Act, and there would be no
interception.
(Emphasis added.) Continuing, the court in Adams declared:
We find that under 10-401(4)(i)(b) [the exact counterpart to NRS 179.425(1)(b)], the
specific exception for telephone extensions and other telephone components give
broader latitude in the use of telephone instruments and components than is given for
the use of other types of electronic surveillance equipment, such as hidden microphones
or tape recorders.
Clearly this section is not meant as a substantial loophole in the protection afforded
by the Act. On the other hand, the section must be interpreted as giving some
authorization to an investigative or law enforcement officer to use telephone
equipment without the express consent of both parties.
107 Nev. 191, 195 (1991) State v. Reyes
section must be interpreted as giving some authorization to an investigative or law
enforcement officer to use telephone equipment without the express consent of both
parties. It is clear that the term ordinary course of his duties must include only lawful
and proper activities and it is both a limitation as well as a protection.
In the instant case, the police were investigating a crime and attempting to apprehend
the perpetrator. The manner in which the extension telephone was used was lawful and
proper and was in the ordinary course of police duties. Used in such a manner, the
extension phone does not constitute an electronic, mechanical, or other device. Further,
since the extension phone was not a device within the meaning of the Act, there was
no interception and hence no violation of the provisions of the Act.
The court in Adams also noted that the victim who was eavesdropping on the extension
phone was also a police agent, acting at the direction of the police department. In the instant
case, both the informant and the interpreter were acting as police agents. Clearly, as observed
in Adams, if the interpreter had simply stood next to the informant, and had the informant
hold the receiver away from his ear to allow the interpreter to listen, there would have been
no violation of the statute, See Adams, 406 A.2d at 642 (citing United States v. McLeod, 493
F.2d 1186 (7th Cir. 1974)). This is but another reason why the exception written into the
statute makes good common sense. The CNU officers were reasonably using a telephone
extension to facilitate, in the ordinary course, their duties as investigative and law
enforcement officers. As noted by the court in Ladrey v. Commission on Licensure to
Practice, 261 F.2d 68 (D.C.Cir. 1958):
No one is bound to answer a ringing telephone. If he does pick up the receiver, he is not
required to talk to the outside caller. If he chooses to talk, he may well understand that
the calling party, the original sender may have others listening to the conversation,
whether in a group around the caller's telephone or on an extension attached to it.
Id. at 72-73.
The State also referred to State v. McDermott, 400 A.2d 830 (N.J.Super.Ct.App.Div.
1979), another case directly supportive of the State's position in the instant case. In reversing
a lower court suppression order, the McDermott court stated:
It will be seen that without the use of an electronic mechanical or other device
(intercepting device) an overhearing is not an intercept within the meaning of the act.
. . .
107 Nev. 191, 196 (1991) State v. Reyes
An extension telephone regularly installed and being used . . . by an investigative or law
enforcement officer in the ordinary course of his duties . . . is not an intercepting device
within the intent and purpose of either the federal statute, 18 U.S.C.A 2510(5), or our
own statute, 2(d)(1).
Id. at 833. Although New Jersey was a one-party consent state, the quoted ruling by the
McDermott court construes the New Jersey counterpart to Nevada's statute without reference
to consent and in a manner totally consistent with the State's position concerning the absence
of an unlawful eavesdropping in instances where a telephone or telephone extension is used
by an investigative or law enforcement officer in the ordinary course of his duties.
The case of United States v. Harpel, 493 F.2d 346 (10th Cir. 1974), cited by Reyes in
support of the district court's suppression order is not persuasive. In Harpel the government
was prosecuting the defendant for disclosing and unlawfully intercepted wire or oral
communication between law enforcement officers, a tape recording of which was played by
Harpel to persons in a local bar. It was assumed, but not proved, that the interception of the
conversation occurred by means of a telephone extension. In its ruling affirming the
conviction, the court concluded that there is no interception if the acquisition of the contents
of the communication is accomplished through telephone equipment used in the ordinary
course of business. The court then concluded that use of an extension telephone by Harpel
would not constitute an exception under the federal statute because Harpel had overlooked
in his reliance on the exception . . . that the telephone equipment must be used in the
ordinary course of business.' Finally, the court held that we do not feel that a telephone
used in the manner contemplated under the facts of this case is employed in the ordinary
course of business. Id. at 352 (emphasis added.)
Simply stated, the Harpel court properly recognized that the telephone equipment
exception requires a use of the equipment in the ordinary course of business, or, in the case of
investigative or law enforcement officers, the ordinary course of [their] duties. Although
Harpel was a police officer at the time of the disclosure of the intercepted communication for
which he was prosecuted, it is clear from the facts of the case that Harpel was not engaged in
investigative or police work in the ordinary course of his duties or otherwise. Harpel was
acting on his own for personal purposes as revealed by his publication of the intercepted
communication to persons at a local bar. The Harpel case does not, therefore, support Reyes'
attempt to emasculate the telephone exception.
107 Nev. 191, 197 (1991) State v. Reyes
support Reyes' attempt to emasculate the telephone exception. Harpel is of value only insofar
as it states the obviousthe telephone exception applies only if the telephone equipment is
used by an investigator or law enforcement officer in the ordinary course of his duties. Our
review of the law and the record before us leads us to conclude that in Nevada: (1) wire or
oral communications aurally acquired through use of regularly installed telephone equipment
by an investigative or law enforcement officer in the ordinary course of his duties does not
constitute an interception; and (2) the legislature has specifically provided the NRS
179.425(1)(b) exception in order to facilitate efficient, effective police investigative and
enforcement activities rather than to impede them.
The cautionary approach taken by the CNU officers in investigating and prosecuting
Reyes' criminal drug enterprise was both eminently reasonable and precisely what the people
would expect of their law enforcement officers acting within the ordinary course of their
duties. In excepting investigative and law enforcement officers using telephone equipment in
the ordinary course of their duties from the constraints attached to an interception, the
legislature has focused on duty in the ordinary course as the basis for the exemption.
Investigative officers primarily investigate, and law enforcement officers primarily enforce
our laws; criminal investigations and law enforcement represent the most fundamental and
critically necessary aspect of their duties.
For the reasons specified above, we reverse the order entered below suppressing evidence
and remand the matter to the district court for further proceedings.
Mowbray, C. J., Springer and Rose, JJ., concur.
Young, J., dissenting:
The interpretation of the ordinary course of duties exception by the majority opinion
both frustrates the purpose of our statutory scheme and effectively swallows the rule.
NRS 179.425 serves as an exception to the general prohibition of unauthorized
interceptions of wire or oral communications and exempts from the definition of electronic,
mechanical, or other device, any telephone . . . used . . . by an investigative or law
enforcement officer in the ordinary course of his duties. NRS 179.460 prescribes the
procedure to obtain authorization for the interception of wire or oral communications. Nevada
clearly requires all parties to a communication to consent to an interception, absent prior
judicial authorization. NRS 200.620. In an emergency situation, NRS 200.620 specifies that a
law enforcement officer must obtain prior consent of one party to the communication and
make a written application to a judge within seventy-two hours of the interception.
107 Nev. 191, 198 (1991) State v. Reyes
ment officer must obtain prior consent of one party to the communication and make a written
application to a judge within seventy-two hours of the interception.
The majority's construction of the exception contained in NRS 179.425 effectively
emasculates the entire purpose of our statutory scheme: to prohibit law enforcement officers
from intercepting communications except with prior judicial authorization in specifically
defined circumstances.
1
The interception that occurred in this case was not in the ordinary
course of the law enforcement officer's duties because to interpret the exception as such
would abrogate the requirements provided in NRS 179.460 and NRS 200.620 that the
interception be authorized. Thus, under the majority opinion, any telephone extension
interception made by a police officer is in the ordinary course of his duties. I disagree that
our legislature intended the exception to swallow the rule; on the contrary, I conclude the
intent was dramatically different as delineated below.
Nevada's wiretap statutes (NRS 179.410 et seq.) are patterned after the federal wiretap
statutes in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. See 18
U.S.C. 2510-2520; State v. Bonds, 92 Nev. 307, 309 n.2, 550 P.2d 409, 410 n.2 (1976).
The ordinary course of duties exception is found in the federal scheme in 18 U.S.C.
2510(5)(a)(ii). I will first look to the federal legislative history and then to the federal case
law interpreting the meaning of the exception.
The legislative history of the ordinary course of duties exception contains the following:
Paragraph (4) defines intercept to include the aural acquisition of the contents of
any wire or oral communication by any electronic, mechanical, or other device. Other
forms of surveillance are not within the proposed legislation. An examination of
telephone company records by law enforcement agents in the regular course of their
duties would be lawful because it would not be an interception. The proposed
legislation is not designed to prevent the tracing of phone calls. The use of a pen
register, for example, would be permissible. . . . The proposed legislation is intended
to protect the privacy of the communication itself and not the means of communication.
S. Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin.
News 2178 (citation omitted) {emphasis added) {hereinafter "Senate Report").
__________

1
See United States v. Giordano, 416 U.S. 505, 514 (1974) (purpose of the comparable federal legislation
was to prohibit all interceptions except those specifically provided for, e.g., those permitted to law enforcement
officers when authorized by court order).
107 Nev. 191, 199 (1991) State v. Reyes
(emphasis added) (hereinafter Senate Report). This intent differs substantially from the
majority's interpretation that any interception involving a telephone extension in the ordinary
course of the law enforcement officer's duties is exempted from the authorization
requirement.
Federal courts which have considered the interpretation of the exception seem to base their
rationale on the specific facts presented by each case.
2
While no case directly matches the
facts in the instant appeal, the case law usefully represents a spectrum of permissible and
impermissible police conduct with regard to the ordinary course of duties exception. I turn
therefore to examine what eavesdropping activities are considered to be in the ordinary course
of a law enforcement officer's duties and what activities are outside of the scope of the
exception.
In Jandak v. Village of Brookfield, 520 F.Supp. 815 (D.Ill. 1981), the court concluded
that:
[R]outine, nonsurreptitious, recording of a police investigation line which results in the
recording of a conversation of an officer misusing the line for private purposes, where
the officer should have known that the line was monitored, was in the ordinary course
of the police chief's duties as a law enforcement officer, and is exempted from the
statute. . . .
Id. at 825. The Jandak court found the eavesdropping activity in that case to be within the
exception. Nevertheless, it rejected a broader interpretation urged by the police department: to
apply the exception whenever a police officer is engaged in an investigation and uses the
exempted telephone or telegraph equipment. The Jandak court wisely opined:
If the statute did not apply whenever a law enforcement officer was acting in the
ordinary course of his duties as this phrase is construed by defendants, then the whole
statutory scheme, providing procedures and standards for when and how law
enforcement officers may get court orders for electronic eavesdropping, would be
rendered meaningless. . . . This unduly broad reading of the exemption must be
rejected.
Id. at 823 (emphasis added). Further, the Jandak court noted that the cases reveal two factors
which primarily account for the decision whether the particular monitoring is within the
language of the exemption . . . [1] whether the equipment was installed and used for proper
business or investigative purposes and . . . [2] the extent to which the eavesdropping was
surreptitious, rather than with reasonable notice to the parties to the conversation that calls
might be monitored. Id. at 823 (footnote omitted).
__________

2
Jandak v. Village of Brookfield, 520 F.Supp. 815, 823 (D.Ill. 1981).
107 Nev. 191, 200 (1991) State v. Reyes
Applying these two factors to the instant case, I conclude that the police officer's acts can
only be construed as falling outside of the exception. First, the police directed the informant
to use a police telephone to call respondent and instructed an interpreter to eavesdrop on the
conversation on an extension line. The State has presented no evidence that the telephone
equipment in question was installed for these purposes. Furthermore, the cases which have
concluded that the equipment was installed for proper or investigative purposes found there
was routine monitoring of the telephone line.
3
The eavesdropping in the instant case was not
routine; rather, the police surreptitiously monitored that particular phone conversation.
Second, clearly no notice was provided in the instant case to either the informant or to
respondent Reyes. Neither the informant nor Reyes had any reason to know that the
conversation might be listened to by the police. Therefore, the entire purpose of our statutory
scheme, to protect the privacy of wire and oral communications, is heightened by the parties'
ignorance of the eavesdropping. Cases which have categorized the eavesdropping activity as
outside of the scope of the law enforcement officer's duties have focused on the absence of
notice.
4
Additionally, the fact that Nevada is a two-party consent jurisdiction further
emphasized the importance our legislature places on notice.
While the above-mentioned cases are not binding authority upon which this court must
rely, they illustrate the spectrum of conduct considered within and outside of the exception.
No federal cases have interpreted the exception as expansively as my brothers in the majority.
5

I turn now to the state court decisions upon which the majority relies. I believe the
underlying rationale in the Page, McDermott, and Adams decisions is wrong, and therefore
the majority's reliance upon them is erroneous. Page, McDermott, and Adams interpret the
exception so expansively that the entire purpose of requiring law enforcement officers
either to obtain prior authorization or to follow the necessary procedures in an emergency
situation is rendered meaningless.
__________

3
See, e.g., Jandak, 520 F.Supp. 815; United States v. Paul, 614 F.2d 115 (6th Cir.), cert. denied 446 U.S.
941, (1980); James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979); Crooker v. United States Dept.
of Justice, 497 F.Supp 500 (D.Conn. 1980); Simmons v. Southwestern Bell Tel. Co., 452 F.Supp. 392
(W.D.Okla. 1978).

4
See, e.g., Campiti v. Walonis, 611 F.2d 387 (1st Cir. 1979); United States v. Harpel, 493 F.2d 346 (10th
Cir. 1974); Gerrard v. Blackman, 401 F.Supp. 1189 (N.D.Ill. 1975); United States v. Banks, 374 F. Supp. 321
(W.D.S.D. 1974).

5
I quote the astute Jandak court: When considering a statute designed to protect privacy, a court must be
reluctant to give expansive reading to the exceptions. Jandak, 520 F.Supp. at 820.
107 Nev. 191, 201 (1991) State v. Reyes
requiring law enforcement officers either to obtain prior authorization or to follow the
necessary procedures in an emergency situation is rendered meaningless. I remain
unpersuaded by this rationale.
The district court properly relied upon United States v. Harpel, 493 F.2d 346 (10th Cir.
1974.) The majority asserts that Harpel is distinguishable because there the police officer had
no explanation for his conduct, legitimate or otherwise, and the telephone conversation was
entirely private. Here, Officer Magee testified about several legitimate law enforcement
interests which explained the use of the extension telephone.
There is no indication in Harpel, however, that the defendant police officer did not have
legitimate reasons for eavesdropping on the telephone conversation and tape recording it.
Moreover, law enforcement officers presumably could always articulate at least one
legitimate interest in eavesdropping on a conversation. The question of whether there was an
unlawful interception does not and should not hinge on whether there was a legitimate reason
for intercepting. The purpose of the wiretapping statutes is precisely to prevent unlawfully
intercepted communication as defined.
In sum, I am persuaded that the interception in question was not in the ordinary course of
the law enforcement officer's duties because the narcotics unit has no regular routine or
identified and indiscriminate policy of such interceptions. Furthermore, the interception in
question was not in the ordinary course of the law enforcement officer's duties merely
because the officers were engaged in the investigation of suspected criminal activity or could
articulate a purpose related to criminal investigation. The majority's determination effectively
swallows the rule against unauthorized wiretapping. Warrantless eavesdropping should not be
deemed conduct in the ordinary course of duty because of the potential for abuse by law
enforcement.
It seems to me that the majority's interpretation of the exception has substantially departed
from the United States Congressional intent when it anticipated that [a]n examination of
telephone company records by law enforcement agents in the regular course of their duties
would be lawful because it would not be an interception.' See Senate Report, supra, at
2178. For the reasons stated above, I am unable to endorse the majority opinion and therefore
dissent.
____________
107 Nev. 202, 202 (1991) City of Sparks v. Nason
CITY OF SPARKS, POLICE DEPARTMENT, WASHOE COUNTY, NEVADA,
Appellant, v. CHERY NASON, JEREMY R., a Minor, and a 1981 DATSUN, Its
Tools and Appurtenances, Respondents.
No. 20950
March 28, 1991 807 P.2d 1389
Appeal from an order of the district court granting respondents' motion for dismissal
pursuant to NRCP 12(b)(5). Second Judicial District Court, Washoe County; William N.
Forman, Judge.
City filed forfeiture complaint against pickup truck used by juvenile during commission of
burglary. Juvenile's motion to dismiss was granted by the district court. City appealed. The
supreme court, Rose, J., held that pickup was properly subject of forfeiture since burglary
would have been charged as felony had it been committed by and adult.
Dorothy Nash Holmes, District Attorney, and Maureen Sheppard-Griswold, Deputy
District Attorney, Washoe County, for Appellant.
David C. McElhinney, Reno, for Respondents.
1. Forfeitures.
Vehicle used to commit delinquent act is subject to forfeiture if act would have been charged as felony had it been committed by
an adult. NRS 179.121, subd.2.
2. Forfeitures.
Pickup truck which juvenile used during commission of burglary was subject to forfeiture proceeding, even though juvenile was
charged with delinquent act rather than felony, since act of burglary triggered forfeiture regardless of whether actor was adult or
juvenile. NRS 179.121, subd. 2.
OPINION
Respondent Jeremy R. (Jeremy), a minor, was arrested for burglary, and charged with
committing a delinquent act under NRS 62.040(1)(b).
1
Upon his arrest, the City of Sparks
Police Department seized the 19S1 Datsun pickup truck that Jeremy used in the crime,
and of which Jeremy was the registered owner.
__________

1
NRS 62.040(1)(b)(1) states:
1. Except as otherwise provided in this chapter, the court has exclusive original jurisdiction in
proceedings:
Department seized the 1981 Datsun pickup truck that Jeremy used in the crime, and of which
Jeremy was the registered owner. The City of Sparks filed a forfeiture complaint against
Jeremy's truck pursuant to NRS 179.121(2).
2

Jeremy and his mother moved to dismiss the forfeiture complaint pursuant to NRCP
12(b)(5). They asserted that conveyances are only subject to forfeiture when used in the
commission of a felony. Since Jeremy is a juvenile, he was charged with a delinquent act, not
a felony. Delinquent acts are not mentioned in the forfeiture statute. Therefore, Jeremy argues
that the vehicle used in the commission of his delinquent act cannot be subject to forfeiture.
[Headnote 1]
The district court granted Jeremy's 12(b)(5) motion on the basis that Jeremy committed a
delinquent act and not a felony. However, the forfeiture statute should focus on the act, not on
the person who committed the act. Although an owner who lacked knowledge of the illegal
use of his property need not forfeit the property, such is not the circumstance in this case.
Therefore, we now hold that if a delinquent act would have been charged as a felony had it
been committed by an adult, then the vehicle used in the delinquent act is subject to forfeiture
under NRS 179.121(2).
The district court found that forfeiture statutes should be strictly construed. See One 1978
Chev. v. County of Churchill, 97 Nev. 510, 512, 634 P.2d 1208, 1209 (1981) (since statute
requires consent to the illegal act, a co-owner who did not consent need not forfeit her
interest). However, the statute specifically included vehicles that are used in the commission
of a felony. NRS 205.060 defines burglary as a felony. Since Jeremy committed a burglary,
even a strict construction of the forfeiture statute does not require dismissal of this case.
[Headnote 2]
NRS 179.1171 defines forfeiture as a civil in rem proceeding which is subject to the
Nevada Rules of Civil Procedure. Since a forfeiture proceeding is in rem, it makes use of
the legal fiction that the vehicle committed the crime.
__________
. . . .
(b) Concerning any child living or found within the county who has committed a delinquent act. A
child commits a delinquent act if he:
(1) Commits an act designated a crime under the law of the State of Nevada except murder or
attempted murder or any related crime arising out of the same facts as the murder or attempted murder, or
violates a county or municipal ordinance or any rule or regulation having the force of law; . . .

2
NRS 179.121(2) provides in pertinent part:
Except as otherwise provided for conveyances forfeitable pursuant to NRS 453.301, all conveyances,
including aircraft, vehicles or vessels, which are used or intended for use during the commission of a
felony or a violation of NRS 202.287 or 465.070 to 465.085, inclusive, are subject to forfeiture. . . .
forfeiture proceeding is in rem, it makes use of the legal fiction that the vehicle committed the
crime. Therefore, the proceeding is against the res on the theory that the property is tainted.
U.S. v. Property at 4492 S. Livonia Rd., Livonia, 889 F.2d 1258, 1270 (2nd Cir. 1989) (the
entire property where drugs were sold was an instrumentality of the crime and must be
condemned); U.S. v. Tax Lot 1500, T.P. 38 So., Range 2 East, 861 F.2d 232 (9th Cir. 1988)
(property may be forfeited even in light of the Eighth Amendment's proportionality of
punishment rule). In this case, Jeremy knowingly used his Datsun in the commission of a
burglary. The fact that the juvenile court retained jurisdiction over the criminal proceeding
against Jeremy does not change the nature of the crime for which the vehicle was used.
The proceeds from forfeiture actions go toward crime prevention and help defray the costs
of court proceedings and law enforcement. Its purpose is remedial and not punitive.
Therefore, the state should be able to recover instrumentalities from crimes committed by
minors as well as adults.
While the action serves a remedial purpose, the forfeiture itself has an admittedly punitive
consequence to the owner who loses his property. We see no reason why juveniles need be
protected from this incidental adverse result. Our court system is more lenient with juveniles
because they lack life experience, and because youth is a formative time that should not be
spent paying for past crimes. However, the punitive result of forfeiture does not deprive the
former owner of time or of life experience. Instead, it plainly teaches that crime does not pay.
Accordingly, we reverse the dismissal of this action and remand the matter to district court
for further proceedings consistent with this opinion.
Mowbray, C. J., Springer and Steffen, JJ., concur.
I believe that the district court properly granted respondents' summary judgment motion
after determining that forfeiture under NRS 179.121(2) cannot be premised on a juvenile's
delinquent act. The language of NRS 179.121(2) unequivocally requires the commission of
a felony prior to the maintenance of a forfeiture action against a vehicle.
The City of Sparks argues that forfeiture actions under NRS Chapter 179 are civil in nature
and that the action proceeds in rem against the property and not its owner, thus making it
immaterial whether the vehicle was used by an adult in the commission of a felony or by a
juvenile in the course of a delinquent act.
In reversing, the majority concurs in what it acknowledges as a legal fiction. I cannot
join in this interpretation. The proper use of a legal fiction is to prevent injustice, according
to the maxim in fictione juris semper equitas existant.' Union Transit Co. v. Kentucky, 199
U.S. 194, 208 (1905), quoted in Graves v. Elliot, 307 U.S. 383, 390 (1939) (Hughes, C.J.,
dissenting). Holmes stated, [F]iction always is a poor ground for changing substantial
rights. Haddock v. Haddock, 201 U.S. 562, 630 (1906). Blackstone criticized forfeiture
based on the guilt of the property itself as a superstition inherited from the blind days of
feudalism. 1 W. Blackstone Commentaries *300. I believe that characterization of a forfeiture
action as civil or in rem has no bearing upon the NRS 179.121 prerequisite that a felony
must be committed. Here, at all times, the perpetrator stood accused of merely a delinquent
act.
In the absence of any statutory authority for extending forfeiture actions to juveniles
accused of delinquent acts, the district court's dismissal under NRCP 12(b)(5) for failure to
state a claim was proper. The majority opinion usurps a prerogative of the legislature that
could be easily accomplished by the addition of the words or delinquent act to NRS
179.121(2) following the word felony. Until the legislature takes such action, this court
should not extend the scope of the forfeiture statutes.
We have stated on numerous occasions that statutes imposing forfeiture should be strictly
construed. One 1978 Chev. v. County of Churchill, 97 Nev. 510, 512, 634 P.2d 1208, 1209,
(1981); Wilshire Insur. Co. v. State, 94 Nev. 546, 550, 582 P.2d 372, 375 (1978). I believe
the majority's departure from this tenet is incorrect and, accordingly, would uphold the district
court's dismissal.
____________
107 Nev. 205, 205 (1991) Riley v. State
BILLY RAY RILEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21240
March 28, 1991 808 P.2d 551
Appeal from a judgement of conviction and from a sentence of death. Eighth Judicial
District Court, Clark County; Joseph Pavlikowski, Judge.
Defendant was convicted in the district court of first degree murder and robbery and
sentenced to death, and he appealed. The supreme court held that: (1) evidence sustained the
conviction; {2) trial court's instructions were proper; and {3) prosecutor's improper
arguments did not require reversal.
107 Nev. 205, 206 (1991) Riley v. State
(2) trial court's instructions were proper; and (3) prosecutor's improper arguments did not
require reversal.
Affirmed.
Morgan D. Harris, Public Defender and Stephen J. Dahl, Deputy Public Defender, Clark
William T. Koot, Deputy District Attorney, Clark County, for Respondent.
1. Jury.
Criminal defendant has the constitutional right to trial by impartial jury but does not have the right to compel a bench trial.
2. Jury.
Even if State could not withhold consent to bench trial in capital prosecution for improper purpose. State's desire to avoid issues
otherwise not in contention would not constitute an improper consideration. NRS 175.011, subd. 1.
3. Homicide; Robbery.
Defendant's convictions for first degree murder with a deadly weapon and robbery were supported by evidence that he brought
murder weapon to the murder scene, that he killed the victim with the murder weapon, that the victim was a drug dealer, that defendant
was angry at drug dealers and evinced an inclination to rob them because they had not treated him fairly, and that defendant
maintained control of murder weapon and hid it in the desert after it was used to kill the victim.
4. Criminal Law.
District attorney has duty to refrain from stating facts in his opening statement that he cannot prove at trial.
5. Criminal Law.
It is inappropriate for prosecutor to make disparaging remarks pertaining to defense counsel's ability to carry out the required
functions of an attorney.
6. Criminal Law.
Prosecutor's misstatements of fact in opening argument as to location of one witness when shots were fired, as to whether
defendant was standing or sitting with the shotgun when she entered the room when murder occurred, as to the number of people
whom defendant had led out of the house at gunpoint, and as to lack of testimony of medical examiner were harmless, in view of the
evidence against defendant, as was prosecutor's assertion that defense counsel had taken facts out of context and was making stuff
up.
7. Homicide.
Homicide committed in the commission of a robbery is, by statute, first degree murder and therefore defendant could be convicted
of first degree murder whether or not he shot the victim. NRS 200.030, subd. 1(b).
8. Criminal Law.
Trial court properly rejected defendant's proposed instruction that jury should find defendant not guilty of murder if they had a
reasonable doubt as to whether defendant himself personally shot the victim where there was no evidence in
trial to support the defense theory that another person fired the fatal shot.
107 Nev. 205, 207 (1991) Riley v. State
doubt as to whether defendant himself personally shot the victim where there was no evidence in trial to support the defense theory that
another person fired the fatal shot.
9. Homicide.
Because the issue of guilt has been decided prior to penalty hearing in a capital case, it should not be addressed again by the jury.
NRS 175.552.
10. Criminal Law.
Instruction in penalty phase of capital murder case that verdict should never be influenced by sympathy did not violate defendant's
Eighth Amendment rights on the theory that it undermined jury's consideration of mitigating evidence, where the jury was directed to
consider mitigating circumstances and decide the appropriate penalty. U.S.C.A.Const. amend. 8.
11. Homicide.
More than one prior felony conviction can be used to establish more than one aggravating circumstance at penalty phase of capital
murder prosecution, even though defendant can claim only one mitigating circumstance for a clean record. NRS 200.033, subd. 2.
12. Criminal Law.
Defendant is not entitled to instruction when the law therein is substantially covered by another instruction given to the jury.
13. Criminal Law.
Instruction that the jury may impose a death sentence only if it finds that an aggravating circumstance has been established
beyond a reasonable doubt and that there are no mitigating circumstances sufficient to outweigh the aggravating circumstances
adequately informed the jury that the death sentence was not mandatory even if aggravating circumstances outweighed mitigating
circumstances. NRS 200.030, subd. 4(a).
14. Criminal Law.
Prosecutor's closing argument at penalty phase of capital murder prosecution that defendant had previously beaten a young woman
severely, that defendant was a killing machine, and that any juror serving the community could only return one just punishment,
the death penalty, was not so inflammatory as to render the death sentence fundamentally unfair.
15. Criminal Law.
Arguments concerning improbable rehabilitation and future killings are improper at penalty phase of capital murder prosecution
where the predictions are purely speculative.
16. Criminal Law.
Because defendant's past behavior indicated a violent character, it could support reasonable inference that he might pose a threat to
fellow inmates while incarcerated so that penalty phase argument of prosecutor which might have been interpreted to indicate that
murder defendant could pose a threat even if he were given a sentence of life imprisonment without parole was not improper.
OPINION
Per Curiam:
A jury convicted the appellant, Billy Ray Riley, of first degree murder with use of a
deadly weapon and robbery with use of a deadly weapon.
107 Nev. 205, 208 (1991) Riley v. State
murder with use of a deadly weapon and robbery with use of a deadly weapon. Thereafter,
Riley was sentenced to two consecutive terms of life without the possibility of parole and to a
sentence of death. For the reasons set forth below, we affirm the convictions and the
sentences imposed pursuant to those convictions, including the sentence of death.
THE FACTS
Albert Ramrod Bollin was killed by a single gunshot wound to the chest on October 1,
1989. The weapon used to kill Bollin was a sawed-off .410 caliber shotgun that belonged to
the appellant, Billy Ray Riley. Three persons, Darrell Lee Jackson, Kim Johnson, and Leotis
Gordon, were at or near the scene where Ramrod Bollin was shot, and all three testified at
trial.
Darrell Lee Jackson told the jurors that sometime after 8:30 a.m. on the morning of the
shooting, he and Ramrod Bollin arrived at Leotis Gordon's residence where they met Billy
Ray Riley. Riley asked Ramrod Bollin if he had any drugs. Then, all three men proceeded to a
bedroom-lounge located in the home.
According to Jackson, appellant Riley was emotional and angry about the treatment he had
received from drug dealers, and Riley said he was going to start robbing drug dealers who did
not treat him appropriately. Thereafter, Darrell Jackson and Ramrod Bollin gave some rock
cocaine to Billy Ray Riley, and Riley smoked the cocaine while Ramrod Bollin went into the
bathroom to take a shower. Jackson testified that while Ramrod Bollin was in the shower,
Riley began to ask about the money and drugs Ramrod Bollin has in his possession.
When Ramrod Bollin finished his shower, the three men went into Ramrod's room.
Ramrod Bollin sat on the dresser facing Riley who was sitting on a bed. Riley was holding
the shotgun and Jackson was standing near Ramrod toward the middle of the dresser. At that
point, Jackson testified that Billy Ray Riley killed Ramrod Bollin:
Q Was there some conversation between Billy Ray Riley and Ramrod at that
time?
A Yes. Billy asked him whose dope he had and Ramrod said it's none [sic]
mine. So Billy Ray say it's mine now, you know.
And Ramrod said, no, dude. You know you're going to have to kill me first, you
know.
And so Billy Ray asked him was he ready to die? He said, all right. Let me finish
taking this hit, you know.
And after heafter he smoked the dope, then he put down his pipe, he asked him
whether he was ready to die. He said yeah. So Billy Ray shot him.
107 Nev. 205, 209 (1991) Riley v. State
Kim Johnson also testified at trial. She said she was cooking in the kitchen when Ramrod
Bollin was shot. She told the jury that just before the shooting, she heard Ramrod say, if
you're going to kill me, just kill me. Then she heard the flick of a cigarette lighter, and
thereafter, a gunshot blast. Kim Johnson left the kitchen and walked toward the bedroom. She
arrived at the scene in time to see Ramrod sitting upright on the dresser, clutching his chest.
Riley was on the bed holding his shotgun.
At that point, Kim Johnson heard Ramrod Bollin say Leo and she exited towards Leotis
Gordon's room across the hall. According to Johnson, Leotis Gordon asked her what had
happened. Riley and Jackson also came into Gordon's bedroom and Riley told Johnson to go
to the front room of the house and get a container of shotgun shells.
Leotis Gordon also testified. He told the jurors that he was sleeping in his room and was
awakened by the gunshot blast. Gordon said he heard someone call Leo, run. Gordon
responded by asking, what's going on in there? Then Gordon said he proceeded to the
bedroom window, apparently to get out of the home. Before Gordon could leave, Riley
appeared in the doorway of the bedroom with the shotgun, and told Gordon to just hold it.
Gordon testified that Riley then told Jackson to get Ramrod Bollin's money and drugs.
Thereafter, Riley, Jackson, Johnson, and Gordon proceeded to the living room. While they
were in the home, Riley had the shotgun in his possession most of the time, but allowed
Jackson to hold the shotgun for approximately five minutes. Gordon said he was afraid for his
life when he asked Riley, why kill Ramrod' for nothing? He didn't have nothing. . . . [W]hy
don't you get L.L.' He's the guy that has something.
1
Riley apparently thought this question
over and then said, okay, we will get L.L.'
Riley and the others went to L.L.'s home, but L.L. did not answer his door so they left.
Carolyn Henry was nearby in her father's automobile. Riley and the others got into Henry's
car and Riley proceeded to drive the car to some convenience stores and then towards
Tonopah, Nevada. Riley apparently held the shotgun for most of this trip, but Darrell Lee
Jackson and Kim Johnson also handled it and, at one point, Jackson allegedly had the gun
on Leotis Gordon.
__________

1
At the penalty phase hearing, Gordon testified as follows:
A. I said, why rob Ramrod?' Ramrod' didn't have nothing. You should have robbed the guy he was
working for. He said, who was he working for? I said, I am not sure, but I think Elroy. And that led
to him thinking about Elroy.
107 Nev. 205, 210 (1991) Riley v. State
Eventually, Riley and the others returned to Las Vegas. While Riley left the group to visit
an individual named Andy, Carolyn Henry's god brother came upon the scene and told
those remaining in the car to get out. Riley returned to the group at this time, but did nothing
to stop the departure of the others.
Billy Ray Riley and Kim Johnson left together and walked out into the desert where Riley
hid the shotgun under some boards. Thereafter, the two were arrested and Johnson led the
police to the shotgun.
Riley was tried before a jury and convicted of robbery with the use of a deadly weapon and
first degree murder with the use of a deadly weapon.
2
After a penalty phase hearing, the
district court sentenced Riley to two consecutive terms of life without the possibility of parole
and to a sentence of death. This appeal followed.
GUILT PHASE ISSUES
Riley assigns error to the district court's refusal to allow a bench trial in this case. He also
contends there was insufficient evidence produced at trial to support his convictions, and he
argues that the prosecutor committed prejudicial misconduct during the proceedings. Finally,
Riley asserts the district court erred in instructing the jury. We will assess the merits of each
of these assignments of error separately.
A. Request to Waive Trial by Jury.
Prior to trial, Riley asked the court for a bench trial; however, the court refused this
request because the State would not stipulate to a non-jury trial. In Nevada, a criminal
defendant cannot waive his right to a jury trial unless the district court and the prosecutor
consent to the waiver. NRS 175.011(1) provides:
In a district court, cases required to be tried by jury must be so tried unless the
defendant waives a jury trial in writing with the approval of the court and the consent of
the state. A defendant who pleads not guilty to the charge of a capital offense must be
tried by jury.
Riley does not challenge the constitutionality of that portion of NRS 175.011(1), which
requires consent from the court and the prosecutor before a criminal defendant can waive the
right to a jury trial; rather, Riley argues his convictions and sentences should be reversed
because the State's decision not to stipulate to a non-jury trial was based upon an improper
consideration, to wit: the prosecutor did not want to afford Riley an opportunity to
challenge the constitutionality of mandatory jury trials in capital cases under NRS
175.011{1).3 We should note at this juncture that the record does not indicate why the
prosecutor would not stipulate to a non-jury trial.
__________

2
According to appellant Riley, the district attorney has either dismissed existing charges or has refused to
press charges against any of the other individuals who were in the home at the time of the shooting.
107 Nev. 205, 211 (1991) Riley v. State
wit: the prosecutor did not want to afford Riley an opportunity to challenge the
constitutionality of mandatory jury trials in capital cases under NRS 175.011(1).
3
We should
note at this juncture that the record does not indicate why the prosecutor would not stipulate
to a non-jury trial. In any event, we reject Riley's contentions on this issue.
[Headnotes 1, 2]
A criminal defendant has the constitutional right to a trial by an impartial jury, but he does
not have the right to compel a bench trial. Rains v. State, 83 Nev. 58, 60, 422 P.2d 541, 542
(1967). See also Singer v. United States, 380 U.S. 24 (1965). The State was within its rights
when it refused to stipulate to Riley's request for a non-jury trial.
4

B. Sufficiency of the Evidence.
Next, in assessing the sufficiency of a jury's conclusions regarding issues of fact in a
criminal action, this court is constrained to view the facts in a manner most favorable to the
State; thus, this court asks whether any rational trier of fact could have found the elements of
the crime involved beyond a reasonable doubt. Koza v. State, 100 Nev. 245, 250, 681 P.2d
44, 47 (1984). Riley argues there was insufficient evidence produced at trial to support his
guilty convictions. We disagree.
[Headnote 3]
First, it is uncontradicted that the murder weapon belonged to Riley and that Riley brought
the weapon to Leotis Gordon's home on the day in question. Darrell Lee Jackson testified at
trial that he witnessed Riley kill Ramrod Bollin with the sawed-off shotgun.
5
Kim Johnson
testified that after the shooting, she saw Riley cradling his gun while Ramrod Bollin was
"sitting" on the dresser with the gunshot wound in his chest.6 Riley seemed to have a
motive: he was angry at drug dealers, and evinced an inclination to rob them because
they were not treating him fairly.
__________

3
In support of this contention, Riley cites Commonwealth v. Maxwell, 459 A.2d 362 (Penn. 1983). In
Maxwell, the Pennsylvania Superior Court reversed a conviction on two counts of robbery because the trial court
refused to allow the defendant to waive the right to a jury trial. The Pennsylvania court concluded the refusal
was based upon an improper considerationthe trial judge was afraid his courtroom might sit empty for a week
if the request to waive a jury trial was granted. Id. at 364-365.

4
We should also note that this court has not adopted the improper consideration doctrine espoused by
Riley, and even if it did, the State's desire to avoid issues otherwise not in contention would not constitute an
improper consideration.

5
Riley asks this court to reject Darrell Lee Jackson's testimony, asserting Jackson testified against Riley
because it was Jackson who actually murdered the victim; however, we conclude there is substantial evidence in
the record to support the jury's verdict to the contrary. See Koza, supra. Further, we conclude there is no
evidence in the recordother than the fact that Jackson was in the room at the time of the murder, to indicate
Jackson killed Ramrod Bollin.
107 Nev. 205, 212 (1991) Riley v. State
cradling his gun while Ramrod Bollin was sitting on the dresser with the gunshot wound in
his chest.
6
Riley seemed to have a motive: he was angry at drug dealers, and evinced an
inclination to rob them because they were not treating him fairly. The evidence further
indicates that Riley's acts were premeditated: Riley discussed what he was going to do to the
victim before killing him, and allowed Ramrod Bollin to take one last hit of cocaine before
he was shot. Finally, Riley generally maintained control of the murder weapon and hid it in
the desert after it was used to kill Ramrod Bollin. We conclude there was ample evidence
produced at the trial to support Riley's convictions.
7

C. Statements of the Prosecutor.
Next, Riley argues the prosecutor misstated facts in his opening statements that were not
shown at the subsequent trial. Riley also assigns error to misstatements of fact made by the
prosecutor during closing arguments and contends the prosecutor maligned defense counsel's
credibility during summations.
[Headnote 4]
1. Misstatements of fact. In general, the district attorney has a duty to refrain from stating
facts in his opening statement that he cannot prove at trial. Garner v. State, 78 Nev. 366, 374
P.2d 525 (1962); State v. Olivieri, 49 Nev. 75, 78, 236 P. 1100, 1101 (1925). In his opening
statements, the prosecutor told the jury that Kim Johnson was in the hallway heading
towards the bedroom when she heard the shotgun discharge its pellets.
__________

6
We conclude this is significant: the medical examiner testified that Ramrod Bollin's heart was destroyed
when he was shot, and that Bollin would have lapsed into unconsciousness within twelve to fifteen seconds
thereafter. The fact that Ramrod Bollin was still sitting up and clutching his chest when Kim Johnson came into
the room would indicate that Riley was holding the murder weapon within twelve to fifteen seconds after the
shooting.

7
Nonetheless, Riley argues he could not have possibly killed Ramrod Bollin. At trial, Jackson testified that
Riley was sitting on the bed with the gun at his midsection when he discharged the weapon. Ramrod Bollin was
sitting some inches higher on the dresser and the gunshot pellets entered his chest, slightly to the left, a few
inches above the nipple. The gunshot blast did not exit through Ramrod Bollin's back. Riley argues these facts
mandate a finding that the trajectory of the wound through the victim's body followed an upward angle; however,
the medical examiner testified that the trajectory ran essentially in a horizontal direction through the victim's
body (if the victim was in a standing position).
The State argues that if Ramrod Bollin was leaning forward and to his right, the trajectory of the wound
through Bollin's body would be consistent with Jackson's testimony. We have carefully considered the facts
presented in the entire record and the reasonable inferences drawn therefrom. We cannot conclude that the
evidence compels a finding that Riley could not have murdered Ramrod Bollin; rather, the evidence in the record
indicates the contrary beyond a reasonable doubt.
107 Nev. 205, 213 (1991) Riley v. State
that Kim Johnson was in the hallway heading towards the bedroom when she heard the
shotgun discharge its pellets. At trial, Kim Johnson testified that she was in the kitchen, not in
the hallway, when she heard the gunshot. Also, the prosecutor told the jurors that Kim
Johnson saw Riley standing with the shotgun when she entered the room; however, at trial,
Kim Johnson told the jury Riley was sitting on the bed with the shotgun when she entered the
room. Further, in his opening statements, the prosecutor asserted Riley led everyone out of
the house at gunpoint; however, the evidence produced at trial indicated Riley only led Leotis
Gordon out of the house at gunpoint.
Likewise, in his summations, the prosecutor argued the medical examiner had testified that
it was not possible, with any degree of scientific certainty, to analyze the trajectory of the
wound through the victim's body; we could not find such testimony in our review of the
record. Therefore, the prosecutor did misstate certain facts in opening statements and
summation arguments.
[Headnote 5]
2. Disparaging remarks. It is also inappropriate for a prosecutor to make disparaging
remarks pertaining to defense counsel's ability to carry out the required functions of an
attorney. McGuire v. State, 100 Nev. 153, 157-158, 677 P.2d 1060, 1064 (1984). Riley argues
the prosecutor disparaged defense counsel during closing arguments when the prosecutor, in
apparent disagreement with defense counsel's recitation of the facts, told the jury that defense
counsel had taken facts out of context and was making stuff up.
[Headnote 6]
3. Harmless error. Taken as a whole, we do not believe the preceding misstatements of
fact and comments of the prosecutor warrant a reversal of Riley's conviction. In Flanagan v.
State, 104 Nev. 105, 754 P.2d 836 (1988), we reasoned that if a guilty verdict was free from
doubt, even aggravated prosecutorial remarks will not justify reversal. Id. at 107, 754 P.2d at
837. Despite Riley's contentions to the contrary, we find overwhelming evidence in the record
to support the jury's verdicts in this case. Given the strength of the evidence presented by the
State at the trial, we hold that the prosecutor's conduct does not warrant a reversal of those
verdicts.
D. Guilt Phase Jury Instructions.
Next, Riley argues the district court improperly gave a jury instruction at the conclusion of
the guilt phase proceedings. He also argues the district court erred when it refused to give
an instruction proffered by the defense.
107 Nev. 205, 214 (1991) Riley v. State
also argues the district court erred when it refused to give an instruction proffered by the
defense.
1. Guilt Phase Jury Instruction No. 19. Riley assigns error to the statutory reasonable
doubt instruction that was given to the jury in Jury Instruction No. 19, asserting the same to
be unconstitutional under the holding of Cage v. Louisiana, 111 S.Ct. 328 (1990). See NRS
175.211. We have recently ruled otherwise, however, in our decision styled Lord v. State, 107
Nev. 28, 806 P.2d 548 (1991). Accordingly, we reject appellant's contentions on this issue.
2. Appellant's Proposed Jury Instruction. A criminal defendant is entitled to a jury
instruction if the instruction goes to the defendant's theory of the case and is supported by
some evidence produced at trial, no matter how weak or even incredible the evidence appears
to be. Alder v. State, 95 Nev. 339, 594 P.2d 725 (1979); Hooper v. State, 95 Nev. 924, 604
P.2d 115 (1979); Froggatt v. State, 86 Nev. 267, 467 P.2d 1011 (1970). Riley argues Darrell
Lee Jackson murdered Ramrod Bollin and then quickly handed the shotgun to Riley who was
seen holding the weapon within seconds after Ramrod Bollin was shot.
In light of this theory, Riley argues the district court improperly rejected the following
instruction proffered by the defense:
If you have a reasonable doubt as to whether defendant himself personally shot the
victim, you must find the defendant not guilty of murder.
We conclude Riley's contentions on this issue are without merit.
[Headnote 7]
First, this proffered jury instruction is an incorrect statement of the law. A homicide
committed in the commission of a robbery is, by statute, first degree murder. NRS
200.030(1)(b). The homicide in this case was committed in the commission of a robbery;
therefore, Riley could be convicted of first degree murder whether he shot the victim or not.
[Headnote 8]
Second, there was no evidence produced at the trial to support a defense theory that Darrell
Lee Jackson fired the shotgun pellets into Ramrod Bollin's chest. Therefore, the district court
properly rejected this instruction.
PENALTY PHASE ISSUES
Next, Riley argues that the district court erred in giving, and refusing to give, various
instructions at the conclusion of the penalty phase hearings. Riley also contends his sentence
of death should be overturned because of statements made by the prosecutor during
penalty phase summations.
107 Nev. 205, 215 (1991) Riley v. State
should be overturned because of statements made by the prosecutor during penalty phase
summations.
A. Penalty Phase Jury Instructions.
First, Riley assigns error to four penalty phase instructions given to the jury. He also
argues the district court improperly rejected another.
1. Penalty Phase Jury Instruction No. 7. The district court gave Jury Instruction No. 7 at
the conclusion of the penalty phase. This instruction told the jury:
In your deliberation you may not discuss or consider the subject of guilt or
innocence of the defendant, as that issue has already been decided. Your duty is
confined to a determination of the punishment to be imposed.
Riley argues this instruction was prejudicial because it precluded the jury from weighing the
evidence of guilt as a possible mitigating factor. We disagree.
[Headnote 9]
A penalty hearing in a capital case is conducted after a defendant is found guilty of first
degree murder. NRS 175.552. The issue of guilt decided, it should not be addressed again by
the jury. Further, while the jury was not at liberty to reevaluate their guilty verdicts, they were
nonetheless instructed that they could consider the evidence produced at trial in deciding
whether the death penalty was appropriate.
8
Accordingly, the district court did not err when
it gave Jury Instruction No. 7 at the conclusion of the penalty phase hearing.
[Headnote 10]
2. Penalty Phase Jury Instruction No. 24. Next, Riley argues the district court erred when
it gave Jury Instruction No. 24, which informed the jury that [a] verdict may never be
influenced by sympathy. . . . Specifically, Riley argues this instruction violated his Eighth
Amendment rights because it undermined the jury's consideration of mitigating evidence. We
disagree.
This court has previously ruled that it is not error to instruct the jury not to be influenced
by sympathy if the court also instructs the jury to consider mitigating circumstances. Hogan v.
State, 103 Nev. 21
__________

8
Jury Instruction No. 4 informed the jury as follows:
The jury is instructed that in determining the appropriate penalty to be imposed in this case that it may
consider all evidence introduced at both the penalty hearing phase of these proceedings and at the trial of
this matter.
107 Nev. 205, 216 (1991) Riley v. State
State, 103 Nev. 21, 732 P.2d 422 (1987), cert. denied 484 U.S. 872 (1987). See also Biondi v.
State, 101 Nev. 252, 699 P.2d 1062 (1985); Nevius v. State, 101 Nev. 238, 699 P.2d 1053
(1985). Since the jury in this case was directed to consider mitigating circumstances in
deciding the appropriate penalty, the district court did not err when it gave Jury Instruction
No. 24 at the conclusion of the penalty phase proceedings.
3. Penalty Phase Jury Instruction No. 14. Next, the defendant argues the district court
erred when it permitted each of the defendant's prior felony convictions to be alleged as
separate aggravating circumstances in Jury Instruction No. 14. Specifically, Riley contends
NRS 200.033(2) should be construed by this court to preclude more than one aggravating
circumstance, regardless of the number of applicable felonies previously committed.
9
We
disagree.
[Headnote 11]
In general, [a] defendant's character and record are relevant to the jury's determination of
the appropriate sentence for a capital crime. Pellegrini v. State, 104 Nev. 625, 630, 764 p.2d
484, 488 (1988). Accordingly, a murder is aggravated if it is committed by an individual
previously convicted of a felony involving the use or threat of violence to the person of
another. NRS 200.033(2). Such a conviction evinces a propensity for violence and is relevant
to a determination of the appropriate sentence; more than one such conviction is likewise
relevant.
Nonetheless, Riley argues NRS 200.033(2) should be construed to only allow one
aggravating circumstance, regardless of the number of violent felonies previously committed,
because a defendant can only claim one mitigating circumstance for a clean record. Riley
further argues the language of NRS 200.033(2) precludes more than one aggravating
circumstance. We cannot agree.
There is no logic in a conclusion that an individual who commits numerous violent
felonies be categorized with an individual who has only committed one; this rationale could
subject persons with less violent character traits to a disproportionate sentence, and it could
undermine the goal and policy of NRS 200.033(2). Rather, the logical interpretation of NRS
200.033(2), in light of its underlying purpose, shows a legislative intent to allow multiple
aggravating circumstances under the statute.
__________

9
The only circumstances by which murder of the first degree may be aggravated are:
. . . .
2. The murder was committed by a person who was previously convicted of another murder or of a
felony involving the use or threat of violence to the person of another.
107 Nev. 205, 217 (1991) Riley v. State
intent to allow multiple aggravating circumstances under the statute. Accordingly, if the
defendant can be prosecuted for each crime separately, each can be used as an aggravating
circumstance. See, e.g., Bennett v. State, 106 Nev. 135, 787 P.2d 797 (1990).
4. Proposed Penalty Phase Jury Instruction D-1. At the close of the penalty hearing,
Riley proposed an instruction that would have informed the jury that a death sentence is not
mandatory, even if aggravating circumstances outweigh mitigating circumstances. See NRS
200.030(4)(a); see also Bennett, 106 Nev. at 144, 787 P.2d at 803. Riley contends he was
unfairly prejudiced by the district court's election not to give his proffered jury instruction.
We disagree.
[Headnotes 12, 13]
Riley's proffered instruction was consistent with our prior rulings; nonetheless, a defendant
is not entitled to an instruction when the law therein is substantially covered by another
instruction given to the jury. Ford v. State, 99 Nev. 209, 660 P.2d 992 (1983). Jury
Instruction No. 12 informed the jury as follows:
The jury may impose a sentence of death only if it finds an aggravating circumstance
has been established beyond a reasonable doubt and further finds that there are no
mitigating circumstances sufficient to outweigh the aggravating circumstances found.
Otherwise, the punishment imposed shall be imprisonment in the State Prison for
life with or without the possibility of parole.
(Emphasis added.) While may can be interpreted to mean shall, if the context of the word
requires as much, generally the word may is not to be construed to create a requirement, but
rather, is construed to signify the ability to choose or the power to act. See Gyler v. Mission
Insurance Company, 514 P.2d 1219, 1220 (Cal. 1973).
We conclude the word may in the context of Jury Instruction No. 12 would be
commonly understood by reasonable jurors as a permissive word that does not mandate a
particular action. Thus, we rule that the jury in this case was properly informed that the
imposition of a death sentence was not compulsory, even if aggravating circumstances
outweighed mitigating circumstances.
B. Statements of the Prosecutor.
In Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985), we concluded that certain
comments made by a prosecutor in favor of a death penalty, particularly comments that
address unknown future events, the costs of confinement, or the prosecutor's personal belief
that the defendant deserves to die, were inappropriate. "Comments of this sort divert the
jury's attention from its proper purpose, which is the determination of the proper
sentence for the defendant before them, based upon his own past conduct." Id. at 47S,
705 P.2d at 1129.
107 Nev. 205, 218 (1991) Riley v. State
sonal belief that the defendant deserves to die, were inappropriate. Comments of this sort
divert the jury's attention from its proper purpose, which is the determination of the proper
sentence for the defendant before them, based upon his own past conduct. Id. at 478, 705
P.2d at 1129. Riley argues his death sentence should be reversed because of statements made
by the prosecutor during penalty phase summations to the jury. We disagree.
[Headnote 14]
1. Comments made without objection. During summations, the prosecutor discussed
Riley's prior conviction for battery with use of a deadly weapon. The prosecutor told the jury,
[i]n June of 1989 this defendant armed himself with a fence post, a metal fence post three
and a half feet long and he beat a young woman with that fence post so severely that . . . a
jury . . . convicted him of battery with a deadly weapon. (Emphasis added.) Riley argues the
prosecutor should not have characterized the beating as a severe beating because the victim
was not hurt badly.
10
The prosecutor also referred to Riley as a killing machine in
summation arguments; Riley argues this was improper as well. Finally, Riley argues that the
prosecutor improperly appealed to the jury's sense of community responsibility when he said,
[u]nder these circumstances any juror in serving their community can only return one just
punishment: the death penalty.
As a general rule, to entitle a defendant to have improper remarks of counsel considered
on appeal, objections must be made to them at the time, and the court must be required to rule
upon the objection, to admonish counsel, and instruct the jury. State v. Hunter, 48 Nev. 358,
367, 232 P. 778, 781 (1925). See also Mears v. State, 83 Nev. 3, 442 P.2d 230 (1967); State
v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948). First, we note that defense counsel failed to
object to any of the preceding comments. Therefore, we are not required to address the merits
of appellant's belatedly raised contentions on this issue.
Nonetheless, we have carefully reviewed the prosecutor's remarks. We conclude that none
are so inflammatory as to render Riley's death sentence fundamentally unfair. See, e.g.,
Flanagan, 104 Nev. at 112, 754 P.2d at 840.
2. Inference that Riley might continue to be a threat while incarcerated. Finally, Riley
assigns error to the following statement made by the prosecutor during his penalty phase
summation: Let me direct myself specifically to some comments made by counsel.
__________

10
We should note that our review of the record on this issue leads us to conclude that the beating was, in
fact, properly characterized as a severe beating.
107 Nev. 205, 219 (1991) Riley v. State
Let me direct myself specifically to some comments made by counsel. I will start
with Mr. Martin.
He said something like life without is appropriate because it means just that and he
would never be a threat to anyone again. I want you to use your common sense. Trials
would take forever if I proved everything. Prisons have other prisoners. Prisons have
prison guards. Prisons have civilian employees, doctors as yourself
MR. DAHL: I'm going to object.
THE COURT: Sustain the objection.
Riley argues the preceding constitutes reversible error because it implies Riley might still be a
threat while incarcerated. It is unclear what the prosecutor was about to say prior to the
objection, but even if the jurors interpreted the prosecutor's comment to indicate Riley could
pose a threat if he were incarcerated, we cannot find reversible error.
[Headnotes 15, 16]
Generally, arguments concerning improbable rehabilitation and future killings are
improper where the predictions are purely speculative. See, e.g., Collier, 101 Nev. at 478, 705
P.2d at 1129; see also Flanagan, 104 Nev. at 108-109, 754 P.2d at 837-838 (1988). However,
[w]hen there is evidence . . . of a defendant's past conduct which supports a reasonable
inference that even incarceration will not deter the defendant from endangering others' lives, a
prosecutor is entitled to ask the jury to draw that inference. Haberstroh v. State, 105 Nev.
739, 741, 782 P.2d 1343, 1344 (1989). Riley's past behavior indicates a violent character that
could support a reasonable inference that he might pose a threat to fellow inmates while
incarcerated.
CONCLUSION
In sum, upon careful review of the record we conclude that Riley's sentence of death was
not the result of passion, prejudice or any arbitrary factor, nor was the sentence excessive in
light of the crime committed and the individual characteristics and background of the
defendant. Therefore, we affirm in all respects the judgments of conviction and sentences
imposed thereon.
___________
107 Nev. 220, 220 (1991) Riley v. State
BILLY RAY RILEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21240
March 28, 1991 808 P.2d 560
Response of Deputy Public Defender Stephen J. Dahl to order of this court to show cause
why sanctions should not be imposed against him.
Supreme court issued order to show cause why sanctions should not be imposed against
deputy public defender for his failure to comply with briefing schedule. The supreme court,
Rose, J., held that failure of deputy public defender, who was defending capital murder
defendant, to meet briefing schedule did not warrant sanctions.
No sanctions imposed.
Young, J., and Mowbray, C. J., dissented.
County for Appellant.
William T. Koot, Deputy District Attorney, Clark County, for Respondent.
Attorney and Client.
Failure of deputy public defender, who was defending capital murder defendant, to meet briefing schedule did not warrant
sanctions; attorney informed court of time problems he was encountering and did not cause an egregious delay.
OPINION
This case involves the conviction of Billy Ray Riley for first degree murder with use of
deadly weapon and a sentence of death. The issue at hand is whether this court should impose
sanctions against Riley's attorney, Deputy Public Defender Stephen J. Dahl, for failing to
comply with the briefing schedule. We conclude that sanctions should not be imposed.
On July 25, 1990, this court entered an order setting forth a briefing schedule in
accordance with SCR 250(IV)(H). Pursuant to that schedule, appellant's opening brief was
due to be filed on or before August 30, 1990. The order admonished counsel that, pursuant to
SCR 250(IV)(H), sanctions may be imposed for failure to comply with this schedule."
107 Nev. 220, 221 (1991) Riley v. State
failure to comply with this schedule. On August 3, 1990, Dahl moved for reconsideration of
the order of July 25, 1990, or, in the alternative, for leave to withdraw from defending Billy
Ray Riley. On August 8, 1990, this court denied the motion, concluding that counsel did not
lack the time, ability, resources and commitment to comply with the briefing schedule set
forth in the prior order.
On August 30, 1990, Dahl moved for another extension of time within which to file the
opening brief. On September 13, 1990, this court denied the motion and directed Dahl to file
the opening brief within five working days. The brief was therefore due on or before
September 20, 1990. On September 20, 1990, Dahl submitted a partial opening brief an a
motion requesting a 30-day extension of time within which to file a completed opening brief.
In support of the motion, he detailed the various steps which he and the Public Defender's
Officer had taken to complete the opening brief since entry of the order of July 25, 1990,
setting forth the briefing schedule. These steps included the assignment of a deputy to assist
Mr. Dahl in this appeal, the reorganization of the capital murder team, and Dahl's personal
efforts to complete the brief after the deputy assisting him was interrupted in her efforts by
her delivery of twins.
Mr. Dahl represented that during the 35-day period between August 13 and September 17,
1990, he worked a total of 22 days and spent almost 81 hours (44.7 percent of his time)
working on the Riley appeal. The briefing was further delayed because Dahl spent 28.5 hours
instituting a federal suit to enjoin the capital case guidelines promulgated by our court which
require, among other things, strict briefing schedules. Dahl also contended that he had
expected the appeal to be governed by the old rules and practice under which he had until
September 19, 1990, before he was required to seek any extensions of time from this court.
He further argued that SCR 250 does not apply to the Riley appeal, and that the Clark County
Public Defender's Office had no notice that it would be governed by SCR 250. He indicated
that because of this lack of notice, the Public Defender's Office had not commenced work on
the appeal as of July 25, 1990, the date of this court's order setting a briefing schedule, and
that this court's order shortened the time for preparation of the opening brief to 30 days.
On October 15, 1990, this court entered an order stating that Dahl had made a sufficient
effort to comply with this court's prior orders. We returned the partial opening brief unfiled,
and we granted Dahl 10 days to file the opening brief. On October 22, 1990, Dahl filed a third
motion for an extension of time, stating that anticipating either a prompt response to the
September 20 motion, or 30 days from an order granting the application, he ceased work
on the opening brief in the instant case and devoted his efforts to working on other
long-pending matters.
107 Nev. 220, 222 (1991) Riley v. State
motion, or 30 days from an order granting the application, he ceased work on the opening
brief in the instant case and devoted his efforts to working on other long-pending matters.
On November 5, 1990, this court entered an order granting Dahl until November 13, 1990,
to file the opening brief. The order further gave Dahl 15 days to show cause why this court
should not impose sanctions against him for his dilatory conduct. Dahl filed a response on
November 13, 1990, requesting that the one-signature order of November 5, 1990, be
reconsidered by the entire court. He further submitted his affidavit setting forth reasons why
he was not dilatory in the instant case, and why sanctions should not be imposed, noting that
his motion of September 20, 1990, requested an extension of time or, in the event this court
determined that he has not represented Riley adequately, for leave to withdraw from the case.
Dahl stated that the latter request rendered uncertain his status as Riley's attorney pending this
court's ruling on the request. Under these circumstances, Dahl felt he could not continue
working on the opening brief at the expense of other important pressing matters, including a
petition for rehearing, a reply brief, two death penalty hearings and various related motions,
interviews with his clients at the Ely State Prison and a case involving the murder of an FBI
agent. Dahl was unable to complete preparation of the opening brief within six days of
October 19, 1990, the date on which he received this court's order of October 15, 1990.
Dahl had other important matters which had been put on hold and awaited his attention.
As team chief on the capital murder team, he had many tasks, including the preparation of
appeals and assisting other deputies with trial preparation and motions. Each team trial deputy
has at least six death penalty cases at a time. There is no indication that Dahl purposely
violated our briefing orders or could have complied by using due diligence. Dahl gave
compelling reasons for the delays in this case, and there was no willful failure to comply with
our briefing rules.
The dissenting opinion provides a list of cases to establish that the system is flawed. We
agree that there have been unconscionable delays in many death penalty cases. However, the
facts of those cases are distinctly different from the case at hand. Riley's notice of appeal was
filed on April 16, 1990, and today, March 28, 1991, we issue our opinion affirming his
conviction and death sentence. This court has done everything possible to prevent such
delays, including the adoption of the death penalty case guidelines; and we do share the
frustration expressed by the dissenting opinion relative to the inability to finalize the death
penalty cases. However, the delays in processing death penalty cases occur far more
frequently and involve much more time in the federal court system than those generally
encountered in Nevada courts.
107 Nev. 220, 223 (1991) Riley v. State
more frequently and involve much more time in the federal court system than those generally
encountered in Nevada courts.
We see no reason to conclude that because Dahl could not meet the strict briefing,
schedule, he is the sole and primary person at fault. Rather, it is more likely the fault of the
system. The Public Defender should assign sufficient personnel to the appellate division to
meet the briefing requirements of this court. And, if the Public Defender does not have an
adequate number of attorneys, it is the county's obligation to provide them. It would be
inappropriate to impose sanctions on a deputy public defender who has informed us of his
problems and has caused no egregious delays. Therefore, we conclude that he was not
dilatory in his professional duties in this matter, and sanctions will not be imposed.
Springer and Steffen, JJ., concur.
Young, J., with whom Mowbray, C. J., joins, dissenting:
I respectfully dissent. Nothing engenders more criticism of our judicial system than delays
in processing capital cases. Fifty-eight inmates are on Nevada's death row. No person under
capital sentence in Nevada has been executed involuntarily since 1961. Editorial comments
mirror the frustration of our citizens. For instance, the Las Vegas Review-Journal on
September 1, 1989, stated that if the death penalty is to have any real deterrent effect, it
should be carried out in a more timely fashion. Las Vegas Review-Journal, Sept. 1, 1989, at
10B, col. 1.
The Las Vegas Sun, on October 6, 1989, observed, Plans to speed up appeals deserve our
consideration. Las Vegas Sun, Oct. 6, 1989, at 6B, col. 1. The Reno Gazette Journal, on
January 11, 1990, said, Efforts to speed up death penalty cases are welcome. . . . The time
has come to begin to change the system. Reno Gazette Journal, Jan. 11, 1990, at 9A, col. 1.
Appellant Riley, hardly a stranger to the criminal justice system, had four prior felony
convictions. Before an eyewitness, he used a sawed-off shotgun to murder the victim while
robbing him of drugs and money. Only a two-day trial was required for the guilt phase and
one for the penalty phase. On March 20, 1990, appellant was sentenced to death pursuant to
the jury verdict.
Our statutes provide for an automatic appeal in capital cases after judgment of conviction.
Approximately four months later, no opening brief having been received, our court entered an
order, on July 25, setting a briefing schedule. We directed that appellant's opening brief be
filed by August 30, 1990. Counsel was admonished that sanctions may be imposed for a
failure to comply with this schedule.
107 Nev. 220, 224 (1991) Riley v. State
The Clark County Public Defender, appellant's counsel, moved for reconsideration of the
order of July 25, or, in the alternative, for leave to withdraw as counsel. Our court denied the
motion on August 8, noting that we were not persuaded that the Clark County Public
Defender's office lacked the time, ability, and resources to comply with the briefing schedule
in the order.
1

On the August 30 deadline, the Public Defender's office moved for more time to file the
brief. Our court denied the motion for an extension on September 13 and directed counsel to
file the opening brief before September 20.
On September 20, the Public Defender's office submitted a partial opening brief, together
with still another motion for a thirty-day extension (to October 22) to file a completed
opening brief. On October 15, our court entered an order implying that, while counsel's
efforts were somewhat less than heroic, there had been some effort to comply with the
briefing schedule and accordingly granted appellant until October 25, 1990 (nearly seven
months after sentencing) to file the brief.
On October 22, appellant filed yet a third motion for an extension. In support thereof, the
public defender described the effort to complete the opening brief after the September 20
motion (second motion for an extension):
Anticipating either a prompt response to the application/motion or thirty days from an
order granting the application [counsel] ceased work on the opening brief in the instant
case and devoted his efforts to working on other long-pending matters. . . .
Upon receiving this court's order of October 15, 1990, granting appellant three more days
than requested, counsel, for some reason not clearly articulated, ceased working on the brief,
and later discovered he was unable to complete the brief within the additional time allotted
and sought more time.
On November 2, our court entered an order granting appellant more timeuntil November
13within which to file an opening brief and also stated:
Nevertheless, in light of this court's repeated admonitions throughout the history of this
appeal concerning the expeditious completion of briefing, we conclude that counsel's
performance demonstrates a lack of diligence in complying with the briefing schedule.
Accordingly, counsel shall have fifteen {15) days from the date of this order within
which to show cause why this court should not impose sanctions against counsel for
counsel's dilatory conduct.
__________

1
During the year 1990, the Clark County Public Defender's office has an annual budget of approximately
$4.5 million with an authorization for thirty-five attorneys.
107 Nev. 220, 225 (1991) Riley v. State
fifteen (15) days from the date of this order within which to show cause why this court
should not impose sanctions against counsel for counsel's dilatory conduct.
The public defender filed a response on November 13, 1990, asking that the one-signature
order of November 2 be reconsidered by the entire court. Counsel also submitted an affidavit
setting forth reasons why counsel has not been dilatory in the instant case, and why sanctions
should not be imposed. Specifically, counsel noted that his motion of September 20, 1990,
requested an extension of time or, in the event this court determined that counsel had not
represented appellant adequately, leave to withdraw from representation of appellant. Counsel
stated, for reasons not set forth in his affidavit, that somehow this request rendered uncertain
his status as appellant's attorney pending a ruling on the request.
Counsel reiterated, as detailed in the motion of September 20, 1990, the various steps
taken after the July 25 order to expedite completion of the opening brief. These steps included
assignment of a deputy to assist Mr. Dahl in this appeal, the reorganization of the capital
murder team, and Mr. Dahl's personal efforts to complete the briefing after the deputy
assisting him was interrupted by her delivery of twins.
Mr. Dahl indicated that, between August 13 and September 17, he worked twenty-two
days on this appeal, including thirty minutes on one Saturday and sixty minutes on another.
The briefing was further delayed because counsel spent twenty-eight and one-half hours
instituting a federal suit to enjoin use of capital case guidelines promulgated by our court
which require, among other things, strict briefing schedules.
The filing of appellant's opening brief on November 26, 1990, nearly eight months after
the sentence of death was imposed, does not commend itself as a demonstration of diligence.
2
Most capital case appeals in Nevada are handled through the public defender system.
__________

2
The Clark County Public Defender's lack of diligence in briefing this appeal is further demonstrated by the
circumstances surrounding the filing of appellant's supplemental brief. Specifically, on February 28, 1991,
twenty-one days after the completion of briefing and thirteen days prior to the date scheduled for oral argument,
Clark County Deputy Public Defender Stephen Dahl moved for leave to file a supplemental brief addressing
the applicability of the recently decided opinion of Cage v. Louisiana,
------
U.S
------
, 111 S.Ct. 328 (1990),
to this matter. We note, significantly, that the Cage decision was issued on November 13, 1990, and that
attorney Dahl, in the matter of Canape v. State, Supreme Court Docket No. 20461, similarly moved for leave to
file a supplemental brief raising the identical issue on February 12, 1991. Attorney Dahl offered no explanation,
however, why he waited in the instant appeal until only thirteen days prior to the date set for oral argument to
move for leave to file a supplemental brief.
107 Nev. 220, 226 (1991) Riley v. State
Most capital case appeals in Nevada are handled through the public defender system.
Having reviewed the chronology of almost all capital cases since 1979, it seems evident that
the system is flawed. In the case of Robert Ybarra, who brutally raped a young girl in White
Pine County before pouring gas on and igniting her, 533 days elapsed before the trial record
was even filed in our court. Thereafter, the public defender took 300 days to file the opening
brief. In the Priscilla Ford case, where defendant was convicted of killing six people on a
busy Reno sidewalk on Thanksgiving Day, 1980, it took two years for the trial record to be
filed with our court. Two more years passed before the opening brief was filed by the public
defender's office. Although these are two of the more egregious cases, delays abound in
nearly every case. If the criminal justice system in capital cases is to reflect the will of our
citizens, to provide a fair trial without seemingly eternal delays, our court must exercise its
supervisory powers and require that lawyers, who are officers of the court, diligently
discharge obligations in capital cases. While the majority may find the performance of the
Clark County Public Defender's office to be tolerable in this case, I do not and would favor
imposition of sanctions.
If the present delays, which seem almost endemic, continue, the Legislature, which is
justifiably concerned, may want to consider whether public accountability would be improved
by replacing the present system of appointing public defenders with an elective process.
Accordingly, I would favor the imposition of suitable sanctions.
____________
107 Nev. 226, 226 (1991) Hilton Hotels v. Butch Lewis Productions
HILTON HOTELS CORPORATION, a Delaware Corporation, Appellant/Cross-Respondent,
v. BUTCH LEWIS PRODUCTIONS, INC., BUTCH LEWIS, MICHAEL SPINKS,
Respondents/Cross-Appellants, DYNAMIC DUO, INC., DENNIS RAPPAPORT and
GERRY COONEY, Respondents.
No. 20458
April 3, 1991 808 P.2d 919
Appeal from a judgment on a jury verdict on contract and tort claims and from denial of
motion for new trial; cross-appeal from denial of motion for attorney's fees. Eighth Judicial
District Court, Clark County; Michael J. Wendell, Judge.
Hotel where prize fights were scheduled to occur brought action against promoters for
breach of contract. The district court entered judgment on jury verdict for promoters, and
hotel appealed. The supreme court, Springer, J., held that failure to allow hotel to offer
rebuttal testimony, or to reopen case in chief in order to offer testimony was reversible
error.
entered judgment on jury verdict for promoters, and hotel appealed. The supreme court,
Springer, J., held that failure to allow hotel to offer rebuttal testimony, or to reopen case in
chief in order to offer testimony was reversible error.
Lionel Sawyer & Collins and Stephen L. Morris, Las Vegas, for
Appellant/Cross-Respondent.
Schreck, Jones, Bernard, Woloson & Godfrey, Las Vegas, for
Respondents/Cross-Appellants.
Profeta & Eisenstein, New York, New York, for Respondents/Cross-Appellants Lewis and
Spinks.
Jones, Jones, Close & Brown and Kirk B. Lenhard, Las Vegas, for Respondent Cooney.
Herbert Sachs, Las Vegas, for Respondent Rappaport.
1. Contracts.
Court called upon to interpret contract is not limited to express terms of written contract, and may instead examine circumstances
surrounding parties' agreement in order to determine true mutual intentions of parties. U.C.C. 1-201(3).
2. Trial.
Refusal to give breach of contract plaintiff's requested instruction was not error, though proposed instruction was consistent with
modern contract theory, where substance of instruction was covered by other instructions given.
3. Contracts.
Where terms of contract are literally complied with but one party to contract deliberately countervenes intention and spirit of
contract, that party can incur liability for breach of implied covenant of good faith and fair dealing.
4. Contracts.
Even though boxing promoters did not have contractual duty to furnish particular fighter as contestant in fights to be held at hotel,
they had legal duty not to interfere with allegedly intended fighter's participation, and could be held liable to hotel for breach of implied
covenant of good faith and fair dealing if such interference was established.
5. Contracts.
When one party performs contract in manner that is unfaithful to purpose of contract and justified expectations of other party are
thus denied, damages may be awarded against party who does not act in good faith; whether controlling party's actions fall outside
reasonable expectations of dependent party is determined by various factors and special circumstances that shape such expectations.
6. Appeal and Error; Trial.
Failure to allow breach of contract plaintiff to offer rebuttal testimony, or to reopen case in chief in order to offer testimony was
reversible error; proffered testimony was only substantial evidence in support of plaintiff's claim that defendants had breached implied
covenant of good faith and fair dealing, and defendant would not have been unfairly prejudiced by its admission.
OPINION
This litigation arises out of a written contract between Hilton and Dynamic Duo, Inc., a
Nevada corporation formed by prize-fight promoters Butch Lewis and Don King. The
Dynamic Duo corporation was formed for the purpose of exhibiting at the Hilton Hotel the
last four contests in a series of professional prize-fights (called the Unification Series
because the series was designed to select one champion from among those recognized by
three world boxing organizations). The Unification Series was intended to lead to the
selection of an undisputed heavyweight champion of the world; and the mentioned last four
prize-fights, the subject of the contract in this case, were to be exhibited at the Las Vegas
Hilton.
At the time of executing the contract, Michael Spinks was the heavyweight champion
recognized by the International Boxing Federation (IBF); Hilton claims throughout that the
parties to the contract intended that champion Spinks would be available as the IBF champion
contestant in the four Hilton events covered by the contract. The written contract did not,
however, specify that Spinks himself would be a contestant in the Hilton events.
1
As matters
turned out, Spinks forfeited his IBF championship before the time of the final Hilton event,
called the Ultimate Unification Bout. Spinks thereby became ineligible to fight in the
series. The Hilton position is that, even if it were not expressly provided in the written
contract, the true agreement of the parties was that Spinks was to be the active IBF contestant
in the four Hilton events. Hilton also claims that Dynamic Duo and its agents deliberately
induced the forfeiture of Spinks' IBF championship, thereby intentionally defeating the
expectations of the contracting parties and Hilton's rights with regard to the participation by
Spinks in the series. Hilton sued Dynamic Duo, promoters Butch Lewis and Don King, and
the other respondents named above. The law suit included claims for breach of contract, civil
conspiracy and intentional interference with contractual relations. A jury found in favor of the
defendants on all claims, and judgment was entered in favor of the defendants and against
Hilton.
claims, and judgment was entered in favor of the defendants and against Hilton. Hilton then
filed a motion for a new trial, which the district court denied. Hilton appeals from the
judgment and the order denying a new trial.
As grounds for reversal Hilton claims that certain jury tampering prevented the conduct
of a fair trial, that the trial court erred in not granting Hilton a new trial and that the trial court
erred in refusing to admit certain evidence either by way of rebuttal or by permitting Hilton to
re-open its case-in-chief.
We find no merit in Hilton's claims of error relating to jury tampering or to the trial court's
denial of a new trial. We do, however, conclude that it was error for the trial court to exclude
evidence offered by Hilton, in the form of rebuttal, that Butch Lewis had told the chairman of
the Nevada Boxing Commission that he (Lewis) was going to withdraw Spinks from the
Unification Series in order to make more money than could be made in the Unification Series.
Evidence that Butch Lewis had intended to take Spinks out of the Hilton events was vital to
the determination of the good faith of Lewis and Dynamic Duo, a matter put in issue by the
court's instruction on breach of the implied covenant of good faith and fair dealing.
Jury Tampering
Although Hilton devotes most of its attention in this appeal to the prejudice claimed to
have resulted from jury misconduct and from claimed tampering on the part of one of the
respondents, we are constrained to agree with the trial judge who concluded that Hilton was
not substantially prejudiced. There are a number of factual issues relating to this claim of
error that have been resolved by the trial judge well within the limits of his judicial
discretion.
__________

1
The opening paragraph of the contact's recital does indicate the intent to have Spinks in the first event and
reads as follows:
WHEREAS, Duo desires to promote a series of professional boxing events at the Las Vegas Hilton,
in Las Vegas, Nevada as follows: on or about September, 1986, an IBF Championship match between
Michael Spinks and an opponent ranked in IBF Top Twelve to be named (First Event); on or about
December, 1986, a WBC Championship Match between Trevor Berbick and an opponent ranked in the
WBC top ten (Second Event), and Duo will use its best efforts to have Mike Tyson as said opponent;
on or about March, 1987, the WBA-WBC Unification Bout (Third Event); on or about May, 1987, the
Ultimate Unification Bout (IBF, WBA, WBC) (Fourth Event). . . .
Dynamic Duo's specific obligation with respect to producing the boxers was then set out in the body of the
contract, with no mention of names, as follows:
(1) Duo agrees to provide the services of all the boxers appearing in each Event, including the
services of the Main Events fighters for promotional purposes.
of factual issues relating to this claim of error that have been resolved by the trial judge well
within the limits of his judicial discretion. Although there are some disturbing aspects relating
to Hilton's claims in this regard, they appear to have been dealt with reasonably and
responsibly by the trial judge. We decline to reverse the judgment against Hilton based on any
alleged error on the part of the trial judge with respect to the regularity of the jury's
deliberations in this case.
Trial Court's Refusal to Grant a New Trial
The only claim relating to the trial court's refusal to grant a new trial which we see as
requiring discussion in this appeal is Hilton's contention that the trial court erred in the
manner in which it instructed the jury on the law relating to breach of contract. We concluded
that the trial court instructed the jury properly in this regard.
The written contract is far from being a model of clarity. Dynamic Duo insists throughout
this appeal that, if Hilton had wished to obligate Dynamic Duo to have Michael Spinks fight
in all of the Hilton events, it should have included a provision to this effect in the written
contract. It did not. From the jury's verdict we must conclude that the jury did not believe that
the parties had expressly or impliedly agreed that Dynamic Duo was contractually obligated
to produce Michael Spinks as a contestant in the four prize-fights that were covered by the
contract.
Hilton argues in its opening brief that had the jury been properly instructed, the outcome
of the trial may have been different. This contention is unpersuasive because the trial court
instructed the jury correctly and in terms that covered quite adequately the position taken by
Hilton in this case, which, briefly put, is this: Even if Dynamic Duo did not expressly agree to
provide Spinks in the Hilton events, it impliedly so agreed and violated this implied
agreement by failing to produce Spinks.
To advance its position that the true agreement of the parties was that Spinks himself must
be the IBF champion who was going to fight under the terms of the contract, Hilton offered
proposed instruction P-1, which stated that a breach may occur with regard to either an
express or implied provision of the contract. The proposed instruction then went on to read
that an implied provision is one that is recognized by the parties to exist and bind them in
their actions despite the fact that it was not specifically spelled out or agreed to by the parties
to the contract. The trial court refused to give this instruction; but, as pointed out below, the
subject of Hilton's requested instruction was covered by other instructions of the court.
[Headnote 1]
The quoted proposed instruction does offer a broad interpretation of contract law that is
consistent with modern contract theory. Although some courts still follow traditional bargain
theory and refuse to delve beyond the express terms of a written contract, the better approach
2
is for the courts to examine the circumstances surrounding the parties' agreement in order to
determine the true mutual intentions of the parties. Courts today tend to be willing to look
beyond the written document to find the true understanding of the parties. Nanakuli Paving
& Rock Co. v. Shell Oil Co., 664 F.2d 772, 780 (9th Cir. 1981).
We favor the above-stated approach to contract interpretation, despite Dynamic Duo's
insistence that the court limit itself to the four corners of the contract.
3
The trial court
followed the preferred approach to contract interpretation and took great care to instruct the
jury in a manner that clearly permitted the jury to accept Hilton's vision of the contract of the
parties if it chose to do so.
[Headnote 2]
As indicated above, the trial court clearly and properly advised the jury of the parties' two
opposing contentions: (1) Hilton's claim that the written contract should be read to mean that
Spinks must participate in the Hilton events until he won or lost, and (2) Dynamic Duo's
claim that it had only to produce an IBF champion, whoever that might be. The court
instructed the jury that in this case it was required to determine what the intention of the
parties was and that in doing so it was to determine (Instruction No. 29) what the parties
agreed to by the words used in the written contract and all of the circumstances leading to the
contract, such as negotiations and statements of the parties before the contract and the
object, nature, and subject matter of the contract. (Emphasis supplied.) The emphasized
wording clearly tells the jury that under the circumstances of this case it was not bound
by the express terms of the contract and that it was free to go beyond the literal wordage
of the written document.
__________

2
See U.C.C. 1-201(3) (1989); Restatement (Second) of Contracts 4, comment a, 202 (1979).

3
Dynamic Duo argues that the agreement of the parties must be expressly embodied in the written contract
and that if an agreement or understanding of parties is not embodied in their written contract, it should not be
enforced by the courts. This argument was put this way by counsel during oral argument:
Many people enter into business agreements with hopes, expectations, desires, and all of those are
important for us to recognize, but I stand here before you and have no hesitancy saying to you with all
respect your honor, that when grownupswhen adult people come together and put down what their
agreement is in writing, that all of them are, and can be expected, to live with the disappointments that
flow from the things that they hoped would happen, not happening.
clearly tells the jury that under the circumstances of this case it was not bound by the express
terms of the contract and that it was free to go beyond the literal wordage of the written
document. Under the court's instructions as given, the jury could have come to the conclusion
that, although it was (as put in Hilton's proposed instruction) not specifically spelled out or
agreed to by the parties, the parties had in fact mutually agreed to Hilton's interpretation of
the contract, namely, that Dynamic Duo must produce Spinks, not just any old IBF champion.
The jury rejected this conclusion and found against Hilton.
When the trial court instructed the jury in effect that it could, if it chose, go beyond the
written language in the contract and find that the parties had in fact impliedly agreed that
Spinks and only Spinks was required to fight as the IBF champion, the court was as much as
telling the jury that it was not bound strictly by the written terms of the contract and that it
could in this case give credence to the true understandings and intentions and justified
expectations of the parties; therefore, Hilton cannot be heard to complain about the district
court's instructions in this case. The jury was given a clear opportunity to find that Hilton was
correct in its contention that Dynamic Duo was bound to produce Spinks for the Hilton event;
it did not so find. The only reasonable conclusion to be drawn from the verdict is that the jury
believed that there was no contract obligation on the part of Dynamic Duo to produce Spinks
and hence no breach of contract by Dynamic Duo. There was no error committed by the trial
court with respect to the manner in which it instructed the jury relative to the breach of
contract action. The trial court properly denied the motion for new trial on this ground.
Breach of the Implied Covenant of Good Faith and Fair Dealing
[Headnote 3]
Even though it has been properly judicially determined that Dynamic Duo did not breach
its contract with Hilton, Hilton may still be able to recover damages for breach of the implied
covenant of good faith and fair dealing that is part of every contract. Where the terms of a
contract are literally complied with but one party to the contract deliberately countervenes the
intention and spirit of the contract, that party can incur liability for breach of the implied
covenant of good faith and fair dealing. This court recognized such an action in A.C. Shaw
Construction v. Washoe County, 105 Nev. 913, 784 P.2d 9 (1989), in which contract
damages were held to be recoverable for breach of the implied covenant of good faith and
fair dealing.
covenant of good faith and fair dealing. Shaw Construction's claim was for contract damages,
not tort damages. The Shaw opinion notes the difference between a tort action and contract
action in good faith covenant cases, pointing out that the tort action requires a special element
of reliance or fiduciary duty as was present in, for example, United States Fidelity v.
Peterson, 91 Nev. 617, 540 P.2d 1070 (1975), and K Mart Corp. v. Ponsock, 103 Nev. 39 732
P.2d 1364 (1987). The tort action for breach of the covenant of good faith and fair dealing
(sometimes called a contort because of its hybrid contract-tort nature) must not be confused
with the essentially contract form of claim described in the Shaw case.
4

[Headnote 4]
Even though Dynamic duo did not have a contractual duty to furnish Spinks as a
contestant in the Hilton events, it did have a legal duty not to interfere with Spinks' capacity
to be a contestant and effectively prevent Spinks from participating in the Hilton events.
Dynamic Duo, Lewis and King, under the implied covenant of good faith and fair dealing,
had a duty to promote the Hilton events in a fair manner and not to manipulate who would be
or who would not be the IBF champion and so advance their own interests in a manner that
would compromise Hilton's benefits under the contract. Lewis did not have the right to defeat
Hilton's contract interests by deliberately causing Spinks to be stripped of the IBF title in
order to benefit himself and Dynamic Duo. Dynamic Duo and Lewis had the duty to perform
the obligations of the Hilton contract in good faith. If, as charged by Hilton, Lewis
purposefully and intentionally had Spinks stripped of the IBF title in order to undermine the
Unification Series and permit Lewis and Dynamic Duo to make more money outside the
series, this conduct could be seen as a breach of the covenant of good faith and fair dealing
implied in the parties' contract. Lewis' good faith relative to the Hilton-Dynamic Duo contract
is a question of fact to be determined by the jury after presentation of all relevant evidence.
Hilton's action for breach of the implied covenant of good faith and fair dealing is
problematical. Hilton did not specifically plead a breach of the good faith covenant.5
Nevertheless, a claim under this theory was apparently litigated by consent of the parties.
__________

4
In Shaw, we remarked that [t]he law would be incongruous if the covenant is implied in every contract,
and yet the only remedy for breach of that covenant is if tort damages are alleged and there exists a special
relationship between the tort victim and tortfeasor. 105 Nev. at 915, 784 P.2d at 10 (emphasis in original). The
tort remedy is necessarily a narrow one found, for example, in insurance cases (see United States Fidelity,
supra) and certain highly restricted wrongful discharge cases (see K Mart Corp. v. Ponsock, supra).
a breach of the good faith covenant.
5
Nevertheless, a claim under this theory was apparently
litigated by consent of the parties. The following instruction was given, without objection
and, presumably, was considered by the jury in rendering its verdicts.
In every contract or agreement there is an implied promise of good faith and fair
dealing. This means that each party impliedly agrees not to do anything to destroy or
injure the right of the other to receive the benefits of the contract. Thus, each party has
the duty not to prevent or hinder performance by the other party.
[Headnote 5]
When one party performs a contract in a manner that is unfaithful to the purpose of the
contract and the justified expectations of the other party are thus denied, damages may be
awarded against the party who does not act in good faith.
6
Whether the controlling party's
actions fall outside the reasonable expectations of the dependent party is determined by the
various factors and special circumstances that shape these expectations. See A.C. Shaw
Construction v. Washoe County, 105 Nev. 913, 784 P.2d 9 (1989); Maddaloni v. Western
Mass. Bus Lines, Inc., 438 N.E.2d 351 (Mass. 1982).
[Headnote 6]
The jury was correctly instructed that Dynamic Duo impliedly agreed (in addition to what
it might have been obligated to do under the contract) not to do anything to destroy or injure
the right of [Hilton] to receive the benefits of the contract. The question is whether Hilton
has made a prima facie case under which it can recover for failure on the part of Dynamic
Duo to act in good faith with respect to the contract of the parties. It appears that it has.
Having made such a case, Hilton was surely prejudiced by its not having the advantage of the
direct testimony relating to Lewis' comment about his expressed intention to take Spinks out
of the Hilton series.
__________

5
In its complaint, Hilton alleges that: [Dynamic Duo] breached their obligations to Hilton under the Hilton
agreement. A cause of action for breach of the implied covenant could possibly be derived from this language;
but there is no special pleading of an implied covenant cause of action.

6
A good, illustrative example of a claim for contract damages for breach of the covenant of good faith and
fair dealing can be seen in percentage lease cases. For example, if a lessee agrees to pay a certain percentage of
gross sales receipts as rental and then deliberately alters its business in a way that reduces expected sales (say, by
diverting business to another store for the sole purpose of bringing down the rental), the lessee would not be
acting in good faith. In such a case the lessee would be abiding with the literal terms of the contract but could
still be liable for losses resulting from breach of the covenant of good faith. See Burton, Breach of Contract, and
the Common Law Duty to Perform in Good Faith, 94 Har.L.Rev. 369, 384-85 (1980).
It cannot be denied that Spinks' not fighting in the Hilton events was injurious to Hilton
and destructive of its right to receive the benefits of the contract. Even though Dynamic
Duo was not contractually bound to have Spinks fight at the Hilton, it had the duty not to
injure Hilton by purposely causing Spinks to forfeit his IBF championship and thus keep
him out of the Hilton events; and Hilton had the right to recover benefits which, although not
spelled out in the contract, would have been enjoyed by Hilton had it not been for the claimed
perfidious actions by Lewis as an agent of Dynamic Duo. Bad faith on the part of Lewis and
others could have deprived Hilton of benefits it would have received had it not been for
Lewis' pulling Spinks out of the Unification Series so as to make big money elsewhere.
Proof of what Lewis said and did in this regard is critical to the prosecution of this aspect of
Hilton's case.
The evidence introduced at trial relating to Lewis' failure to deal fairly with Hilton
consisted entirely of news stories quoting Lewis.
7
While these news stories indicate that
Lewis was eager to take the credit for making the Spinks-Tyson match-up worth much more
to the fighters than it would have been under the Unification Series, they do not clearly show
that Lewis purposefully had Spinks stripped of his title in order to create the big pay day.
The only newspaper story introduced at trial which was written prior to its becoming obvious
that the eventual match-up would be worth more money than the Unification Series seems to
indicate that Lewis intended to stay in the Unification Series even if a deal was made to
have Spinks fight Cooney.
__________

7
In one newspaper article, prior to Spinks' fight against Steffen Tangstad (first event) in September of
1986, Lewis is quoted as saying that he had options which included having Spinks fight Gerry Cooney that year
after the Tangstad fight. That article also includes the contrary indication of Lewis' apparent intention to remain
in the Unification Series. He is reported to have said that the Ultimate Unification Bout will not be until at least
April, having us off seven months. (Trial Exhibit 101, Smith, Spinks Is Satisfied to Stay in Shadows, Chicago
Tribune, Sept. 7, 1986.) In another article, just prior to the Spinks-Tyson fight in 1988, Lewis, referring to the
suit by HBO against him for pulling out of the Unification Series, is quoted as saying, Everyone should be
thanking me. Last year this fight would have been for $2 million each. Now Tyson's getting at least $20 million
and we're getting $13.5 million. Maybe they didn't have to build a statue for me, but they don't need to sue me.
(Trial Exhibit 127, Smith, If Tyson Loses Crown to Spinks, HBO Loses, Too, Chicago Tribune, June 12, 1988.)
Finally, in an article written just after the Ultimate Unification Bout between Tyson and Tony Tucker, Lewis
again takes credit for the eventual windfall, saying, I took a promotion that in December would have paid each
fighter $2 million apiece. Now this could be the biggest box-office event in our industry's history. (Trial Exhibit
165, Borges, Only Spinks Can Crown Tyson, Boston Globe, Aug. 3 1987.) The other news stories introduced
contained more of the same, with Lewis taking credit for more money being made outside of the Unification
Series.
if a deal was made to have Spinks fight Cooney. It is understandable that Lewis would take
credit for the big money after the fact, but the evidence offered during Hilton's case-in-chief
does not clearly establish that Lewis intentionally subverted the Unification Series by having
Spinks stripped of the IBF title. This makes the Lewis statement to the boxing commission all
the more vital to Hilton's bad faith case.
On rebuttal, after both sides had presented their case at trial, Hilton sought to introduce the
testimony of Duane Ford, then Chair of the Nevada Athletic Commission. Hilton's counsel
indicated that Ford would testify that in September 1986, long before the Spinks-Cooney
deal, he heard Lewis say that he was going to pull Spinks out of the Unification Series in
order to make big money elsewhere. The trial court did not allow Ford to testify with
respect to this, reasoning that the testimony should have been offered in Hilton's
case-in-chief, that it should be excluded as rebuttal and that its prejudicial effect outweighed
its probative value. This was error.
Compared to the evidence contained in the newspaper articles, the testimony by Ford of
Lewis' statement of intention to withdraw Spinks was very strong; and it is hard to see how
Dynamic Duo would have been prejudiced by allowing Mr. Ford to testify. Dynamic Duo
would have had the opportunity to cross-examine Ford, and if Dynamic Duo had
documentary or testimonial evidence that would have weakened or contradicted Ford's
testimony, it could have brought that forward or asked for a delay in order to present such
evidence. Dynamic Duo claimed that it was not able to deal properly with the Ford testimony
because its witnesses had already been dismissed; however, Lewis was still present in court,
and it does not appear from the record that some critical Dynamic Duo witness had been
excused and was therefore unavailable.
The Ford testimony is really the only substantial evidence of Lewis' intent, for personal
advantage, to have Spinks forfeit his IBF title. This evidence certainly was not more
prejudicial than probative. It would appear, on the contrary, that it was far more probative
than prejudicial. If, as counsel for Hilton claims, Hilton had no knowledge of what Lewis had
told Ford until after Hilton's case-in-chief had been submitted, then Hilton should have been
allowed to reopen its case in order to present this evidence. The trial court, however, had the
opportunity to make judgments in this regard and to exercise its discretion. We are very
reluctant to rule that the trial court abused its discretion in refusing to allow Hilton to reopen
its case-in-chief; however, we do conclude that the trial court erred in refusing to allow this
evidence in as rebuttal.
Dynamic Duo throughout its defense maintained a position that neither Lewis nor
Dynamic Duo did anything to interrupt Spinks' IBF title. Whether or not this is true goes to
the heart of Hilton's case; and Hilton, on rebuttal, should have had an opportunity to present
this evidence. Because of this erroneous ruling we reverse the judgment of the trial court and
remand for a new trial on Hilton's claim for breach of the implied covenant of good faith and
fair dealing.
Mowbray, C. J., Steffen and Young, JJ., and Zenoff, Sr. J.,
8
concur.
____________
107 Nev. 237, 237 (1991) Felder v. State
JAMES LLOYD FELDER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20350
April 30, 1991 810 P.2d 755
Appeal from a judgment of conviction pursuant to jury verdict of first degree murder with
use of a deadly weapon. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Defendant was convicted by jury of first degree murder with use of deadly weapon before
the district court and he appealed. The supreme court held that: (1) testimony concerning
defendant's prior questionable financial activities was not inadmissible prior bad acts
evidence, and (2) prosecutor's comment concerning defendant's service in Vietnam was
harmless error.
Affirmed.
Morgan D. Harris, Public Defender and Steven J. Dahl, Deputy Public Defender, Clark
Frankie Sue Del Papa, Attorney General, Carson City; Rex A. Bell, District Attorney and
James Tufteland and Drew Christensen, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Evidence of prior bad act is admissible if prior act is relevant to crime charged, prior act is proven by clear and convincing
evidence, and evidence is more probative than prejudicial.
__________

8
The Honorable David Zenoff, Senior Justice, was appointed to sit in the place of The Honorable Robert E.
Rose, Justice. Nev. Const. art. 6, 19; SCR 10.
2. Criminal Law.
When determining whether to admit evidence of prior bad act, trial judge is to weigh probative value of proffered evidence against
its prejudicial effect via hearing outside presence of jury, and judge's decision will not be disturbed absent manifest abuse of discretion.
3. Criminal Law.
Supreme court would review evidence of prior bad acts which was admitted and determine whether trial court abused its discretion
in admitting the evidence, even though evidence of prior bad acts was not submitted to trial court outside presence of jury; district
judge did rule that the evidence was admissible.
4. Criminal Law.
Testimony that about eight months before murder, defendant withdrew money without permission from joint account owned by
defendant and witness, and from defendant's parents' account was admissible prior bad act evidence; State used testimony to establish
that defendant needed money, which went to his motive for committing murder.
5. Criminal Law.
Testimony that defendant admitted that he had forged signatures in order to obtain credit cards was admissible without being
limited to proof of general amounts of defendant's credit card debts; fact of forgery could indicate desperation and thus was properly
admitted to prove motive.
6. Criminal Law.
Testimony that attorney told defendant that $100,000 check to attorney had bounced was hearsay not admissible under any
exception, but error in admitting testimony was harmless; testimony was only cumulative in that State presented other, admissible
evidence at trial to establish that defendant was in financial distress, and fact that defendant bounced check written to his attorney was
not that prejudicial.
7. Criminal Law.
Prosecutor's remark concerning defendant's service in Vietnam was harmless error, in murder and weapons prosecution, even
though remark was harsh, unrestrained, and improperly implied that defendant had fired at people; remark about Vietnam war was only
one remark made during trial of several days, and defense did not request any remedial measure short of mistrial.
8. Constitutional Law.
Nevada reasonable doubt instruction does not violate defendant's due process rights. U.S.C.A.Const. amends., 5, 14; Const. art. 1,
8.
OPINION
Per Curiam:
Appellant James Lloyd Felder (Felder) was convicted of first degree murder of Grace
Windholtz (Gracie) with use of a deadly weapon and sentenced to two consecutive life terms
with the possibility of parole.
A ransom note was found near the body. In order to establish a monetary motive for the
killing, the State was allowed to introduce the following evidence: (1) Eight months before
the killing, Felder forged signatures to obtain credit cards, and he withdrew money without
permission from certain bank accounts; and {2) two weeks before the killing, a $100,000
check Felder gave his attorney to pay off credit card debts had bounced.
money without permission from certain bank accounts; and (2) two weeks before the killing,
a $100,000 check Felder gave his attorney to pay off credit card debts had bounced.
Felder contends that (1) while evidence of his general indebtedness was admissible to
show motive, the State was allowed to go too far in proving specific prior bad acts concerning
his personal finances; and (2) a reference by the prosecutor to Felder's Vietnam duties was
prejudicial misconduct. We conclude that any error was harmless, and Felder was fairly tried,
convicted, and sentenced.
FACTS
On August 2, 1988, Gracie, a Las Vegas casino slot supervisor, was found dead in a closet
in her house. She had two .25 caliber bullets in the back of her head and neck. Felder was a
high roller and made frequent trips from his home in South Carolina to Las Vegas. He met
Gracie and her roommate, Brenda Schmitberger (Brenda), where they worked at a local
casino, and he often spent time with them and borrowed their car.
On the same day of the discovery of her body, Gracie could not be located for lunch by
Felder or Brenda, and Felder went to the Jockey Club where Brenda worked. He told her he
could not find Gracie. He also said that Gracie had borrowed $25,000 from him that morning
and was meeting someone before lunch. Felder and Brenda went to the house. When Felder
opened the door, Brenda saw blood on the floor. He emerged after a few seconds with a piece
of paper in his hand saying get in the car, we've got trouble. He held what appeared to be a
ransom note which had been printed on a computer. The note stated that they had Gracie and
would not kill her if they received $200,000. Felder told Brenda he could get about $100,000,
and he asked her if she could get the same amount.
Brenda then asked Felder if he did it, and he replied [n]o, and you know better than that.
Felder told her they should not get anybody else involved, and he suggested they go to the
Hilton to decide what to do. Eventually, Felder went to the police station and an investigation
followed. The police found Gracie dead in the closet several hours later. All the doors of the
house had been locked, and they saw no signs of forced entry.
With Felder's permission, the police searched his room at the Hilton and found a shoe with
blood spots on it and a .25 caliber pistol. The gun was capable of holding seven bullets, six in
the magazine and one in the chamber. It had five unspent bullets, four in the magazine and
one in the chamber. A firearms expert testified that this was the gun which killed Gracie. No
fingerprints were found on the gun or bullets, and fingerprints found inside the closet where
the body was found did not match any of the possible suspects.
the closet where the body was found did not match any of the possible suspects.
Felder's version of what happened when he and Brenda went to the house differs from
Brenda's testimony. He says he never asked her for any money or discussed raising money for
the ransom, and he never said they should not involve the police. Felder also testified that he
usually gave Brenda or Gracie a key to his hotel room when he was in Las Vegas, and he gave
them a key this time.
At Felder's residence in South Carolina, police found a partially filled box of .25 caliber
ammunition. A document examiner who examined Felder's handwriting testified that the
handwritten part of the ransom note was written by Felder.
Felder's roommate and best friend, Kerry Durr, testified that Felder had told him the
purpose of his trip to Las Vegas was to obtain $250,000 from a bank in California and
associates in Las Vegas, in order to pay off his credit card debts. The .25 caliber gun belonged
to Durr's sister. When Durr asked Felder why he was taking a gun, Felder became angry and
responded that he had been robbed twice and would not let it happen again. Durr said that
after Felder's arrest, Felder called him and asked him to pack up his computer and remove it
from their business. He also told Durr to tell the police that he had mailed the pistol to Gracie
as a gift.
Durr also testified that Felder was in financial distress and took money from bank accounts
without permission, forged signatures to obtain credit cards, and wrote a large check to his
attorney, which bounced.
DISCUSSION
A. Testimony regarding prior bad acts
Felder contends that the State was allowed to go too far in presenting evidence of his
general indebtedness and thus violated NRS 48.045 when it elicited evidence of Felder's prior
questionable financial activities. Specifically, he objects to his roommate Kerry Durr's
testimony and to the fact that there was no hearing under Petrocelli v. State, 101 Nev. 46, 692
P.2d 503 (1985), before presentation of that testimony. The State argues that the testimony
was needed to demonstrate motive and that the prior acts were closely connected to Felder's
apparent scheme to obtain ransom money.
[Headnotes 1-3]
Evidence of a prior bad act is admissible if (1) the prior act is relevant to the crime
charged; (2) the prior act is proven by clear and convincing evidence; and (3) the evidence is
more probative than prejudicial. Berner v. State, 104 Nev. 695, 765 P.2d 1144 {19SS).
(1988). In Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), this court held that before
evidence of a prior bad act can be admitted, the State must show by plain, clear, and
convincing evidence that the defendant committed the offense. The judge is to weigh the
probative value of the proffered evidence against its prejudicial effect via a hearing outside
the presence of the jury, and his or her decision will not be disturbed absent manifest abuse of
discretion. Hill v. State, 95 Nev. 327, 594 P.2d 699 (1979). The prosecutor failed to follow
the Petrocelli requirements. The district judge expressed surprise and annoyance that the
evidence of prior bad acts was being offered by the prosecution without a request for a
hearing, but he determined that the evidence was admissible. Again, we reiterate that
evidence of prior bad acts should be submitted to the court outside the presence of the jury so
the judge may make a careful decision as to its admissibility. Nevertheless, since the district
judge did rule that the evidence was admissible, we will review the evidence and determine
whether the court abused its discretion.
[Headnote 4]
First, Felder objects to Durr's testimony that about eight months before the murder, Felder
had withdrawn $2,000 without permission from a joint account owned by Felder and Durr,
and about $30,000 from Felder's parents' account. The State used the testimony to establish
that Felder needed money, which goes to his motive for committing the murder. We conclude
that the district court did not abuse its discretion in allowing Durr's testimony concerning the
bank account withdrawals.
[Headnote 5]
Second, Felder asserts that the district court erred in allowing Durr's testimony that Felder
admitted to him that he had forged signatures in order to obtain credit cards. Felder contends
that the State should not have been allowed to point out the fact that the credit cards were
obtained by forgery, and the court should have limited the State to proof of the general
amounts of his credit card debts. We conclude that the fact of forgery may indicate
desperation and was therefore properly admitted to prove motive.
[Headnote 6]
Third, Felder argues that the court erred in admitting Durr's testimony that Felder had
bounced a $100,000 check to his attorney. According to Durr, about two weeks before the
murder, he saw Felder make out a $100,000 check to his attorney to pay off his credit card
debts. Soon thereafter, Durr had a conversation with Felder's attorney about the check. Then,
after Felder went to Las Vegas, Durr spoke to Felder on the telephone and told him that his
lawyer had said the check bounced. Felder contends that Durr's statement about what
Felder's attorney had said was inadmissible hearsay.
Durr's statement about what Felder's attorney had said was inadmissible hearsay. We
conclude that the attorney's statement was in fact hearsay and was not admissible under any
exception. However, because the State presented other, admissible evidence at trial to
establish that Felder was in financial distress, this hearsay evidence was only cumulative.
Furthermore, we do not consider the fact that Felder bounced a check written to his attorney
so prejudicial. Therefore, we conclude that the error was harmless. See Big Pond v. State, 101
Nev. 1, 3, 692 P.2d 1288, 1289 (1985).
B. Alleged prosecutorial misconduct
[Headnote 7]
Felder argues that the prosecutor committed misconduct which constitutes reversible error
when he referred to Felder's service in Vietnam. The State responds that this remark was a
legitimate attempt to rebut Felder's unsolicited statement that he was incapable of killing
Gracie.
On cross-examination of Durr, defense counsel brought out that Felder was a medic and
performed helicopter rescues in Vietnam. On redirect, the prosecutor asked whether Felder
used a gun during his helicopter rescue duties in Vietnam. Durr replied that Felder
occasionally cleared the rescue area with gunfire. Later, during cross-examination of Felder,
Felder said I would have been smarter than to write a ransom note if I would have been
capable of doing this in the first place. The prosecutor then asked: Well, you're the same
guy who used fire on the Vietnamese as you dropped in the jungle, aren't you? At this point,
defense counsel objected, and the jurors were dismissed. Defense counsel requested a
mistrial, but they did not request that the comment be stricken from the record or that the jury
be admonished to disregard it. Although the court expressed some disapproval of the
prosecutor's remark, it denied the defense motion for a mistrial. After a brief recess, the
prosecution began a different line of questioning.
The prosecutor's comment was harsh and unrestrained, and it improperly implied that
because Felder fired to clear the area before landing, he was firing at people. Caution must be
taken in permitting testimony or remarks about a defendant's actions in a war or combat
situation in the armed services. Nonetheless, this was just one remark made during a trial of
several days. Further, the defense did not request any remedial measures short of a mistrial.
We conclude that it was harmless error beyond a reasonable doubt. See McMichael v. State,
98 Nev. 1, 638 P.2d 402 (1982).
C. The reasonable doubt instruction
[Headnote 8]
Finally, Felder argues that the reasonable doubt jury instruction given by the district court
violated the due process clause of the United States and Nevada Constitutions in light of Cage
v. Louisiana, 111 S.Ct 328, 329 (1990). However, in Lord v. State, 107 Nev. 28, 806 P.2d
548 (1991), we upheld the Nevada reasonable doubt instruction, despite the Cage decision.
Therefore, we conclude that the instruction was proper.
For the reasons noted above, we conclude that Felder's contentions are without merit. We
therefore affirm the conviction entered by the district court.
____________
107 Nev. 243, 243 (1991) Flanagan v. State
DALE EDWARD FLANAGAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20383
RANDOLPH MOORE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20483
April 30, 1991 810 P.2d 759
Appeals from two sentences of death, consolidated for decision. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Defendants were convicted, in separate trials, of two counts of murder by the district court
and they appealed. The supreme court, 104 Nev. 105, 754 P.2d 836 (1988), and 104 Nev.
113, 754 P.2d 841 (1988), affirmed in part, reversed in part, and remanded for new penalty
hearing. On remand, defendants were again sentenced to death. Consolidating defendants'
appeals, the supreme court, Young, J., held that: (1) evidence of defendant's involvement in
satanic worship two years prior to crimes charged was admissible at penalty phase of capital
murder case, as relevant character evidence; (2) evidence of sentences imposed on defendants'
co-defendants was likewise relevant and admissible at penalty hearing; and (3) sentencing
court's instruction, that verdict may never be influenced by sympathy, prejudice or public
opinion, did not improperly limit jury's consideration of mitigating evidence.
Affirmed.
Lee Elizabeth McMahon, Las Vegas, for Appellant Dale Edward Flanagan.
Tufteland, Deputy District Attorney, and Thomas L. Leen, Deputy District Attorney, Clark
Schieck & Derke, Las Vegas, for Appellant Randolph Moore.
Tufteland, Deputy District Attorney, and Daniel Seaton, Deputy District Attorney, Clark
1. Homicide.
Evidence of defendants' involvement in satanic worship two years prior to crimes charged was admissible, at penalty phase of
capital murder case, notwithstanding lack of evidence that defendants' satanic practices were causally connected to crimes charged;
evidence was admissible as relevant character evidence. NRS 175.552.
Admission at penalty phase of capital murder case of evidence of defendants' involvement in satanic worship was proper character
evidence, even assuming that satanic worship is constitutionally protected activity. U.S.C.A.Const. amend. 1; NRS 175.552.
3. Homicide.
Evidence of sentences received by co-defendants was relevant and admissible at penalty phase of capital murder case, where jury
was instructed that it was not bound by previous sentences. NRS 175.552.
4. Homicide.
Trial court's instruction at penalty phase of capital murder case, that verdict may never be influenced by sympathy, prejudice or
public opinion, did not improperly limit jury's consideration of mitigating evidence, where jury was also instructed to consider any
mitigating circumstances. NRS 175.552.
5. Criminal Law.
Instruction that offense may be mitigated by enumerated circumstances, even though the mitigating circumstance is not sufficient
to constitute a defense or reduce the degree of the crime, did not violate Eighth Amendment by impermissibly limiting jury's
consideration of mitigation at penalty phase of capital murder case to evidence related to crime. U.S.C.A.Const. amend. 8.
6. Criminal Law.
Sentencing court properly refused capital murder defendant's requested instruction that jury was free to consider any and all
mitigating evidence, where law encompassed therein was substantially covered by other instruction, in which sentencing court apprised
jury of circumstances by which crime could be aggravated or mitigated, including any other mitigating circumstance.
OPINION
In 1985, appellants Dale Flanagan and Randy Moore were convicted of murdering
Flanagan's grandparents. Both Flanagan and Moore were sentenced to death and separately
appealed to this court. We affirmed their convictions but reversed the sentences of death
based on cumulative prosecutorial misconduct. See Flanagan v. State, 104 Nev. 105, 754 P.2d
836 (1988) and Moore v. State, 104 Nev. 113, 754 P.2d 841 (1988). Following a joint retrial
of the penalty phase in July 1989, Flanagan and Moore were again sentenced to die. Although
separately briefed and argued on appeal, we have consolidated our decisions in these cases
due to the common issues presented. NRAP 3(b).
This case involves the shooting deaths of Flanagan's grandparents, Carl and Colleen
Gordon. The Gordons were found dead on November 6, 1984, Carl having been shot seven
times in the back and chest and Colleen having been shot three times in the head. On direct
appeal, we found overwhelming evidence that Flanagan, Moore and four other co-defendants
killed the Gordons so that Flanagan could obtain insurance proceeds and an inheritance under
his grandparents' will. Flanagan, 104 Nev. at 107, 754 P.2d at 837.
At the second penalty hearing, the State called eight witnesses. In addition, Flanagan gave
a brief unsworn statement to the jury in which he acknowledged that he had been involved in
occult activities. Moore also gave an unsworn statement to the jury in which he admitted
practicing white witchcraft.
The jury imposed sentences of death. On the special verdict form, the jury checked two
mitigating circumstances: (1) the defendants' lack of significant history of prior criminal
activity, and (2) any other mitigating circumstance. In addition, the jury found four
aggravating circumstances: that the murders were committed: (1) by defendants who
knowingly created a great risk of death to more than one person; (2) while the defendants
were engaged in the commission or attempted commission of a burglary; (3) while the
defendants were engaged in the commission or attempted commission of a robbery; and (4)
for the purpose of receiving money or any other thing of monetary value. Following
sentencing, these appeals were filed.
1
Flanagan and Moore's Common Contentions
__________

1
At sentencing on July 31, 1989, Flanagan waived his appeal of the death penalty and requested that he be
executed on the date set. The district court found that Flanagan's waiver of his right to appeal was knowing and
voluntary. Thereafter, defense counsel filed a designation of the record of the proceedings and, the next day, a
notice of waiver of appeal.
Upon receipt of the notice of waiver of appeal, this court entered an order
Flanagan and Moore's Common Contentions
[Headnote 1]
Appellants Flanagan and Moore first contend that the district court erred in admitting
testimony regarding their involvement in satanic worship in 1982 when they were 17 years
old. Appellants argue that the evidence concerning this activity was dubious and irrelevant.
They further argue that, even if the evidence is considered relevant, the district court should
have excluded it because any probative value was substantially outweighed by the danger of
unfair prejudice, of confusion of the issues and of misleading the jury. See NRS 48.035(1).
Appellants also assert that the prosecutor's argument regarding satanic worship inflamed the
jury and diverted it from making its sentencing decision based on relevant evidence.
Appellants contend that the admission of this evidence rendered the trial fundamentally unfair
and the verdict arbitrary and capricious.
One of the State's witnesses, Thomas Akers, testified that he had seen Flanagan play with
tarot cards and that Flanagan had told him he was into devil worship. Akers also said that
Flanagan told him he had the power to push them [the Gordons] up or down, whatever he
wanted. He further testified that he, Akers, had drawn a picture of a wizard and named it
Dale. A second State's witness, Wayne Wittig, testified that at age 16 he had been part of a
seven-member coven led by Flanagan and Moore. Wittig stated that Flanagan represented
black magic and Moore represented white magic, which meant that Flanagan was more the
physical part of the coven, while Moore was more the mind-over-matter part. He also testified
about an initiation ritual involving use of a knife to draw blood and running the blade through
a candle flame to create a centralness.
Appellants contend that the evidence of their belonging to a coven in 1982 was irrelevant
because there was no evidence or suggestion that this previous activity was a causal factor or
otherwise related to the crimes committed in late 1984. In addition, appellants contend that
the evidence was irrelevant because there was no evidence that the coven had a sinister
purpose or was committed to evil. Moore also argues that the evidence was dubious and
irrelevant because there was no evidence other than that he belonged to the coven. Relying on
Woodson v. North Carolina, 428 U.S. 280 (1976), appellants maintain that the evidence was
irrelevant because it was not part of their individual characters and the particular
circumstances of the crime.
__________
staying execution of Flanagan's death sentence and remanding to the district court for appointment of
independent counsel to brief the question of whether Flanagan had validly waived his appeal rights. The district
court appointed Lee Elizabeth McMahon who subsequently indicated that Flanagan did not wish to waive his
appeal rights and be executed.
evidence was irrelevant because it was not part of their individual characters and the
particular circumstances of the crime.
We conclude that this evidence was both relevant and properly admitted by the court.
Under NRS 175.552, during a penalty hearing evidence may be presented concerning
aggravating and mitigating circumstances relative to the offense, defendant or victim and on
any other matter which the court deems relevant to sentence, whether or not the evidence is
ordinarily admissible. (Emphasis added.) We have held that NRS 175.552 is not limited to
the nine aggravating circumstances outlined in NRS 200.033. See Allen v. State, 99 Nev. 485,
488, 665 P.2d 238, 240 (1983); see also, Biondi v. State, 101 Nev. 252, 257, 699 P.2d 1062,
1065 (1985). Accordingly, the district court did not err in admitting the testimony about
satanic worship.
[Headnote 2]
Appellants also assert that the district court erred by allowing the State to use a
constitutionally protected activity to seek the death penalty. Appellants rely on Zant v.
Stephens, 462 U.S. 862 (1983), in which the United States Supreme Court reiterated its
earlier decisions prohibiting aggravating circumstances based on constitutionally
impermissible factors such as religion. Id. at 885. See, e.g., Herndon v. Lowry, 301 U.S. 242
(1937). Here, however, the jury found four aggravating circumstances, none of which rested
upon or involved constitutionally protected activities. Even assuming that the testimony
regarding satanic worship involved constitutionally protected activity, Zant does not concern
such character evidence.
[Headnote 3]
Flanagan and Moore further contend that the district court's allowance of testimony
regarding the sentences of the other four co-defendants violated their Eighth Amendment
rights to have the jury consider their individual characters and records and the circumstances
of their particular crimes. See Woodson v. North Carolina, 428 U.S. 280, 304 (1976).
Appellants cite authority from several other jurisdictions in support of their argument that the
prosecution should not have been allowed to introduce and argue this evidence. See, e.g.,
People v. Belmontes, 755 P.2d 310 (Cal. 1988).
At trial, the district court allowed testimony by one of the prosecutors from the original
trial and penalty hearing. The prosecutor testified that co-defendant Johnny Ray Luckett had
received four consecutive sentences of life without the possibility of parole, and that
co-defendant Roy McDowell had received four consecutive sentences of life with the
possibility of parole.
We conclude that the district court did not err in allowing the testimony about the
sentences of the other co-defendants.
testimony about the sentences of the other co-defendants. The evidence was admissible under
NRS 175.552 as any other matter which the court deems relevant . . . . Furthermore, the
jury was instructed that it was not bound by the previous sentences. We believe that it was
proper and helpful for the jury to consider the punishments imposed on the co-defendants.
See State v. McKinney, 687 P.2d 570 (Idaho 1984).
[Headnote 4]
Appellants next contend that Jury Instruction 15, which told the jury that [a] verdict may
never be influenced by sympathy, prejudice or public opinion violated their Eighth
Amendment rights because it undermined the jury's constitutionally mandated consideration
of mitigating evidence.
We have upheld virtually identical instructions in several other cases. See Howard v. State,
102 Nev. 572, 729 P.2d 1341 (1986); Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985);
Biondi v. State, 101 Nev. 252, 699 P.2d 1062 (1985); Milligan v. State, 101 Nev. 627, 708
P.2d 289 (1985). In upholding a similar instruction in Nevius, we determined that the jury was
fully advised regarding the range of mitigating circumstances it could consider. Nevius, 101
Nev. at 250, 699 P.2d at 1061.
As in Nevius, we hold that, because the penalty jury was properly instructed to consider
any mitigating circumstances, the district court did not err in instructing the jury that it should
not be influenced by sympathy, prejudice or public opinion. See Nevius, 101 Nev. at 251, 699
P.2d at 1061. Although appellants evidently urge this court to depart from our earlier
decisions in Howard, Nevius, Biondi, and Milligan, we decline to do so.
Flanagan's Remaining Contention
[Headnote 5]
Flanagan also contends that Jury Instruction 8
2
violated his Eighth Amendment rights
because it precluded the jury from considering and giving effect to relevant mitigating
evidence. Relying on several United States Supreme Court decisions, Flanagan argues that,
although he was permitted to introduce mitigating evidence as constitutionally required, the
instructions on mitigation, namely Instruction 8, had the effect of telling the jury not to
consider relevant mitigating evidence. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct.
__________

2
Instruction 8 told the jury that:
Murder of the First Degree may be mitigated by any of the following circumstances, even though the
mitigating circumstance is not sufficient to constitute a defense or reduce the degree of the crime:
(1) That defendant has no significant history of prior criminal activity.
(2) The youth of the defendant at the time of the crime.
(3) Any other mitigating circumstance.
Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989). Therefore, Flanagan contends that
Instruction 8 resulted in a death sentence which was arbitrary and capricious because it failed
to properly guide the jury regarding mitigation.
Flanagan specifically contends that Instruction 8 was constitutionally deficient because the
introductory language, even though the mitigating circumstance is not sufficient to constitute
a defense or reduce the degree of the crime, would cause a reasonable juror to consider his
mitigating evidence as irrelevant because it was unrelated to the crime itself. Next, Flanagan
specifically contends that Instruction 8 was constitutionally defective because use of the
catch all language in number 3 of the instruction, any other mitigating evidence, failed to
provide specific guidelines for considering mitigating evidence of his character and
background.
However, our review of Instruction 8 persuades us that a reasonable juror would conclude
that mitigation was not restricted to crime-related factors because it was stated that the
mitigating circumstances did not have to constitute a defense or reduce the degree of the
crime. Furthermore, the jury in fact found two of the three mitigating circumstances to exist.
In addition, the instructions as a whole adequately informed the jury of its right and duty to
consider mitigating evidence. Finally, it is highly unlikely that a different outcome would
have resulted from more specific instructions, given that the evidence of aggravating
circumstances was overwhelming and clearly outweighed the mitigating circumstances found
by the jury. Thus, we conclude that Instruction 8 did not violate the Eighth Amendment by
impermissibly limiting the jury's consideration of mitigation to evidence related to the crime.
Moore's Remaining Contentions
[Headnote 6]
Moore also contends that the district court erred in refusing his proposed jury instruction
regarding mitigation. Citing Skipper v. South Carolina, 476 U.S. 1 (1986), Moore argues that
the refusal resulted in the jury not being advised that it could consider whatever it wanted to
be a mitigating circumstance.
We have consistently held, however, that it is not error to refuse to give an instruction
when the law encompassed therein is substantially covered by another instruction given to the
jury. Ford v. State, 99 Nev. 209, 211, 660 P.2d 992, 993 (1983). The other jury instructions,
in particular Instructions 6 through 9, adequately informed the jury about the relevant law.
These instructions told the jury that it was its duty to determine whether any mitigating or
aggravating circumstances existed, and that it could only impose a sentence of death if the
aggravating circumstances were established beyond a reasonable doubt and if no
mitigating circumstances outweighed the aggravating circumstances.
could only impose a sentence of death if the aggravating circumstances were established
beyond a reasonable doubt and if no mitigating circumstances outweighed the aggravating
circumstances. The jury was apprised of the circumstances by which the crime could be
aggravated or mitigated, including any other mitigating circumstance. Therefore, we
conclude that Moore's proposed instruction was properly refused because the information was
adequately covered by the jury instructions given.
Additionally, Moore asserts that the district court erred by rejecting his proposed
instruction in place of Instruction 6.
3
Moore contends that Instruction 6 failed to clarify that
the burden rested on the State to prove that aggravating circumstances outweighed mitigating
circumstances. Our review of the jury instructions, including Instruction 6, reveals that the
instructions as a whole adequately informed the jury of the State's burden of proof. We
conclude that the district court did not err in refusing Moore's proffered instruction.
Finally, Moore contends that the district court erred by rejecting his motion for severance
prior to the second penalty hearing. However, this issue was decided in the first appeal and
became the law of the case. Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975).
We conclude the sentences were not excessive considering the crimes and the
characteristics of the defendants. Having found that appellants' contentions lack merit, we
hereby affirm their death sentences.
The sentences imposed on the other participants in these murders should not have been
received in evidence, nor should have evidence of Flanagan and Moore's prior involvement
with a coven or Satan worship. These errors should not have been made, but I doubt that they
influenced the result in any substantial way.
__________

3
Instruction 6 stated, in relevant part:
The jury may impose a sentence of death only if it finds an aggravating circumstance has been established
beyond a reasonable doubt, and further finds that there are no mitigating circumstances sufficient to
outweigh the aggravating circumstance found.
Moore's proposed instruction stated:
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 the aggravating circumstance(s) outweigh
the mitigating circumstance or circumstances found.
(Emphasis added.)
Accordingly, I would affirm Flanagan's and Moore's death sentences.
When Moore and Flanagan went to trial the second time, the cases of the four other men
involved in this dastardly crime had been concluded in district court. Akers, who drove the
vehicle to the victim's house, had entered a guilty plea to voluntary manslaughter pursuant to
a plea bargain and received a sentence of five years, with the sentence suspended. He was
placed on probation. Walsh pleaded guilty to two counts of first degree murder and was
sentenced to two consecutive life sentences with possibility of parole. McDowell, the person
who brought the .22 pistol to the crime scene and gave it to Flanagan, pleaded guilty to two
counts of first degree murder and received four consecutive sentences of life with the
possibility of parole. Luckett went to trial, and the jury found him guilty of two counts of first
degree murder. He was the person who entered the house with Moore and Flanagan and shot
at the grandfather with the .22 pistol. He received a penalty of four consecutive life sentences
without the possibility of parole.
1

In closing argument, the prosecutor argued to the jury that when the penalties imposed on
the other defendants were considered, equity and proportionality demanded that Moore and
Flanagan be given the death penalty. In introducing the subject, the prosecutor stated:
There is yet another reason to impose the death penalty. Fairness. Equity. I want you
to think for a moment about the entire case, about all of the defendants and what has
happened to them. Punishment should fit the crime.
In this case, let's change it a little bit. The degree of punishment should be directed
and influenced by the degree of involvement. The worse you are, the worse you ought
to get. The better you are, the better you ought to get. Whatever those degrees are, juries
like this, judges like that, need to find the most equitable solution so that everyone gets
treated relatively fairly within the confines of their own case.
The prosecutor then recited the general involvement and penalty that had been assessed
against each of the other four co-defendants. Then he turned his attention to the penalty that
should be assessed against Moore and Flanagan: That leaves us with these two.
__________

1
The State planned to introduce into evidence a large poster containing a list of all those involved in this
crime and the sentences each had received to date. The defense objected and the court told the State to remove
the sentences from the list because such demonstrative evidence may unduly influence the jury. However, the
court permitted the State to make reference in final argument to the sentences received by all those involved.
That leaves us with these two. And when you get to life without the possibility four
consecutive [the sentence entered against Luckett], that is as high as you can go. You
can go no higher in terms of life sentences. There is one more upgrade, the death
penalty.
Now, Johnny Ray Luckett took a shot at the grandfather and missed. These two
people, we have already heard how devastating their actions are. They are killers. They
are murderers, and as such, in terms of the equity argument that I am making now, they
deserve no less than the death penalty. It is absolutely the only fair thing.
The penalty phase of a capital murder trial is conducted to assess the appropriate penalty
that should be imposed on an individual found guilty of first degree murder. Consideration is
given to the facts of the offense which usually have been presented in the guilt phase, the
character and record of the defendant, and any mitigating or aggravating circumstances
peculiar to this defendant. It is a procedure conducted to tailor an individual penalty to the
specific defendant and has little, if anything, to do with the penalty assessed against a
co-defendant.
The United States Supreme Court recognized that in a capital case the penalty is to be
designed for a specific defendant.
We recognize that, in noncapital cases, the established practice of individualized
sentences rests not on constitutional commands, but on public policy enacted into
statutes. The considerations that account for the wide acceptance of individualization of
sentences in noncapital cases surely cannot be thought less important in capital cases.
Given that the imposition of death by public authority is so profoundly different from
all other penalties, we cannot avoid the conclusion that an individualized decision is
essential in capital cases. The need for treating each defendant in a capital case with
that degree of respect due the uniqueness of the individual is far more important than
in noncapital cases. A variety of flexible techniquesprobation, parole, work
furloughs, to name a fewand various post-conviction remedies may be available to
modify an initial sentence of confinement in noncapital cases. The nonavailability of
corrective or modifying mechanisms with respect to an executed capital sentence
underscores the need for individualized consideration as a constitutional requirement in
imposing the death sentence.
Lockett v. Ohio, 439 U.S. 586, 604-605 (1978) (fn. omitted, emphasis added).
A majority of the courts that have considered the issue have determined that the
sentence imposed on a co-defendant is not admissible at the murder penalty hearing of a
defendant.
determined that the sentence imposed on a co-defendant is not admissible at the murder
penalty hearing of a defendant. People v. Belmontes, 755 P.2d 310 (Cal. 1988); Coulter v.
State, 438 So.2d 336 (Ala.Crim.App. 1982); State v. Williams, 292 S.E.2d 243 (N.C. 1982),
cert. denied, 459 U.S. 1056 (1983); Brodgon v. Butler, 824 F.2d 338 (5th Cir. 1987).
2
The
Coulter case well states the reasoning expressed in the cases espoused by the majority view:
[A]n alleged accomplice's sentence is a product of the aggravating and mitigating
circumstances applicable to the alleged accomplice. In the sentencing phase of the trial,
the fact that an alleged accomplice did not receive the death penalty is no more relevant
as a mitigating factor for the defendant than the fact that an alleged accomplice did
receive the death penalty would be as an aggravating circumstance against him. Simply
put, an alleged accomplice's sentence has no bearing on the defendant's character or
record and it is not a circumstance of the offense (italics omitted).
Coulter, supra, at 345-346.
The sentence a co-defendant receives at a murder penalty hearing may have little relation
to his culpability or involvement in the crime. The prosecutor may offer an attractive deal to
one of several defendants to secure critically necessary testimony even if the defendant was
completely involved in the criminal activity (as may have happened in this case with Akers).
And a jury might assess the least penalty because of a defendant's age or low IQ. On the other
hand, a jury might impose the greatest penalty on a defendant whose involvement in the
murder was marginal simply because of that defendant's substantial prior criminal record.
There are many reasons why a specific penalty is assessed against a defendant that has
nothing to do with that defendant's involvement in the specific crime. To me, this renders the
penalty assessed against other defendants of only marginal relevance and it inserts a
secondary issue into the penalty hearing that detracts from the task at handdetermining the
individualized penalty for this defendant.
The establishment of a rule of law is often a two-edged sword; it may help you in one case
but work to your disadvantage in another. Informing the jury of the penalties assessed against
the other defendants may well have helped the prosecutor in this case, but it will certainly
work to the State's disadvantage in others. Every case cited in this concurring opinion deals
with a defendant's attempt to introduce the penalty assessed against other defendants.
__________

2
One jurisdiction has reached the contrary result. Brookings v. State, 495 So.2d 135 (Fla. 1986).
other defendants. I do not believe the rule established by the majority is the better one or the
one that will best serve prosecutors in the future.
I also concur with the opinions expressed by Justice Springer in concluding that the
evidence of Satan worship and participation in a coven was far more prejudicial than
probative. Neither Flanagan nor Moore was actively practicing Satanism or white magic at
the time of the killings and the murders were not in any way related to a cult or ritualistic
event. Evidence of a prior passing interest in Satanism coupled with the prosecutor's assertion
that these defendants should be given the death penalty because they were anti-Christ
injected prejudicial facts that should not have been in this trial.
In reviewing the penalty hearing, I come to the conclusion that the erroneous receipt of
evidence and information would have had no substantial effect on Flanagan's or Moore's
sentences. The evidence against them was overwhelming and showed that these were heinous
murders for profit committed against benevolent grandparents. Even without the evidence I
find objectionable, I feel confident that they would have received the death penalty. However,
we should not sanction the receipt of evidence at trial that I believe to be clearly inadmissible.
Accordingly, I would affirm the first degree murder convictions and death sentences.
There are two things wrong with the penalty hearing in this case. The first is that of
allowing testimony about the sentences which were given to the other defendants involved in
these homicides. I agree with Justice Rose's analysis of this error as expressed in his
concurring opinion; but I do not think that the error is harmless and would order a new
penalty hearing on this ground. The second error in the penalty proceedings is the
prosecution's persistent depiction of Moore and Flanagan as devil worshippers and
antichrist and condemning them for their supposed beliefs. Devil worship does not sit
well with our juries; and I agree with the trial judge that there is no question that Flanagan
and Moore suffered from the prejudicial effect inherent in the prosecution's reliance upon
the supposed devil worship and demonic beliefs and practices of the defendants. I am
convinced that once the prosecution successfully portrayed Flanagan and Moore as antichrist
and as believers in Satanism, the prejudicial effect mentioned by the trial judge came into
operation; and the death penalty was inescapable, whatever else might have been brought out
at the penalty hearing.
In arguing for the death penalty the prosecution condemned Flanagan and Moore for, in
the words of the prosecutor, what they believed in, saying that this was as antiChrist as it
can get and flies in the face of most people's deepest most dearest held beliefs. Since the
prosecution conceded in its appellate briefing that there was no evidence of Moore's being a
Satan worshipper, there should be no question but that Moore was unfairly condemned by the
prosecution for unproven diabolical beliefs and practices. Moore is a murderer, true, but he is
not, according to this record, antichrist, or a believer in devil worship. Further, Moore did not
kill his own grandparents, as Flanagan did. Moore is a very young man with no criminal
record. The jury may very well not have returned the death penalty for Moore had it not been
for Moore's being presented to the jury by the prosecution as being aligned with the devil and
his evil designs.
Flanagan's case is different. He killed his own grandparents for money. For centuries and
in a number of societies the murder of one's own parents or grandparentsparricidehas
been condemned and punished with more severity than other homicides.
1
It is harder in
Flanagan's case than in Moore's to say that the prejudicial effect inherent in the
devil-worship/antichrist portion of the prosecution's penalty case was so objectionable as to
require a new penalty hearing; but I have two reasons for concluding that a new hearing
should also be ordered for Flanagan on the basis of this error. The first reason is that
condemning a person to death for what he or she professes or believes in clearly violates the
first amendment of our federal constitution. In Baldwin v. Alabama, 472 U.S. 372, 382
(1985), the United States Supreme Court stated that, a death sentence based upon
consideration of factors that are constitutionally impermissible or totally irrelevant to the
sentencing process, such as for example the race, religion, or political affiliation of the
defendant, would violate the Constitution. Plainly, Flanagan's death sentence was based
upon the jury's consideration of his supposed religious and group affiliations; thus, under
Baldwin, the penalty hearing contained prejudicial constitutional error.2 Even if there
were no constitutional error, I still see the matter as being governed by our case of Young
v. State, 103 Nev. 233, 237
__________

1
The crime of parricide, murdering one's own parents or grandparents, has in all societies been considered
to be more despicable than other homicides. According to Blackstone, under Roman law parricide was
punishable in a much severer manner than any other kind of homicide. After being scourged, the delinquents
were sewed up in a leathern sack, with a live dog, a cock, a viper, and an ape, and so cast into the sea.
Blackstone, Commentaries on the Laws of England, Book IV, ch.14 at 202-03, Clarendon Press, Oxford (1769).
Under the Napoleonic Code of France parricide was punished by the murderer's being taken to the place of
execution, without any clothes other than his shirt, barefooted, and with his head covered with a black veil. He
was then exposed on the scaffold, while an officer of the court read his sentence to the spectators. His right hand
was cut off, and he was then put to death.
religious and group affiliations; thus, under Baldwin, the penalty hearing contained
prejudicial constitutional error.
2

Even if there were no constitutional error, I still see the matter as being governed by our
case of Young v. State, 103 Nev. 233, 237-38, 737 P.2d 512, 515 (1987). In the Young case a
police expert was brought into the penalty hearing to show that Young was the member of a
certain gang, which gang, according to the expert, would do anything, including torture and
killing. The prosecutorial syllogism was, then: The gang members torture and kill. Young is
a gang member. Therefore, Young tortures and kills. We concluded in Young that such an
argument was of a highly dubious and inflammatory nature, and reduced the penalty
assessed by what we considered to be an improperly influenced jury.
This case is similar to Young because the prosecutor brought in evidence that Moore and
Flanagan had formerly been members, not of a gang but, rather, of some kind of teen-aged
witches' coven. Unlike the Young case, however, no witness was called here to tell the jury
what a coven was, or to prove that coven members torture and kill people, or even that
coven members are dedicated to carrying out the nefarious ends of the Devil. The absence of
evidential support did not prevent the prosecutor from telling the jury that these particular
former coven members, Flanagan and Moore, were antichrist, devil worshippers and opposed
to the dearest held beliefs of most people. It seems to me that the evidence and argument
presented by the prosecutor in this case are far more dubious and far more inflammatory
than they were in Young. If we were to follow the precedent set by this court in Young, we
would have to do something about the prejudice inherent in this penalty hearing.
In this country and state certain labels tend to create virtually uneraseable prejudices. To
label someone as, say, a communist, a sexual abuser of children, or even a loyal supporter of
Saddam Hussein conjures such a prejudicial effect in the minds of most of us as to render a
fair judgment by a jury in a penalty hearing very difficult if not impossible. I believe that the
antichrist, devil-worship label used here probably had this kind of prejudicial effect on the
jury.
I do not believe that these young men got a fair penalty hearing, and I would order a new
one.
_______________

2
Even if I were not convinced that Flanagan's constitutional rights were violated in this case, I would still
postpone filing this opinion until the question could be resolved by the United States Supreme Court. On April
1, 1991, the Court granted certiorari in a case that presents virtually the same issue as this one. See Dawson v.
Delaware, 581 A.2d 1078 (1990), cert. granted, 59 U.S.L.W. 3672 (1991).
____________
107 Nev. 257, 257 (1991) State, Dep't of Mtr. Vehicles v. Kinkade
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY,
Appellant, v. BARBARA KINKADE, Respondent.
No. 20808
April 30, 1991 810 P.2d 1201
Appeal from an order of the district court reversing the decision of a Department of Motor
Vehicles hearing officer revoking respondent's driving privilege. Eighth Judicial District
Court, Clark County; Joseph T. Bonaventure, Judge.
Hearing officer of Department of Motor Vehicles revoked motorist's driving privilege for
refusal to submit to chemical test as required under implied consent law. Motorist petitioned
for judicial review. The district court reversed decision of hearing officer. State appealed. The
supreme court held that: (1) motorist's refusal to submit to blood test constituted refusal
under implied consent statute; (2) Department of Motor Vehicles is not required to bring
original copies of police documents to license revocation hearings; (3) statements of motorist
to police officer was party admission, and thus testimony of officer as to statements was
admissible; and (4) even if temporary license should have been issued at time motorist's
permanent license was revoked, motorist was not entitled to exclusion of evidence of her
failure to submit to chemical testing.
Reversed.
Frankie Sue Del Papa, Attorney General, Carson City, Keith D. Marcher, Deputy
Attorney General, Andres Rappard, Deputy Attorney General, Las Vegas, for Appellant.
1. Automobiles.
Motorist's refusal to submit to blood test constituted refusal under implied consent statute; motorist refused blood test and did
not offer to take alternative test. NRS 484.383.
2. Automobiles.
Liberal construction of implied consent law requires that when suspect chooses testing method they must either undergo that test
or affirmatively request alternative one. NRS 484.383.
3. Administrative Law and Procedure; Automobiles.
Department of Motor Vehicles is not required to bring original copies of police documents to license revocation hearings. NRS
233B.123, subd.2.
If motorist in license revocation proceeding wanted to review original notice of license revocation and officer's certification of
cause, motorist could have subpoenaed documents from police or reviewed documents at police station. NRS 233B.123, subd. 2.
Certified copy of notice of revocation and officer's certification of cause were admissible in license revocation proceeding;
Department of Motor Vehicles (DMV) was not required to produce originals in that they were in possession of police. NRS 233B.123,
subd. 2.
6. Administrative Law and Procedure; Evidence.
Mere uncorroborated hearsay is generally not substantial evidence sufficient to support findings of trial court or hearing officer.
Motorist's statement to police officer that she had been driver of car was party admission, and thus testimony of officer as to
statement was admissible in motorist's license revocation proceeding. NRS 51.035, subd. 3.
8. Automobiles.
Even if temporary license should have been issued at time motorist's permanent license was revoked, motorist was not on that
basis entitled, in license revocation proceeding, to exclusion of evidence of her failure to submit to chemical testing; officers
substantially complied with statutory requirements. NRS 484.389, subd. 2.
OPINION
Per Curiam:
On January 5, 1989, Officer Jerry Edwards of the Nevada Highway Patrol was dispatched
to a one-vehicle accident near Las Vegas. Upon arriving at the scene, Officer Edwards
determined that respondent, Barbara Kinkade, had been driving the vehicle. In addition, the
officer noticed a strong odor of alcohol on Ms. Kinkade's breath and therefore administered a
sobriety test on Ms. Kinkade; respondent failed the test. Ms. Kinkade was then informed of
the implied consent law and given the option of taking either a blood or breath test. At that
time, Ms. Kinkade chose a blood test and was transported to the Las Vegas City Jail.
Upon arriving at the jail, respondent refused to submit to a blood test. She was then served
with the notice of revocation and booked into jail for driving while intoxicated with an
accident. Ms. Kinkade requested an administrative hearing which was held on June 5, 1989.
The hearing officer upheld the revocation of respondent's license and notified respondent by
way of written decision dated June 23, 1989. Ms. Kinkade petitioned the district court for
judicial review of the hearing officer's decision.
The district court reversed the decision of the hearing officer, holding that: (1) Ms.
Kinkade's behavior did not constitute a refusal under the implied consent statute; and (2)
the hearing officer committed reversible error when he refused to allow Ms. Kinkade to
examine the original notice of revocation. The State now appeals. Because the district court's
decision is inconsistent with the purpose of the implied consent statute, and with our case
law, we reverse.
[Headnote 1]
The State's initial contention is that Kinkade's refusal to submit to a blood test constituted
a refusal to submit to any test under the Nevada implied consent statute, and that the hearing
officer was therefore correct in affirming the revocation of Ms. Kinkade's license. More
specifically, appellant argues that, at the scene of the accident, Kinkade was presented with
the choice of taking either a blood or breath test. Ms. Kinkade initially chose a blood test, but
then refused to take such a test at the jail
1
In addition, Ms. Kinkade never indicated a
willingness to take a breath test at any time. Because Ms. Kinkade failed to submit to testing,
the State argues, the district court erred in reinstating her license. We agree.
We were recently presented with a similar issue in State, Dep't of Mtr. Vehicles v. Brough,
106 Nev. 492, 796 P.2d 1089 (1990). In Brough, the DUI suspect refused to submit to a
chemical sobriety test until he could be examined by a doctor. This court held that such
behavior constituted a refusal to submit to an evidentiary test under the implied consent
statute. In so holding, we stated that this court has consistently followed a liberal
interpretation of the implied consent laws. . . . Id. at 496, 796 P.2d at 1092. We further
observed that the sobriety test should be administered as soon as possible after the individual
has been stopped and placed under arrest, because the effectiveness and reliability of the tests
diminish with the passage of time. Accordingly, we held that revocation of the suspect's
license was proper. Id. at 497, 796 P.2d at 1092.
[Headnote 2]
An application of these principles to the instant case reveals that the hearing officer was
correct when he concluded that Ms. Kinkade's behavior constituted a refusal under the
implied consent law. In Brough, this court stated that the implied consent statute should be
liberally construed so as to keep drunk drivers off the streets. A liberal construction requires
that once a suspect chooses a testing method they must either undergo that test, or
affirmatively request an alternative one. Otherwise, a suspect may be able to use the resulting
confusion to delay testing and thereby lessen the amount of alcohol in his or her system. Here,
the record is clear that Ms.
__________

1
The hearing officer found that Ms. Kinkade refused to take any tests (blood or breath) when she was at the
jail. The district court held, however, that this finding was unsupported by the record. Our review of the record
indicates that while Officer Edwards initially stated that, according to his report, Ms. Kinkade had refused to
take any test, the officer retracted the statement on cross-examination. This was because the police report,
prepared by Officer Edwards soon after the incident, merely stated that Ms. Kinkade refused a blood test.
the record is clear that Ms. Kinkade refused the blood test and did not offer to take an
alternative test. For this reason, the district court erred when it held that Ms. Kinkade's
behavior did not amount to a refusal.
[Headnote 3]
In ruling as it did, the district court also held that the hearing officer erred by admitting
into evidence photocopies of the notice of revocation and the officer's certification of cause.
Respondent argues the NRS 233B.123(2) requires that upon request any party must be given
an opportunity to compare an offered photocopy with the original document.
2

Such an argument is foreclosed by State, Dep't of Mtr. Vehicles v. Clements, 106 Nev.
516, 796 P.2d 588 (1990). In Clements, we held that under NRS 233B.123(2) the DMV is not
required to bring original copies of police documents to license revocation hearings. To the
contrary, NRS 233B.123(2) simply requires that the suspect be afforded some chance to
examine the original document, either at the police station or by subpoenaing the original in
advance. Id. at 519, 796 P.2d at 589-90.
[Headnote 4, 5]
Under the logic of Clements, therefore, had Ms. Kinkade wanted to review the original,
she was free to subpoena the document from the police or review the document at the police
station. Because the original of this document was obviously in the possession of the police,
and not the DMV, however, the DMV was not required to produce the document under NRS
233B.123(2). Accordingly, the certified copy of the document was properly admitted by the
hearing officer.
Respondent next suggests several alternative grounds for affirming the district court's
decision. The first of these concerns the evidence used to show that Ms. Kinkade was driving
the accident vehicle. At the hearing, Officer Edwards, testified that when he arrived at the
accident scene, both Ms. Kinkade and her alleged passenger stated that Ms. Kinkade had been
the driver of the car. On the basis of this testimony, the hearing officer found that Ms.
Kinkade was driving the accident vehicle. Respondent challenges Officer Edwards' testimony
as being inadmissible hearsay.
[Headnotes 6, 7]
Respondent correctly points out that mere uncorroborated hearsay is generally not
substantial evidence sufficient to support the findings of a trial court or hearing officer.
__________

2
NRS 233B.123(2) reads: 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.
hearsay is generally not substantial evidence sufficient to support the findings of a trial court
or hearing officer. See Biegler v. Nevada Real Est. Div., 95 Nev. 691, 695, 601 P.2d 419, 422
(1979). Thus, respondent is probably correct when she argues that the hearsay statements
made by the passenger to Officer Edwards were not substantial evidence sufficient to
support the finding of the hearing officer. Nevertheless, the statements of Ms. Kinkade are
clearly party admissions (and therefore not hearsay), which are admissible under NRS
51.035(3). See State, Dep't of Mtr. Vehicles v. McLeod, 106 Nev. 852, 855, 801 P.2d 1390,
1392 (1990). Accordingly, the decision of the hearing officer was supported by substantial
evidence.
[Headnote 8]
Finally, Ms. Kinkade argues that reinstatement of her license was proper, because Officer
Edwards failed to perform correctly all necessary arrest procedures. More specifically,
respondent contends that Officer Edwards failed to serve her personally with a notice of
revocation as required by NRS 484.385(1). In addition, Ms. Kinkade complains that Officer
Edwards, at the time he revoked her permanent license, failed to issue her a temporary one,
again in violation of NRS 484.385(1).
3

Respondent's argument clearly lacks merit. To begin, it is apparent from the record that
Ms. Kinkade was personally served with a notice of revocation. In addition, even assuming
that a temporary license should have been issued, Ms. Kinkade's desired remedy, i.e.,
exclusion of the evidence of her failure to submit to chemical testing, is not appropriate in
this case.
Ms. Kinkade argues that exclusion is mandated under NRS 484.389(2).
4
We disagree.
NRS 484.389(2) prohibits exclusion where the officer has substantially complied with certain
statutory requirements. A review of these provisions reveals some very technical
requirements; it is clear from the record that Officer Edwards complied with nearly all of
these requirements, with one possible exception: he arguably should
__________

3
NRS 484.385(1) reads, in pertinent part:
As agent for the department, the 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. . . . The officer shall then
advise him [or her] of his [or her] right to administrative and judicial review of the revocation and to have
a temporary license and shall issue him [or her] a temporary license. . . .

4
NRS 484.389(2) reads, in pertinent part: [A] court or hearing officer may not exclude evidence of a
required test or failure to submit to such a test if the police officer or other person substantially complied with
the provisions of NRS 484.382 to 484.393, inclusive.
possible exception: he arguably should have issued a temporary license to Ms. Kinkade.
Because Officer Edwards substantially compiled with the statutory requirements in this
manner, NRS 484.389(2) certainly does not require exclusion; indeed, the statute prohibits
exclusion in this case.
For the reasons stated above, we reverse the order of the district court and reinstate the
ruling of the hearing officer.
____________
107 Nev. 262, 262 (1991) Bing Construction v. Douglas County
BING CONSTRUCTION COMPANY OF NEVADA, Appellant, v. COUNTY OF
DOUGLAS, a Political Subdivision of the State of Nevada, Respondent.
No. 20911
April 30, 1991 810 P.2d 768
Appeal from an order of the district court dismissing appellant's complaint for injunctive
relief. Ninth Judicial District Court, Douglas County; Norman C. Robison, Judge.
Gravel pit operator who received special use permit allowing him use of county roads
brought action for injunctive relief after county adopted resolution which impaired some of
his transportation rights under special use permit. The district court dismissed complaint and
operator appealed. The supreme court held that operator was not given proper notice of
hearing on resolution.
Milos Terzich, Gardnerville, for Appellant
Scott Doyle, District Attorney and Robert Story, Deputy District Attorney, Douglas
1. Zoning and Planning.
Whether zoning change is benefit to county is within the county's discretion.
County could revoke gravel pit operator's special use permit to make zoning change.
3. Constitutional Law; Zoning and Planning.
Due process required that gravel pit operator who had special use permit allowing him use of county roads be given personal
notice and opportunity to participate in hearing on zoning change that would impair some transportation rights granted to him under
special use permit. U.S.C.A.Const. amend. 14.
Due Process concerns require that property owner must be notified when its rights are changed, even if those rights are not vested.
U.S.C.A.Const. amend. 14.
County may not choose to revoke all special land uses without valid reason, and therefore must provide personal notice and
hearing to all parties who will be directly affected by zoning change or permit revocation, and those parties include holders of special
use permits or variances and property owners within close proximity to zoning change. U.S.C.A.Const. amend. 14.
Zoning hearing that contains evidence in support of resolution at issue is of great value when decision is appealed, and for that
reason boards of commissioners should be certain that evidence in hearing record shows that zoning changes were made to promote
health, safety, morals or general welfare of its citizens. NRS 278.020, subd. 1.
OPINION
Per Curiam:
Appellant Bing Construction Company of Nevada (Bing) has operated a sand and gravel
pit in the Gardnerville Ranchos area (the Ranchos) of Douglas County since 1967. At that
time, the Douglas Board of County Commissioners (the County) granted Bing a five year use
permit to conduct its business. One of the conditions of the permit was that Bing pay one-half
the cost of paving Tillman Lane which abuts the Bing property.
In 1971, the agreement was renewed and reduced to writing. The County granted Bing a
special use permit for the operation of its business for the useful life of the gravel pit. The
permits also granted Bing rights to ingress and egress from the site using county roads.
However, in 1989, the County adopted Resolution 89-55 which impaired some of the
transportation rights granted Bing eighteen years earlier under the 1971 special use permit.
The questions before this court are whether the County had the right to impair Bing's rights
under the permit, and whether the County followed the proper procedures to do so.
The County held a public hearing on October 5, 1989, to discuss Resolution 89-55. The
commissioners had already voted on and passed the resolution and this meeting was for a
public discussion and a revote. A representative from Bing attended the meeting and brought
an attorney.
Many of those who attended the hearing, including Bing and other construction
companies, complained that they were given no notice of the hearing and were unaware of the
contents of the resolution. Then one of the commissioners read it aloud and explained the
County's reasons for passing it. In spite of the lack of notice, Bing and its attorney seemed to
have been aware of the contents and nature of the resolution because they voiced many of the
same opinions and arguments that they now raise on appeal.
The resolution would preclude truck traffic through certain roads within the Ranchos.
roads within the Ranchos. The roads at issue include Riverview Drive, Dresslerville Road and
part of Tillman Lane, roads that Bing commonly uses to transport materials. The reason for
the resolution is that the constant use of these roads for trucking has made them unsafe for the
families that live in the Ranchos.
1
The County decided that truck traffic makes the roads
dangerous because they are too narrow for trucks, they have no curbs or sidewalks, and they
are dotted with bus stops where children gather and wait.
In response, construction companies complained that restricting the use of the Ranchos
roads would impair the efficiency of their businesses and increase traffic on the already
congested Interstate 395. They voiced concerns that traveling on 395 would add hours to
transportation time, and that 395 is ill-suited for truck use because in some places it is
narrower than the roads through the Ranchos. Along 395, trucks would pass by two schools, a
grammar school and a high school. The high school has an open campus and teenagers are
often in the streets.
In addition to these concerns of the community at large, Bing argued that the County may
not pass a resolution in derogation of its special use permit. Nevertheless, the County adopted
Resolution 89-55, and Bing brought this action for injunctive relief in district court. Bing
litigated on its own behalf, but still asserted the concerns of other companies who use the
Ranchos roads for truck transportation.
In the court below, Bing argued that generally, the resolution created too many problems
for trucks in the area, and that personally, its special use permit as well as the money it spent
on Tillman Lane granted it a vested interest in the Ranchos roads. The trial court decided that
a permit is not a contract, and bestows no vested rights. Therefore, the County may revoke the
permit when making a zoning change. In addition, the trial court found that (1) whether the
resolution is a proper public safety measure need not be addressed because that issue is within
the discretion of the county commissioners; (2) the resolution did not impair Bing's special
use permit because Bing could still operate its plant and could still transport its materials over
some county roads; (3) if the court allowed Bing alone to use the Ranchos roads, then other
truckers would bring discrimination suits; and finally, (4) Bing had sufficient notice of the
hearing regarding the impairment of their special use permit because it came prepared to
voice its concerns.
__________

1
When Bing first obtained his special use permit, the Ranchos area was not populated. Since then, many
homes have been built and families have moved in.
[Headnotes 1-3]
Bing asserts the same issues on appeal. We agree with the trial court that whether the
zoning change is a benefit to the County is within the County's discretion, and that the County
may revoke Bing's special use permit to make the zoning change. However, we conclude that
Bing was not afforded proper notice before this hearing was held and his permit impaired.
Although the County complied with Nevada Revised Statutes and Douglas County Codes
before holding this hearing, the wording of the applicable statutes and ordinances fails to
afford the holder of a special use permit due process before revocation of the permit.
Before the granting of a special use permit, NRS 278.315 requires a board of
commissioners to hold a hearing. This statute also provides that the applicant and each owner
of property within 300 feet must receive notice of the hearing by mail. Therefore, the county
must personally notify interested parties before granting a special use permit.
Nevada law is not so specific regarding the revocation of such a permit. In fact, NRS
278.317 states that a county may reserve for itself the right to modify or reverse permits, but
provides no further procedural requirements. Hence, the legislature left to each individual
county the decision how to proceed when revoking permits.
Both Clark and Washoe Counties require personal notice to all interested parties upon the
revocation of a permit or a zoning change.
2
In Douglas County, however, the requirements
are far more lax. Notice and a hearing is required upon the granting of a special use permit.
But upon revocation, the Douglas County Codes state only that the commission may order
non-conforming uses discontinued within a reasonable time.
3
Even for general zoning
changes, Douglas County only requires notice by publication, which is the minimum that the
legislature requires. See NRS 278.260(2), DCC 17.12.080(A).
[Headnote 4]
The County claimed that it published notice of this hearing in a local paper, and hence it
satisfied the notice requirements. However, we are not convinced that just because the
legislature let individual counties determine their own procedure to alter zoning in
derogation of a special use permit, counties are free to make changes without personally
notifying the citizens who will be directly affected.
__________

2
Clark County requires notice and a hearing to all parties located within 300 feet of the proposed zoning
change.
Washoe County requires the same procedures for revocation of a special use permit that it requires for
issuance. For issuance, the board of commissioners must provide notice and hearing to all property owners
within 300 feet of the area of the proposed special use.

3
See DCC 17.44.070 Special use permits, DDC 17.60.060 Hearing, and DCC 17.56.010 Non-conforming
Use, DesignatedDiscontinuance when.
in derogation of a special use permit, counties are free to make changes without personally
notifying the citizens who will be directly affected. Due process concerns require that a
property owner must be notified when its rights are changed, even if those rights are not
vested. In this case, Bing had been using the Ranchos roads pursuant to a special use permit
that it had obtained eighteen years before the County's decision to make a zoning change.
Personal notice of the public hearing regarding this change is a minimum that the County
must afford to Bing.
[Headnote 5]
Other states have held that upon a zoning change, the failure to provide personal notice to
an interested party is a violation of due process. See Alder v. Lynch, 415 F.Supp. 705 (D.Neb
1976) (revocation of a variance for a dog kennel was reversed because the grantee was not
provided notice and a hearing); Anderson v. Judd, 404 P.2d 553 (Colo. 1965) (lack of notice
invalidated a zoning change because an affected party's right to notice and a hearing is
fundamental); Goldberg v. City of Milwaukee Bd. of Zon. App., 340 N.W.2d 558 (Wis.App.
1983) (board must follow specific procedures before the revocation of a variance; else, the
revocation is invalid). In each of these cases, the courts invalidated a zoning change or special
use permit revocation because the local ordinances provided that the interested parties were
entitled to notice. Even though Douglas County lacks an ordinance providing for personal
notice, we concluded that a county may not choose to revoke special uses without a valid
reason, and therefore must provide personal notice and a hearing to all parties who will be
directly affected by the zoning change or permit revocation.
4

We realize that in this case, Bing did receive some actual notice because its representative
attended the hearing with an attorney. However, mere presence does not prove that Bing
knew the content of the resolution so that it could prepare to oppose it. Therefore, we are
compelled to remand the case so that the County will hold a new hearing, and thereby
conform with common procedural practices when making new resolutions.
We also note that very little evidence was offered at the hearing to support the Board's
allegations that legitimate safety concerns prompted this zoning change. Although zoning
decisions are predominantly within the discretion of the local zoning board, this court has
reversed a municipal action for lack of evidentiary support.
__________

4
Holders of special use permits or variances, and property owners within a close proximity to the zoning
change fit into this category. Notice by publication could be sufficient to those who are indirectly affected, such
as the other construction companies who voiced their opposition to this resolution.
predominantly within the discretion of the local zoning board, this court has reversed a
municipal action for lack of evidentiary support. Nova Horizon v. City Council, Reno, 105
Nev. 92, 769 P.2d 721 (1989) (Council's denial of approval for a project was based on a
campaign promise); City Council, Reno v. Travelers Hotel, 100 Nev. 436, 638 P.2d 960
(1984) (denial of special use permit is a manifest abuse of discretion when the only evidence
to deny the permit is the council members' own arguments).
[Headnote 6]
We have not determined that in this case, the County's decision should be reversed for lack
of evidentiary support. This court is reluctant to reverse county actions absent a manifest
abuse of discretion. However, a hearing that contains evidence in support of the resolution at
issue is of great value when the decision is appealed. For that reason, boards of
commissioners should be certain that evidence in hearing records shows that zoning changes
were made to promote the health, safety, morals, or general welfare of its citizens. See NRS
278.020(1). So long as such evidence is present in the record, this court will have no reason
to question actions which should remain within the discretion of individual counties.
Accordingly, we reverse, and remand this case to the district court to refer Resolution
89-55 back to the county for a new, properly noticed hearing.
5

____________
107 Nev. 267, 267 (1991) Smith v. Cotter
LINDSAY SMITH, M.D., Appellant, v. JAMES JEFFREY COTTER and BONNIE
ELIZABETH COTTER, Respondents.
No. 20913
April 30, 1991 810 P.2d 1204
Appeal from a judgment for respondent, finding appellant negligent for failing to obtain
informed consent and awarding respondent $490,000.00 in damages. Second Judicial District
Court, Washoe County; Charles M. McGee, Judge.
Patient whose vocal cords were paralyzed following doctor's performance of total
thyroidectomy brought medical malpractice action against doctor based on doctor's alleged
failure to obtain his informed consent to surgery. The district court entered judgment in favor
of patient, and doctor appealed.
__________

5
The Honorable Thomas L. Steffen, Justice, voluntarily recused himself from participation in the decision of
this appeal.
ment in favor of patient, and doctor appealed. The supreme court held that: (1) doctor's
deviation from professional medical standards in failing to disclose to patient contemplating
total thyroidectomy the risks of vocal cord paralysis was sufficiently established by expert
testimony and admissions of doctor himself, and (2) finding that patient would reasonably
have refused surgery had he been informed of risk of permanent vocal cord paralysis was
sufficiently supported by evidence.
Affirmed.
Osborne, Jenkins & Gamboa, and Cathy L. Bradford, Reno, for Appellant.
Bradley & Drendel, and Bill Bradley, Reno, for Respondents.
Nevada statute defining when doctor has conclusively obtained patient's informed consent does not impose any requirements on
doctor for obtaining patient's informed consent, or provide that valid consent can be obtained only by following its provisions. NRS
41A.110.
Statutory patient's bill of rights does not require doctor to obtain patient's written consent to surgery. NRS 449.710.
Doctor has duty to disclose information that reasonable practitioner in same field of practice would disclose; doctor's duty is
measured by professional medical standard, which patient must establish with expert testimony. NRS 449.710.
4. Evidence.
Doctor's deviation from professional medical standards in failing to disclose to patient contemplating total thyroidectomy the risk
of vocal cord paralysis was sufficiently established by testimony of physician that he thought doctor should have informed patient of
risk, as well as by testimony of doctor himself that vocal cord paralysis was significant risk of which patient should have been
informed.
5. Evidence.
Mere use of the word think by expert does not place his expression of expert opinion into category of conjecture or unreliability.
Finding that doctor had failed to inform patient of risk of vocal cord paralysis prior to performing total thyroidectomy was
sufficiently supported by testimony of patient, as well as by lack of any mention of vocal cord paralysis in doctor's own records.
To establish proximate cause in informed consent case, there must first be showing that unrevealed risk which should have been
revealed by doctor actually materialized, as well as showing that patient would have refused surgery had he been informed of risk.
Patient's assertion that he would have refused treatment had he been informed by physician of risks associated
therewith must be reasonable under the circumstances, in order to support informed consent claim against
physician.
informed by physician of risks associated therewith must be reasonable under the circumstances, in order to support informed consent
claim against physician.
In determining whether patient would reasonably have refused surgery had he been informed by physician of risks associated
therewith, court may consider testimony of patient as well as medical evidence regarding risks of remaining untreated and possible
alternative treatments; court may also consider testimony from witnesses who observed patient at time he elected to undergo treatment.
No single type of evidence is conclusive on whether doctor's failure to inform patient of risk associated with treatment was
proximate cause of patient's injury; rather, all evidence must be considered by fact-finder in determining whether, had full extent of
risk been known, patient would reasonably have refused treatment.
Finding that patient would reasonably have refused to undergo total thyroidectomy had his physician informed him of risk of vocal
cord paralysis was sufficiently supported by evidence presented in informed consent case, including testimony of patient the he would
not have elected to have surgery, and evidence that patient's thyroid problem was only a minor irritant which required medical attention
every few months.
OPINION
Per Curiam:
This is a medical malpractice action. After a bench trial, the district court awarded
damages against Dr. Lindsay Smith because of his negligent failure to obtain James Cotter's
informed consent to a surgical operation, a total thyroidectomy.
Cotter claims that Dr. Smith failed to inform him that he could suffer paralyzed vocal
cords and an obstructed airway as a complication of the surgery. Dr. Smith claims that he told
Cotter of the risk and that, even if he did not, he was not required by professional standards to
tell Cotter of this risk. There is ample evidence to support the trial court's conclusion that Dr.
Smith failed to inform Cotter of the risk, that he should have done so, and that this failure was
the cause of Cotter's injuries. We therefore affirm the judgment of the trial court.
Cotter suffered thyroid problems for several years and was treated by Dr. Robert
Fredericks, who was unable to relieve the symptoms through conservative medical treatment
and medication. Dr. Fredericks believed that Cotter might require a total thyroidectomy, and,
for this reason, he referred Cotter to Dr. Smith, a general surgeon. On January 16, 1985, Mr.
and Mrs. Cotter met with Dr. Smith. Dr. Smith noted in his office chart that he had discussed
some of the complications associated with a total thyroidectomy namely, "infection,
bleeding, recurrent laryngeal nerves and parathyroids."
total thyroidectomy namely, infection, bleeding, recurrent laryngeal nerves and
parathyroids. The trial judge concluded that neither Mr. nor Mrs. Cotter came away from
that meeting with any idea that there was a risk of total vocal cord paralysis, or permanent
voice impairment or permanent airway obstruction. Cotter elected to have surgery, and he
was operated on, on January 21, 1985. Following the surgery, Cotter could only speak in a
whisper. Initially this did not alarm Cotter or Dr. Smith. Later, Cotter was seen by Dr.
Fredericks, Dr. Dooley, an ear, nose and throat specialist, and a speech pathologist, Dr.
McFarlane, who started to become alarmed because Cotter was still not able to speak
properly. In March of 1985, Cotter was referred to a larynx expert, Dr. Dedo, who concluded
that during surgery Cotter sustained an insult to the bilateral recurrent laryngeal nerve
resulting in paralysis. The district court concluded from the medical evidence that Cotter
could not close his vocal cords to the degree required for normal speech nor could he open his
vocal cords to the degree require for normal breathing.
By mid-summer of 1985, Cotter's voice had begun to recover. By the fall some experts,
including Dr. McFarlane, believed the injured nerves were showing signs of recovery. Dr.
Dedo, on the other hand, attributed the improvement to an expected atrophying process which
causes the cords to close slowly into a position approaching that which was necessary for
phonation. In March of 1986, Dr. Dedo recommended a tracheotomy because Cotter's airway
was obstructed and his vocal cords did not show a return of function. On March 12, 1986,
Cotter was examined by Dr. Horgan, a board certified ear, nose and throat doctor in Carson
City, who found Cotter's airway obstructed due to vocal cord paralysis. Dr. Horgan agreed
with Dr. Dedo's evaluation. Dr. Horgan performed a tracheotomy on Cotter on April 15,
1986.
The district court found that since April 15, 1986, Cotter has suffered a permanent
disability as a result of paralyzed vocal cords, an obstructed airway and placement of the
tracheotomy tube. Based upon these findings of fact the district court found that Dr. Smith
failed to obtain Cotter's informed consent to a total thyroidectomy. The court found that the
standard of care for a board certified general surgeon requires the surgeon to inform the
patient of the risks of surgical injury to the recurrent laryngeal nerve and of permanent vocal
cord paralysis and airway obstruction. There is ample evidence to support these findings.
[Headnote 1]
The trial court also specifically found that Dr. Smith acted negligently by failing to
comply with the requirements of NRS 41A.1101 and NRS 449.710.2" On its face, NRS
41A.110 requires nothing of a doctor.
41A.110
1
and NRS 449.710.
2
On its face, NRS 41A.110 requires nothing of a doctor. The
statute states only that if its provisions are followed, consent has been conclusively obtained;
the statute does not state that valid consent can only be obtained by following its provisions.
Based upon a plain reading of NRS 41A.110, the district court's finding that the statute sets
out requirements for a doctor to follow is incorrect; nevertheless, the district court's
conclusion that the doctor failed to inform Cotter about the surgery in a proper professional
manner is justified under the professional standard of care discussed below.
[Headnote 2]
With respect to NRS 449.710,
3
known as the patient's bill of rights, Dr. Smith correctly
points out that the patient's bill of rights does not require written consent. Dr. Smith argues
that the district court held him in violation of this statute because he did not get consent in
writing.
__________

1
NRS 41A.110 provides:
Consent of patient: When conclusively established. A physician licensed to practice medicine under
the provisions of chapter 630 of NRS has conclusively obtained the consent of a patient for a medical or
surgical procedure if he has done the following:
1. Explained to the patient in general terms without specific details, the procedure to be undertaken;
2. Explained to the patient alternative methods of treatment, if any, and their general nature;
3. Explained to the patient that there may be risks, together with the general nature and extent of the
risks involved, without enumerating such risks; and
4. Obtained the signature of the patient to a statement containing an explanation of the procedure,
alternative methods of treatment and risks involved, as provided in this section.
(Emphasis added.)

2
NRS 449.710 provides in pertinent part:
Every patient of a medical facility or facility for the dependent has the right to:
. . . .
6. Receive from his [or her] physician the information necessary for him [or her] to give his [or her]
informed consent to a procedure or treatment. Except in an emergency, this information must not be
limited to a specific procedure or treatment and must include:
(a) A description of the significant medical risks involved. . . .

3
Every patient of a medical facility or facility for the dependent has the right to:
. . . .
6. Receive from his [or her] physician the information necessary for him [or her] to give his [or her]
informed consent to a procedure or treatment. Except in an emergency, this information must not be
limited to a specific procedure or treatment and must include:
(a) A description of the significant medical risks involved. . . .
not get consent in writing. This is not an accurate reading of the lower court's findings. The
district court found that the risks of nerve paralysis, permanent vocal cord paralysis and
permanent airway obstruction are significant medical risks as that term is used in NRS
449.710(6). The district court correctly concluded that Dr. Smith failed to comply with the
patient's bill of rights, not by failing to get written consent, but by failing to inform Cotter of
these significant medical risks prior to obtaining consent.
[Headnote 3]
The standard relating to informed consent that has been adopted by a majority of
jurisdictions, including Nevada, is a professional standard under which a doctor has a duty
to disclose information that a reasonable practitioner in the same field of practice would
disclose. Karp v. Cooley, 493 F.2d 408, 420 (5th Cir. 1974) (applying Texas law); Guebard v.
Jabaay, 452 N.E.2d 751, 755 (Ill.App. 1983). Generally, under the majority rule the
professional standard must be determined by expert testimony regarding the custom and
practice of the particular field of medical practice. Di Filippo v. Preston, 173 A.2d 333, 339
(Del. 1961); Wooley v. Henderson, 418 A.2d 1123, 1130 (Me. 1980). This court has
specifically adopted the professional, standard stating that the physician's duty to disclose
is measured by a professional medical standard, which the plaintiff must establish with expert
testimony. Beattie v. Thomas, 99 Nev. 579, 584, 668 P.2d 268, 271 (1983). In following the
rule in Beattie this court recently declared that a lack of informed consent must be
demonstrated through expert testimony based upon NRS 41A.100,
4
which requires expert
testimony to prove negligence in medical malpractice actions. Brown v. Capanna, 105 Nev.
665, 669, 782 P.2d 1299, 1302 (1989).
5
[Headnotes 4, 5]
__________

4
NRS 41A.100 provides in pertinent part:
1. Liability for personal injury or death is not imposed upon any provider of medical care based on
alleged negligence in the performance of that care unless evidence consisting of expert medical
testimony, material from recognized medical texts or treatises or the regulations of the licensed medical
facility wherein the alleged negligence occurred is presented to demonstrate the alleged deviation from
the accepted standard of care in the specific circumstances of the case and to prove causation of the
alleged personal injury or death. . . .
(Emphasis added.)
Liability for failure to obtain informed consent is grounded in negligence, in the sense that it is negligent
for a doctor to fail to inform patients of certain risks.

5
Although Capanna had not been decided at the time the instant case was at trial, the holding is Capanna is
consistent with Beattie and is a useful clarification of the majority rule as it is applicable in Nevada.
[Headnotes 4, 5]
The only expert who testified on behalf of the Cotters on the issue of informed consent
was Dr. Knoernschild. When asked his opinion, based upon reasonable medical probability,
as to the proper information to be given by a general board certified surgeon preparing to
perform a thyroidectomy, Dr. Knoernschild testified that he thinks that the surgeon should
inform the patient of the most hazardous complication of a thyroidectomy: that is, the
division of one or both of the recurrent laryngeal nerves and the bilateral vocal cord paralysis
or chronology. Dr. Smith argues that this testimony was no more than an inappropriate
personal opinion and that Dr. Knoernschild never actually testified that Dr. Smith was guilty
of a deviation from the standard of care. In answer to this we would note that this was a
bench trial, and the mere use of the work think by the expert does not place his expression
of expert opinion into a category of conjecture or unreliability. Based upon the question he
was responding to, the testimony was reasonably taken by the trial court as an expert opinion
on what the standard of care is for a general surgeon performing a total thyroidectomy.
6

The Cotters argue that Dr. Smith's own admission at trial also tended to establish the
standard of care in this case. When asked if vocal cord paralysis is a significant risk that
should be disclosed to a patient before undergoing a total thyroidectomy Dr. Smith
responded, Yes. It has been held in other jurisdictions that the expert testimony requirement
may be met by relying on the testimony of the defendant himself. See Abbey v. Jackson, 483
A.2d 330, 333 (D.C.App. 1984) (citations omitted). The testimony of Dr. Smith with regard
to what should have been disclosed was rightfully considered in conjunction with the expert
testimony of Dr. Knoernschild in determining the standard of care; and we conclude that
sufficient evidence was presented at trial to establish a standard of care.
__________

6
The question asked of Dr. Knoernschild was as follows:
[I]n that discussion, Dr. Smith entered into his chart that he discussed problems with bleeding,
infection, recurrent laryngeal nerve and parathyroid.
I would also like you to assume that Mr. Cotter has testified that in the discussion he was told about
nerves in his neck that pass through his thyroid, and that if the nerves were damaged, he could suffer
possible hoarseness for up to six months.
Do you have an opinion, based upon reasonable medical probability, as to whether that is the proper
informed consent that a general Board-certified surgeon should give to a patient when explaining the
procedure of a total thyroidectomy?
trial to establish a standard of care. The next question is whether substantial evidence was
presented to indicate that Dr. Smith failed to inform Cotter of the risk of vocal cord paralysis
and thereby deviated from the standard of care.
[Headnote 6]
Dr. Smith's own records presented at trial indicate that he informed Cotter of various risks
(bleeding, infection, recurrent laryngeal nerve and parathyroid), but no mention is made of
vocal cord paralysis or impaired breathing. Dr. Smith testified that the implication of the note
regarding recurrent laryngeal nerve has to include vocal cord paralysis. He went on to state
specifically that vocal cord paralysis was discussed. Mr. Cotter on the other hand testified that
prior to surgery Dr. Smith never mentioned the risk of permanently paralyzed vocal cords.
Although conflicting evidence was presented with respect to the information given by Dr.
Smith, there was sufficient evidence to support the trial court's finding that the doctor failed
to inform Cotter of the risk of vocal cord paralysis. The trier of fact was in the best position to
sort through the conflicting evidence, and its finding on this issue should not be disturbed.
[Headnote 7]
Dr. Smith also contends that the element of proximate cause has not been established in
this case. To establish proximate cause, first there must be a showing that the unrevealed risk
which should have been revealed by the doctor actually materialized. Downer v. Veilleux,
322 A.2d 82, 92 (Me. 1974). In the instant case, the unrevealed risk was the risk of vocal cord
paralysis and the consequent voice loss and breathing impairment. Although there is
conflicting evidence, the district court found that Cotter's vocal cords were paralyzed.
Accepting this finding of fact based upon conflicting evidence, the initial requirement for
proving proximate cause is fulfilled.
7

[Headnotes 8-11]
Additionally, it must be shown that Cotter would have refused the surgery if he had been
informed of the risk of permanent vocal cord paralysis. Id. The plaintiff's assertion that he or
she would have refused the treatment must be reasonable under the circumstances. In
determining reasonableness, the court may consider the testimony of the patient as well as
medical evidence regarding the risks of remaining untreated, the possible alternative
treatments and the risks and expected benefits of alternative treatments.
__________

7
It is within the trial court's discretion to believe the testimony of one party while disbelieving the
conflicting testimony of another party. In fact, it is well settled in Nevada that a trial court, as the trier of fact,
can disbelieve testimony even if uncontradicted. Fox v. First Western Savings and Loan, 86 Nev. 469, 470 P.2d
424 (1970).
consider the testimony of the patient as well as medical evidence regarding the risks of
remaining untreated, the possible alternative treatments and the risks and expected benefits of
alternative treatments. This evidence may also include testimony from witnesses who
observed the patients at the time they elected to undergo the treatment. No single type of
evidence is to be conclusive; rather, all the evidence must be considered by the fact-finder in
determining whether, had the full extent of the risk been known, the plaintiff would have
reasonably refused treatment. Credible evidence was presented at trial to support the trial
court's conclusion that Mr. Cotter would not have undergone the thyroidectomy if he had
known of the risk of permanent vocal cord paralysis. Cotter testified that if he had been told
of the risk of permanent vocal cord paralysis he would not have elected to have the surgery.
As noted, this evidence is not conclusive, but it can be considered by the fact-finder.
Evidence was also presented at trial that Cotter's thyroid problem was only a minor irritant
and that it only required medical attention every few months. Further, an abundance of expert
testimony (although at times conflicting) was presented on the issue of the risks of a total
thyroidectomy. Alternative treatments were addressed somewhat by Dr. Knoernschild who
testified that a subtotal thyroidectomy would have created less of a risk of vocal cord
paralysis. Also, there was some evidence regarding Cotter's prior treatment and certainly the
continuance of that treatment could have been seen as an alternative by the lower court. We
conclude that the trial court did not err in finding that the evidence supported the required
element of proximate cause in this case.
We affirm the judgment of the district court.
____________
107 Nev. 275, 275 (1991) McCurdy v. State
ENOCH EARL McCURDY, JR., and JOSEPH N. WARREN, Appellants, v. THE STATE
OF NEVADA, Respondent.
No. 21080
April 30, 1991 809 P.2d 1265
Consolidated appeals from judgements of conviction, pursuant to jury trial, of one count of
second degree murder with use of a deadly weapon (McCurdy), and of one count of first
degree murder with use of a deadly weapon (Warren). Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Gang member was convicted of first degree murder with use of deadly weapon. Second
gang member was convicted of second degree murder with use of deadly weapon.
degree murder with use of deadly weapon. Judgment was entered in the district court.
Defendants appealed. The supreme court held that: (1) evidence supported first degree murder
conviction; (2) defendant convicted of first degree murder was not entitled to benefits of
juvenile delinquency law; and (3) evidence supported conviction of second gang member for
second degree murder.
Affirmed.
Morgan D. Harris, Public Defender, Robert L. Miller, Deputy Public Defender, Clark
County, for Appellant McCurdy.
Gentile, Porter & Kelesis and Anthony P. Sgro, Las Vegas, for Appellant Warren.
Tufteland, Chief Deputy District Attorney, Abbi Logue, Deputy District Attorney, Clark
1. Homicide.
Evidence supported mental element of first degree murder, that killing be willful, deliberate and premeditated; defendant walked
up to rival youth gang during confrontation, knowing gun was loaded, pointed it at member of gang and pulled trigger. NRS 200.030,
subd. 1(a).
2. Infants.
Seventeen-year-old defendant who shot and killed a rival gang member was not entitled to treatment as a child, so as to require
that parent or guardian be notified; statute affording such protection did not apply to crimes of murder or attempted murder. NRS
62.040, subd. 1(b), 62.170, subd. 1.
3. Homicide.
Evidence supported conclusion that fifteen-year-old gang member who threatened rival gang with a gun, waiting for confrontation
to develop among opposing gang members, and then handed loaded gun to fellow gang member displayed necessary malignant
recklessness of others' lives necessary to sustain second degree murder conviction. NRS 200.010, 200.020, subds. 1, 2.
OPINION
Per Curiam:
Joseph Warren, aged seventeen, stands convicted of first degree murder. Enoch Earl
McCurdy, Jr., aged fifteen, was convicted of second degree murder.
The homicide in this case arose out of an affray involving members of conflicting youth
gangs. During the affray Warren shot and killed another youth.
Joseph N. Warren
[Headnote 1]
Warren claims that his conviction is not supported by the evidence. There is ample
evidence of Warren's guilt. Warren knew that his gun was loaded; and, according to one
witness, Warren just walked up and pointed and pulled the trigger. This is enough to
support the required mental element of first degree murder, that the killing be willful,
deliberate and premeditated. See NRS 200.030(1)(a); Briano v. State, 94 Nev. 422, 424-25,
581 P.2d 5, 7 (1978).
[Headnote 2]
Warren challenges the admission of his confession because he was not afforded the
protection afforded by law to a child, namely, that an officer who take[s] into custody any
child must immediately notify the parent, guardian or custodian of the child. NRS
62.170(1). NRS 62.040(1)(b)
1
excludes Warren from the statutory protection of NRS
62.170(1). This is not to say that an underaged murder suspect may in all instances be
interrogated without notifying his or her parents. Had Warren been an eight or nine-year-old
assailant, for example, fundamental fairness and due process would probably have demanded
that his parents be notified before police interrogation commenced. We need not worry about
this problem here, however. Warren was a young man of almost eighteen, and there is
nothing in this record to suggest that Warren should be treated differently from the way that
he would have been treated had he already reached his eighteenth birthday. He was not a child
in the usual sense of the word and was not reasonably, statutorily or constitutionally entitled
to have his parents present as a condition to police interrogation.
Warren's first degree murder conviction is affirmed.
Enoch Earl McCurdy, Jr.
[Headnote 3]
Enoch McCurdy claims that there is insufficient evidence to support his conviction of
second degree murder. To be guilty of murder McCurdy must have caused the death of
another human being while having that state of mind called in our statute "malice
aforethought, either express or implied."
__________

1
NRS 62.040(1)(b) provides as follows:
1. Except as otherwise provided in this chapter, the court has exclusive original jurisdiction in
proceedings:
. . . .
(b) Concerning any child living or found within the country who has committed a delinquent act. A child
commits a delinquent act if he:
(1) Commits an act designated a crime under the law of the State of Nevada except murder or
attempted murder . . . .
(Our emphasis.)
murder McCurdy must have caused the death of another human being while having that state
of mind called in our statute malice aforethought, either express or implied. NRS 200.010.
The record does not support a conclusion that McCurdy acted with express malice, for the
evidence reveals that McCurdy never possessed a specific intent to kill.
2
McCurdy did not
shoot the victim in this case; Warren did. What McCurdy did was to hand the gun to Warren
a short time before Warren shot the victim.
The question here presented is whether McCurdy's conduct, taken in the light most
favorable to the prosecution, was such that the jury was justified in concluding that he was
guilty of implied malice. Under NRS 200.020(2), malice shall be implied when no
considerable provocation appears, or when all the circumstances of the killing show an
abandoned and malignant heart.
As stated in Keys v. State, 104 Nev. 736, 740, 766 P.2d 270, 272 (1988), implied malice .
. . does not relate to a deliberate, intentional killing but is rather a mens rea inferred in law
from the circumstances of the killing. The circumstances of this killing were that McCurdy
approached the victim and his friends in order to stir up trouble. McCurdy threatened the
group with a gun, and this behavior eventually led to a confrontation involving opposing gang
members. During the turmoil, McCurdy handed Warren the loaded and cocked gun. Before
long, Warren joined the fight and eventually shot and killed Frank Perkins with the gun which
McCurdy had given him. Handing a loaded gun to Warren under these circumstances shows a
malicious lack of concern for human life. Implied malice signifies general malignant
recklessness of others' lives and safety or disregard of social duty. Thedford v. Sheriff, Clark
County, 86 Nev. 741, 744, 476 P.2d 25, 27 (1970). The jury could have properly concluded
that, from McCurdy's perspective, it should have been clear that handing the gun to Warren
under these circumstances was malignantly reckless and that death or serious injury was
likely to result. There is sufficient evidence in this case to support a jury finding of implied
malice on the part of McCurdy; therefore, McCurdy's second degree murder conviction is
affirmed.
__________

2
Under NRS 200.020(1), express malice is that deliberate intention unlawfully to take away the life of a
fellow creature . . . .
____________
107 Nev. 279, 279 (1991) Nicholson v. Nicholson
HERSHEL NICHOLSON, JR., Appellant, v. PAMELA NICHOLSON, Respondent.
No. 21192
April 30, 1991 809 P.2d 1267
Appeal from a district court order in a URESA action imposing arrearages and interim
support. Fifth Judicial District Court, Nye County; Paul C. Parraguirre, Judge.
Father appealed from order of the district court which required him to reimburse mother
for amounts expended on child during period of separation. The supreme court held that the
order was impermissible URESA court modification of a preexisting duty of support.
Reversed.
George R. Carter, Las Vegas, for Appellant.
Art Wehrmeister, District Attorney and Victor H. Schulze, II, Deputy District Attorney,
Nye County, for Respondent.
Court may not modify or nullify preexisting duty for support under the Uniform Reciprocal Enforcement of Support Act
(URESA). NRS 125B.030.
Where property settlement stated that it was a full, complete, and final settlement of all marital and property rights, including
claims for support for maintenance of either party and for family allowance, subsequent order requiring father to reimburse mother for
amounts which she had expended in support of the children during the period of separation was impermissible modification by a
Uniform Reciprocal Enforcement of Support Act (URESA) court of the preexisting duty of support. NRS 125B.030.
OPINION
Per Curiam:
Hershel Nicholson and Pamela Nicholson were separated in July 1988. Until October
1989, there was no order for support. On October 11, 1989, the Eighth Judicial District Court
granted a Decree of Divorce to Hershel and Pamela Nicholson. Incorporated into that
decree of divorce was a Property Settlement Agreement between the parties dated October
9, 1989. The Property Settlement Agreement purported to be a full, complete, and final
settlement of all their respective marital and property rights . . . including but not limited to,
all claims for support or maintenance of either party, inheritance, family allowance, marital
rights, homestead and each and every claim against the other arising from the marriage
or otherwise."
107 Nev. 279, 280 (1991) Nicholson v. Nicholson
ance, marital rights, homestead and each and every claim against the other arising from the
marriage or otherwise.
On December 21, 1989, Pamela Nicholson filed a URESA action in Nye County. Mrs.
Nicholson asked for arrearages based upon NRS 125B.030, claiming that her husband had a
duty to support the children during the separation period.
1

At the hearing on February 14, 1990, before Judge Parraguirre, Mr. Nicholson represented
that the divorce court had denied interim child support because Mrs. Nicholson had failed to
account for $9,500 which she had received for a spa, a satellite dish, and other items. This
representation was not contradicted by Mrs. Nicholson or her counsel.
The district court entered an order stating that appellant owed reimbursement in the
amount of $3,234.
[Headnotes 1, 2]
The law is clear that a URESA court may not modify or nullify a preexisting duty for
support. Vix v. State of Wisconsin, 100 Nev. 495, 686 P.2d 226 (1984); see also Taylor v.
Vilcheck, 103 Nev. 462, 470-71, 745 P.2d 702, 708 (1987) (URESA court cannot increase
prospective child support payments to an amount greater than that set forth in prior decree).
Appellant contends that, in the present case, the URESA court modified a preexisting duty of
support under the district court's order of October 11, 1989. We concur.
2

The Property Settlement Agreement incorporated into the district court order of October
11, 1989, included a full and final resolution of the issue of support payments. The
uncontradicted evidence shows that the district court declined to impose an interim support
obligation on Mr. Nicholson under NRS 125B.030 because Mrs. Nicholson refused to
account for $9,500 which she had received as proceeds for a spa, satellite dish, and other
items. Under such circumstances, imposition of support payments by the URESA court was
clearly a modification of the prior court order.
For the foregoing reasons, we reverse the judgment of the district court.
__________

1
NRS 125B.030 provides as follows:
Recovery by parent with physical custody from other parent. Where the parents of a child are separated,
the physical custodian of the child may recover from the parent without physical custody a reasonable
portion of the cost of care, support, education and maintenance provided by the physical custodian. In the
absence of a court order, the parent who has physical custody may recover not more than 4 years' support
furnished before the bringing of the action.

2
We do not determine, at this time, whether a URESA court has original jurisdiction to impose child support
under NRS 125B.030.
___________
107 Nev. 281, 281 (1991) Bivins Constr. v. State Contractors' Bd.
BIVINS CONSTRUCTION, Appellant, v. STATE CONTRACTORS' BOARD, Respondent.
No. 21280
April 30, 1991 809 P.2d 1268
Appeal from the district court's dismissal of appellant's petition for judicial review. Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
General contractor sought judicial review of decision of State Contractor's Board
suspending its license pending its payment of subcontractor's claim. The district court
dismissed general contractor's petition for judicial review, and general contractor appealed.
The supreme court, Young, J., held that: (1) action of State Contractor's Board, in limiting
general contractor's cross-examination to matters expressly covered on direct examination,
was contrary to rules applicable to matters before Board and amounted to violation of
contractor's due process rights, and (2) suspension of general contractor's license pending
payment of subcontractor's claim was tantamount to award of contract damages, and
exceeded authority granted to State Contractor's Board in license suspension proceedings.
Nitz, Walton & Hammer, Las Vegas, for Appellant.
Marquis, Haney & Aurbach and Philip J. Dabney, Las Vegas, for Respondent.
1. Constitutional Law; Licenses.
Action of State Contractors Board in proceeding to suspend contractor's license, in limiting contractor's cross-examination to
matters expressly covered on direct examination, was contrary to rules applicable to matters before Board and amounted to violation of
due process. U.S.C.A.Const. amend. 14.
Minimum procedural requirements established by Nevada Administrative Procedures Act may not be ignored. NRS 233B.010 et
seq.
Rudiments of fair play must be observed in administrative hearings.
4. Licenses.
Actions of State Contractors' Board in proceeding to suspend contractor's license, in limiting contractor's cross-examination to
matters expressly covered on direct examination, and in refusing to allow contractor to call witnesses or cross-examine other witnesses
presented against it, mandated reversal of Board's decision suspending contractor's license, notwithstanding contractor's failure to
formally object to curtailment of cross-examination. U.S.C.A.Const. amend. 14.
When reviewing administrative boards' actions, Nevada Supreme Court's review, like that of district court, is limited to record
below and to whether board acted arbitrarily or capriciously.
Procedural rights of parties before administrative body cannot be made to suffer for reasons of convenience or expediency.
7. Licenses.
Suspension of general contractor's license pending payment of subcontractor's claim was tantamount to award of contract
damages, and exceeded authority granted to State Contractors' Board in license suspension proceeding. NRS 624.300, subd. 1.
OPINION
Appellant, a general contractor, hired Pipes Paving to provide grading and paving at the
Red Rock Vista Phase II and Phase III sites in Clark County. Pipes Paving completed work on
Phase II and seventy-five to eighty percent of the work on Phase III. A dispute between
appellant and Pipes Paving resulted in Pipes Paving's discharge. Thereafter, appellant failed
to pay Pipes Paving any money owed on the contract.
Pipes Paving brought a complaint before respondent State Contractors' Board (hereinafter
Board). Appellant counterclaimed for costs incurred in completing the job after Pipes
Paving's dismissal. A hearing was held on March 16, 1989. The Board ordered that
appellant's license be suspended until Pipes Paving was paid the full amount it sought. A
reprimand was placed in appellant's file with the Board for violation of NRS 624.3012(2).
1
The Board took no action on appellant's counter-claim.
[Headnote 1]
At the hearing, appellant's cross-examination of William Pipes was limited because
members of the Board believed it was exceeding the scope of direct examination. Appellant
contends that this limitation was reversible error. We agree. NRS 233B.123(4)
2
expressly
permits cross-examination on any matter, even where such matter was not covered in direct
examination.
__________

1
NRS 624.3012(2) provides for disciplinary action by the State Contractors' Board when a licensee willfully
or deliberately fails to pay moneys due for material or services rendered in connection with his operations as a
contractor.

2
NRS 233B.123(4) provides:
Each party may call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on
any matter relevant to the issues
even where such matter was not covered in direct examination. The Nevada Administrative
Procedures Act (NAPA) also provides for judicial reversal of agency decisions made upon
unlawful procedure. NRS 233B.135(3)(c).
[Headnotes 2-4]
We find no merit in respondent's contention that appellant's failure to formally object to
the curtailment of his cross-examination precludes reversal on judicial review. The minimum
procedural requirements established by the NAPA may not be ignored. Gibson Co. v. Archie,
92 Nev. 234, 235, 548 P.2d 1366, 1367 (1976). The rudiments of fair play must be observed
in administrative hearings. Checker, Inc. v. Public Serv. Comm'n, 84 Nev. 623, 634, 446 P.2d
981, 988 (1968). The right to cross-examine witnesses in an adjudicatory proceeding is one of
fundamental importance. Its denial in this case amounted to a violation of due process.
[Headnote 5]
When reviewing an administrative board's actions, our review, like that of the district
court, is limited to the record below and to whether the board acted arbitrarily or capriciously.
McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). The record in this case
reveals several instances of arbitrary and capricious action by the respondent. In addition to
its premature curtailment of appellant's cross-examination of Mr. Pipes, the Board refused to
allow Bivins to call witnesses or cross-examine other witnesses presented by Pipes Paving. It
improperly cut off the examination of witnesses who were called. Documents which may
have been relevant to appellant's defense were not admitted. The totality of these incidents
reinforces our opinion that reversal is warranted.
[Headnote 6]
The record in this case leaves us with the impression that respondent was more concerned
with conforming to the time allotment it had established for conducting the hearing than with
affording due process to the parties. The procedural rights of parties before an administrative
body cannot be made to suffer for reasons of convenience or expediency. Checker, Inc. v.
Public Serv. Comm'n, 84 Nev. at 634, 466 P.2d at 988.
[Headnote 7]
We are also troubled by the Board's assumption of what was essentially a judicial role in
the resolution of this dispute. Its suspension of appellant's contractor's license pending
payment of Pipes Paving's claim was tantamount to the award of contract damages in a
contested case.
__________
even though such matter was not covered in the direct examination, impeach any witness regardless of
which party first called him to testify, and rebut the evidence against him.
Pipes Paving's claim was tantamount to the award of contract damages in a contested case.
The Board does not have the authority to impose damages upon parties subject to its licensing
authority. See NRS 624.300(1). The parties' claims and counter-claims regarding their
contract raised legal issues properly resolvable only by a court of law, if not by the parties
themselves. We trust the Board will be mindful of these implications in its future
decision-making.
Accordingly, we believe the court below erred in dismissing appellant's petition for
judicial review.
Springer, Rose and Steffen, JJ., concur.
General contractor Bivins stiffed subcontractor Pipes Paving by refusing to pay money
owed under the contract. The State Contractors' Board (hereinafter the Board) listened to all
of the relevant evidence and unanimously concluded that Bivins Construction's refusal to pay
any amounts owed under the contract was improper. The decision of the Board should be
upheld.
The majority finds that certain procedural requirements were violated and that these
violations warrant reversal. I find that there were no violations of any substance which
resulted in prejudice to Bivins.
The cross-examination of William Pipes was rather lengthy, consisting of over eleven
pages of trial transcripts. Near the end of that cross-examination, the Board inappropriately
limited counsel to the scope of direct examination. While the limitation was wrong, no
prejudice ensued. Counsel did not object to the limitation imposed by the Board, nor did
counsel make an offer of proof as to information which would have been forthcoming absent
the restriction. Moreover, counsel was offered an opportunity to ask additional questions. I
submit that under such circumstances, this issue should be precluded from judicial review.
See PET v. Department of Health Services, 542 A.2d 672, 683 (Conn. 1988) (in
administrative hearing before medical examining board, objection and offer of proof is proper
way to vindicate evidentiary ruling); see also Application of Portland General Elect. Co., 561
P.2d 154, 160 (Or. 1977) (the requirement that a party must have objected before the agency
to errors he asserts on judicial review is one facet of the general doctrine that a party must
exhaust his administrative remedies).
In addition to restricting the cross-examination of William Pipes, the Board restricted the
testimony of Mr. Fred Knobel.
Mr. Knobel was a competitor of Pipes Paving who testified that Pipes Paving was not using
its equipment to break up rock. However, Mr. Knobel also testified that he did not go onto the
job site until the end of July, which would have been after Pipes Paving was ordered to
remove its equipment from the site. The Board, properly finding Mr. Knobel's testimony to be
irrelevant (and incredible), declined to hear further testimony.
Other than these two incidents, there is nothing in the record to substantiate the majority's
contention that Bivins was denied due process. The majority's statement that Bivins was
denied opportunity to call witnesses or present documents is without any basis in fact.
A separate question addressed by the majority is whether the Board has the authority to
resolve contract disputes. I suggest that the Board should have limited authority to act in a
quasijudicial capacity.
While the Board does not have a blank check to resolve contract disputes, it is undisputed
that the Board has some discretion to impose conditions upon relicensing. See NRS 624.300.
I submit that the Board may legitimately impose a conditional suspension pending payment
by a general contractor of monies owed to a subcontractor, provided that the action taken is
primarily disciplinary in nature.
In the present case, since Bivins' employees signed the invoices in question, liability is
clear. Where there is no genuine dispute as to liability, the Board should have the authority to
conditionally suspend a contractor's license pending payment of the contract obligation. Such
an action may properly be viewed as a disciplinary measure.
____________
107 Nev. 285, 285 (1991) Haywood v. State
CHRISTOPHER D. HAYWOOD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21388
April 30, 1991 809 P.2d 1272
Appeal from a judgment of conviction of robbery, victim 65 years of age or older, and
attempted murder with use of a deadly weapon. Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
Defendant was convicted in the district court of robbery of victim 65 years of age or older
and attempted murder with use of deadly weapon, and he appealed. The supreme court held
that: {1) any error in police detective's reference to police gang unit while describing
different methods used to locate defense witness was harmless, and {2) error in allowing
prosecutor's references to fact that defendant was in custody between time of arrest and
trial was harmless in light of overwhelming evidence of guilt.
(1) any error in police detective's reference to police gang unit while describing different
methods used to locate defense witness was harmless, and (2) error in allowing prosecutor's
references to fact that defendant was in custody between time of arrest and trial was harmless
in light of overwhelming evidence of guilt.
Affirmed.
Morgan D. Harris, Public Defender and Robert L. Miller, Deputy Public Defender, Clark
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, and
James Tufteland and Daniel M. Seaton, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Any error in allowing police detectives to refer to police gang units in describing different methods used to locate a defense
witness was harmless in light of overwhelming evidence of guilt.
2. Criminal Law.
Defendant has constitutional right to appear before jury without physical restraints.
3. Criminal Law.
Informing jury that defendant is in jail raises inference of guilt and could have same prejudicial effect as bringing shackled
defendant into courtroom.
4. Criminal Law.
Even constitutional error can be comparatively insignificant if evidence of guilt is overwhelming.
5. Criminal Law.
Error in allowing prosecutor to make references to fact that defendant was in custody between time of arrest and trial was harmless
in light of overwhelming evidence connecting defendant to robbery and attempted murder, several witnesses positively identified
defendant, and shotgun shells which matched shell found in defendant's possession were found at scene of crime.
OPINION
Per Curiam:
Appellant Christopher D. Haywood (Haywood) stole a purse from the arm of an elderly
woman in the parking lot of the Showboat Hotel. Several witnesses saw the incident and
proceeded to chase Haywood. An officer chased him into a nearby restaurant parking lot.
While the officer was attempting to apprehend Haywood, Haywood shot him in the face with
a shotgun and ran off.
Numerous witnesses were able to identify Haywood as the perpetrator of both the robbery
and the shooting. Haywood was convicted of one count of robbery, victim 65 years of age or
older, and attempted murder with use of a deadly weapon.
Haywood asserts on appeal that statements made during trial were unduly prejudicial to
him. First, he asserts that a police detective improperly referred to the police gang unit when
discussing the department's attempt to locate a defense witness. Second, he asserts that the
prosecutor deprived him of his right to the presumption of innocence by referring to the fact
that Haywood had been held in custody between the time of his arrest and trial. We conclude
that these errors are harmless in light of the overwhelming evidence of guilt produced at trial.
[Headnote 1]
The police detective referred to the police gang unit in describing the different methods
that law enforcement used to locate a witness. Haywood asserts that juries assume that gangs
are entwined with criminal activity, and since the crime at issue was not gang-related,
mention of the gang unit was unnecessary.
We agree that gang-related testimony had no place at this trial. However, the statement
made at Haywood's trial had little, if any, prejudicial effect. First, the statement was not
solicited by the prosecution. The witness volunteered the term gang unit when discussing
the different methods law enforcement uses to locate someone. Second, the statement was
made in reference to a witness, not the defendant. Finally, the court had no opportunity to
give a limiting instruction on gang testimony because Haywood's trial counsel failed to make
a contemporaneous objection. For these reasons, a passing reference to the police gang unit
could not have affected the outcome of this case.
The prosecutor's references to Haywood's in-custody status, however, were improper.
Deputy District Attorney Dan Seaton cross-examined Haywood about jail visits that he
received from friends and relatives. After the jury left the courtroom, defense counsel
objected to this line of questioning, but the court determined that it was not prejudicial.
[Headnotes 2, 3]
However, a defendant has a constitutional right to appear before the jury without physical
restraints. United States v. Samuel, 431 F.2d 610 (4th Cir. 1970) (appellate court reserved
ruling until trial court could supplement the record with reasons why the defendant was
wearing handcuffs during trial); Chandler v. State, 92 Nev. 299, 550 P.2d 159 (1976)
(removing handcuffs in the courtroom was error, although harmless). Even though these
cases specifically refer to physical restraints, verbal references also may provide an
appearance of guilt that a jury mistakenly might use as evidence of guilt.
these cases specifically refer to physical restraints, verbal references also may provide an
appearance of guilt that a jury mistakenly might use as evidence of guilt. The rule that one is
innocent until proven guilty means that a defendant is entitled to not only the presumption of
innocence, but also to indicia of innocence. Illinois v. Allen, 397 U.S. 334 (1970); State v.
Baugh, 571 P.2d 779, 782 (Mont. 1977). Informing the jury that a defendant is in jail raises
an inference of guilt, and could have the same prejudicial effect as bringing a shackled
defendant into the courtroom.
[Headnotes 4, 5]
Still, we noted in Chandler that this type of error is not always prejudicial rather than
harmless. Chandler, 92 Nev. at 300, 550 P.2d at 160. When the evidence of guilt is
overwhelming, even a constitutional error can be comparatively insignificant. Chapman v.
California, 386 U.S. 18, 22 (1967); Guyette v. State, 84 Nev. 160, 438 P.2d 244 (1968). In
this case, five witnesses positively identified Haywood, and two others gave descriptions that
matched him closely. Haywood's own jacket, as well as shotgun shells matching a shell found
in Haywood's possession, were found at the scene of one of the crimes. Overwhelming
evidence connected Haywood with this crime. Therefore, we find the prosecutor's questions
about jail visits improper, but harmless beyond a reasonable doubt.
Accordingly, we affirm the judgment of the district court.
____________
107 Nev. 288, 288 (1991) State, Dep't of Mtr. Vehicles v. Tilp
Appellant v. FRANK A. TILP, Respondent.
No. 21435
April 30, 1991 810 P.2d 771
Appeal from an order of the district court reinstating respondent's driving privileges.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Department of Motor Vehicles appealed from an order of the district court which
reinstated motorist's driving privileges. The supreme court held that: (1) blood test results
were properly admitted; (2) motorist's admission that he had driven his truck just prior to
police officer's arrival at scene would constitute sufficient evidence to support conclusion that
motorist had driven motor vehicle while under influence of intoxicating beverage; and {3)
admission made without Miranda warning was admissible in license revocation hearing.
(3) admission made without Miranda warning was admissible in license revocation hearing.
Reversed.
Frankie Sue Del Papa, Attorney General, Carson City; Grenville T. Pridham, Deputy
1. Automobiles.
Where motorist's blood-alcohol test was performed upon blood sample, Department of Motor Vehicles was not required to
demonstrate that device used to analyze blood sample was properly calibrated; calibration regulations existed for breath testing devices,
not for blood testing devices. NRS 484.389, subd. 4.
2. Automobiles; Constitutional Law.
Motorist whose blood-alcohol test was performed upon blood sample was not denied equal protection merely because committee
on testing for intoxication was statutorily required to establish regulations for calibration of devices used to test blood-alcohol content
by breath sample, while committee was not required to adopt similar regulations for blood-alcohol test performed upon blood sample;
breath test is given by police officers who must complete four-hour breath test certification program to administer test but who are not
necessarily qualified to calibrate device used in test, while blood sample analysis is reliable test administered by persons who must
qualify as experts before their analysis of blood sample can be admitted, by affidavit, into evidence. NRS 484.3884, 50.315;
U.S.C.A.Const. amend. 14, 1.
3. Automobiles.
Motorist whose blood-alcohol blood test was performed by city police department employee should have obtained information
regarding blood analysis from city police department with subpoena duces tecum prior to administrative license revocation hearing if
he wanted such information, and Department of Motor Vehicles was not required to secure information from city police department on
motorist's behalf. NRS 484.389, subd. 3.
4. Automobiles.
That police officer, who was only witness that testified at driver's license revocation hearing, did not see allegedly intoxicated
motorist drive his truck did not mean there was insufficient evidence to support conclusion that motorist had driven motor vehicle
while under influence of intoxicating beverage where motorist had admitted to officer that he had driven his truck just prior to officer's
arrival at scene.
Police officer's testimony at driver's license revocation hearing that he was summoned to area because other individuals had seen
allegedly intoxicated motorist drive his car into another automobile was not impermissible hearsay because testimony was not offered
as proof that motorist had driven his car, but to indicate why officer was investigating accident. NRS 51.035, 51.065.
Defendant's admission made without Miranda warning was admissible at Department of Motor Vehicles driver's license
revocation hearing because hearing was a civil proceeding, not at criminal one. U.S.C.A.Const. amend. 5.
OPINION
Per Curiam:
THE FACTS
On January 30, 1989, at approximately five o'clock in the afternoon, a police officer
named Tracy McDonald was asked to investigate a motor vehicle accident that occurred near
Maryland Parkway in Las Vegas, Nevada. As Officer McDonald approached the accident
scene, he met a Clark County fireman named Joe Plank who was attending a separate and
unrelated accident in the vicinity. Fireman Plank told Officer McDonald that he and two
individuals had stopped a pickup truck after the truck collided with an automobile.
Officer McDonald then proceeded to a nearby restaurant where he met several individuals,
including the respondent, Frank Tilp. After Tilp was identified as the driver of the pickup
truck, Officer McDonald turned to Tilp and asked him what had happened. Tilp said he had
backed his truck out of a parking space in a rear alley by the restaurant and was driving it
onto a street when several individuals stopped him and made him exit from the vehicle. Tilp
also said he had been drinking. As Tilp talked, Officer McDonald noticed the smell of alcohol
on Tilp's breath. Tilp was given five sobriety tests. He was unable to complete any of the
tests, and he was arrested.
Tilp was taken to the Clark County Detention Center and was given his Miranda and
implied consent warnings. He acknowledged the warnings and agreed to a blood test. An
analysis of his blood showed it contained 0.24 percent by weight of alcohol. Therefore, an
officer's certificate of cause was filed by Officer McDonald revoking Tilp's driving privileges
in the State of Nevada. See NRS 484.384(3); NRS 484.385.
Tilp requested an administrative hearing to review the revocation of his driving privileges.
See NRS 484.385. The hearing was held on March 27, 1989. After considering the evidence
presented, the hearing officer concluded that Officer McDonald had reasonable grounds to
believe Tilp was driving a motor vehicle while under the influence of an intoxicating
substance and upheld the revocation of Tilp's license. Thereafter, a petition for judicial review
was filed with the district court, and oral arguments were heard on February 28, 1990.
Without explanation, the district court judge granted Tilp's petition for judicial review and
reinstated his driving privileges. The State of Nevada Department of Motor Vehicles and
Public Safety (Department of Motor Vehicles) appeals from the district court order.
THE BLOOD TEST RESULTS
At Tilp's administrative hearing, the Department of Motor Vehicles submitted an affidavit
from David P. Welch, an expert witness qualified to analyze the presence and amount of
alcohol in a sample of blood. This affidavit contained the results of Tilp's blood-alcohol test
results. Tilp argues the hearing officer should not have received the affidavit, and the blood
test results contained in the affidavit, as evidence. Further, Tilp reasons that without the
affidavit, there was insubstantial evidence to support a finding that Tilp had alcohol in his
bloodstream when he was arrested by Officer McDonald.
A.
[Headnote 1]
First, Tilp argues that the hearing officer was precluded from considering the
blood-alcohol test results contained in the affidavit because there was no evidence submitted
to the officer to show that the device used to analyze Tilp's blood sample was properly
calibrated prior to testing. In support of this argument, Tilp cites NRS 484.389(4), which
says:
Evidence of a required test is not admissible in a criminal or administrative
proceeding unless it is shown by documentary or other evidence that the law
enforcement agency calibrated the testing device and otherwise maintained it as
required by the regulations of the committee on testing for intoxication.
(Emphasis added.) We disagree with Tilp's assessment of this issue.
While the committee on testing for intoxication has established calibration regulations for
breath testing devices (see, e.g., NAC 484.680), it has not established similar regulations for
the maintenance or calibration of equipment used to test the alcohol content in a sample of
blood. See generally Chapter 484 of the Nevada Administrative Code. Therefore, since Tilp's
blood-alcohol test was performed upon a blood sample, and the Department of Motor
Vehicles cannot be expected to demonstrate compliance with nonexistent regulations, NRS
484.389(4) does not bar the admission of Tilp's blood test results.
B.
[Headnote 2]
Tilp persists, however, by asserting that his blood-alcohol test violated his right to equal
protection under the law. Tilp reasons he was treated inequitably because, while the
committee on testing for intoxication is statutorily required to establish regulations for the
calibration of devices used to test blood-alcohol content by a breath sample, the committee is
not required to adopt similar regulations for a blood-alcohol test performed upon a sample of
blood. See NRS 484.3884. Tilp argues an appropriate sanction for this alleged injustice is the
exclusion of his blood test results. We disagree.
No State shall . . . deny to any person within its jurisdiction the equal protection of the
laws. U.S. Const. amend. XIV, 1. The United States Supreme Court has interpreted this
clause and has ruled that [u]nless a classification trammels fundamental personal rights or is
drawn upon inherently suspect distinctions such as race, religion, or alienage, [the United
States Supreme Court's] decisions presume the constitutionality of the statutory
discriminations and require only that the classification challenged be rationally related to a
legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 299, 301 (1976).
Mandating special regulations for a blood-alcohol test performed upon a breath sample
does not trammel a fundamental personal right or discriminate based upon race, religion, or
alienage. Further, the legislative decision to require special calibration procedures for breath
testing devices is rationally related to a legitimate state interest founded upon the
circumstances surrounding the breath test.
1
Therefore, we reject Tilp's contention that he was
denied equal protection of the law.
C.
[Headnote 3]
Finally, Tilp argues the affidavit containing his blood test results should not have been
considered by the administrative hearing officer because this affidavit did not include full
information regarding the device used to test Tilp's blood sample. Tilp requested, in a
certified letter to the Department of Motor Vehicles, certain information regarding the
device used to test his blood.
__________

1
The breath test is given by law enforcement officers who must complete a four hour breath test certification
program to administer the test (see NAC 484.640) but who are not necessarily qualified to calibrate the device
used in the test. See NAC 484.660; NAC 484.620. On the other hand, the blood sample analysis is a reliable test
(see State v. Hall, 105 Nev. 7, 9-10, 768 P.2d 349, 350 (1989)) administered by persons who must qualify as
experts before their analysis of a blood sample can be admitted, by affidavit, into evidence. See NRS 50.315.
Vehicles, certain information regarding the device used to test his blood.
In general, a person charged with driving under the influence of an intoxicating liquor is
entitled to receive full information' regarding the machine used to test his blood samples and
is entitled to inspect the machine. See NRS 484.389(3). State v. Hall, 105 Nev. 7, 10, 768
P.2d 349, 350 (1989). However, Tilp's blood test was performed by a Las Vegas Metropolitan
Police Department (LVMPD) employee. Therefore, if Tilp or his attorney desired full
information regarding the blood analysis, this information should have been acquired from
LVMPD with a subpoena duces tecum prior to the administrative hearing. We conclude that
NRS 484.389(3) does not require the Department of Motor Vehicles to secure this
information from LVMPD on Tilp's behalf. Cf. State, Dep't of Mtr. Vehicles v. Clements, 106
Nev. 516, 519, 796 P.2d 588, 590 (1990) (if a party wants an original report, he can request
the report from the police agency through a subpoena duces tecum prior to an administrative
hearing). We reject respondent's contentions to the contrary.
OPERATION OF A VEHICLE
[Headnote 4]
Officer McDonaldthe only witness who testified at the administrative hearingdid not
see Tilp drive his truck in the parking lot of the restaurant. Therefore, Tilp argues there was
insufficient evidence submitted at the hearing to support a conclusion that Tilp had driven a
motor vehicle while under the influence of an intoxicating beverage or drug.
[Headnote 5]
However, as previously discussed in the fact scenario, shortly after witnesses summoned
Officer McDonald to the scene of the accident, Officer McDonald turned to Tilp and asked
him what had happened.
2
Tilp then responded with an admission that he had driven his truck
out of a parking space and into the street where several individuals stopped him. This
admission would constitute sufficient evidence to support the hearing officer's conclusion that
Tilp had driven a motor vehicle on the evening in question.
__________

2
Pursuant to the prohibition against hearsay evidence, Tilp argues Officer McDonald should not have been
allowed to tell the hearing officer that he was summoned to the area because other individuals had seen
respondent drive his car into another automobile. See NRS 51.035; NRS 51.065. However, we conclude the
officer's testimony that witnesses had reported an accident was properly allowed by the hearing officer, not as
proof that Tilp had driven his car, but to indicate why the officer was investigating an accident.
[Headnote 6]
However, Tilp argues his admission cannot be considered as evidence because he was not
Mirandized prior to the admission. See Miranda v. Arizona, 384 U.S. 436 (1966). This
argument is incorrect. A Department of Motor Vehicle license revocation hearing is a civil
proceeding, and a defendant's statement made without a Miranda warning is admissible at
such a proceeding. See State, Dep't of Mtr. Vehicles v. McLeod, 106 Nev. 852, 854-855, 801
P.2d 1390, 1392 (1990). Miranda warnings were not required in this case.
CONCLUSION
In sum, there was sufficient and properly accepted evidence produced at the administrative
hearing to support the revocation of Tilp's license to drive. Therefore, having concluded that
all of the arguments submitted by the respondent in this appeal are without merit, we reverse
the order of the district court and affirm the decision of the hearing officer.
_____________
107 Nev. 294, 294 (1991) Amoroso Constr. v. Lazovich and Lazovich
S. J. AMOROSO CONSTRUCTION COMPANY, Appellant, v. LAZOVICH and
LAZOVICH, dba L and L ROOFING COMPANY, Respondent.
No. 20532
April 30, 1991 810 P.2d 775
Appeal from a judgment on a jury verdict arising out of a construction contract. Second
Judicial District Court, Washoe County; Deborah A. Agosti, Judge.
Subcontractor brought action against general contractor for breach of contract and fraud.
The district court entered judgment for subcontractor, and general contractor appealed. The
supreme court, Rose, J., held that: (1) punitive damages were statutorily permissible, even
though jury only awarded compensatory damages for breach of contract, where verdict
contained no fraud damages because jury determined that breach of contract damages
adequately compensated for fraud; (2) trial court did not violate statute prohibiting jurors
from being forced to reveal their mental processes when trial court asked jury whether it
awarded no damages on fraud claim because it believed that subcontractor had already been
compensated for fraud in its award for breach of contract or because it believed that
subcontractor had not proved fraud by clear and convincing evidence; and (3) $1 million
punitive damages award would be reduced to $500,000, where punitive award equalled
approximately one-third of general contractor's $3 million net worth.
punitive award equalled approximately one-third of general contractor's $3 million net worth.
Affirmed in part and reversed in part.
[Rehearing granted in part August 29, 1991]
Lionel Sawyer & Collins and David N. Frederick, Las Vegas, for Appellant.
Robison, Belaustegui, Robb & Sharp, Reno, for Respondent.
1. Fraud.
Jury was free to have included punitive damages in its verdict for fraud, where trial court's instructions did not distinguish between
aggravated fraud, for which punitive damages are recoverable, and simple fraud, and defendant did not request that court make such
distinction. NRS 42.005, 42.010.
2. Damages.
Punitive damages are not available for breach of contract.
3. Damages.
Punitive damages are precluded in absence of compensatory damages for claim sustaining the punitive award.
4. Fraud.
Punitive damages were statutorily permissible, even though jury awarded compensatory damages only for breach of contract and
not for fraud, where verdict contained no fraud damages because jury determined that breach of contract damages adequately
compensated for fraud. NRS 42.005, 42.010.
5. Trial.
Time to determine whether verdict is inconsistent with state law is before court dismisses jury.
6. Trial.
Interrogatory asking jury whether it awarded no damages for fraud claim because jury believed that plaintiff had already been
compensated for fraud in award for breach of contract, or because jury believed the plaintiff had not proved fraud by clear and
convincing evidence, did not force jurors to reveal their mental processes in violation of statute; inquiry merely attempted to cure
inconsistency in verdict which also awarded punitive damages. NRS 50.065, subd. 2(a).
7. Fraud.
Punitive damages of $1 million awarded by jury to subcontractor and against general contractor, who had made false business
representations to procure more beneficial contract, was excessive and would be reduced to $500,000, where award equalled
approximately one-third of general contractor's net worth.
OPINION
S. J. Amoroso Construction Company (Amoroso) was the general contractor on a project
to reconstruct 130 condominium units, called the Tahoe Donner Ski Bowl Condominium
Complex {TahoeJDonner).
general contractor on a project to reconstruct 130 condominium units, called the Tahoe
Donner Ski Bowl Condominium Complex (Tahoe/Donner). Lazovich and Lazovich, dba L
and L Roofing Company (L&L) subcontracted to reshingle the roofs on the units for
$610,000. During the course of construction, a dispute arose over the roofing price. L&L
claimed that the project price had become commercially impracticable, and that the parties
had reached an accord that Amoroso would pay L&L on a time and materials basis. Amoroso
disputed that the parties had agreed to change the original contract price. In addition,
Amoroso produced three documents signed by Bob Lazovich, president of L&L, stating that
L&L had been paid in full and would not commence an action against Amoroso.
L&L sued Amoroso for breach of contract and fraud. L&L alleged that, (1) initially,
Amoroso fraudulently induced it to bid low by misrepresenting the number of roofing
shingles required; (2) Amoroso agreed to modify the contract and pay Lazovich on a time and
materials basis, and then breached the modified contract by claiming that it was never
formed; and (3) the three documents releasing Amoroso from further obligations were not
binding because L&L signed them under duress, in fear that Amoroso would withhold
payment on other current projects, and with the understanding that it would eventually be
paid for the Tahoe/Donner project.
The jury awarded L&L $637,765 in compensatory damages for breach of contract, zero
damages for fraud, and $1,000,000 in punitive damages. To clarify the verdict, the court sent
the jury the following interrogatory:
Compensatory damages have been awarded by the Jury on plaintiff's claim for
breach of contract.
No compensatory damages have been awarded by the Jury on plaintiff's claim for
fraud.
Did you award no damages for plaintiff's claim for fraud
(a) because you believe plaintiff has already been compensated for fraud in your
award for breach of contract.
or
(b) because you believe plaintiff has not proved fraud by clear and convincing
evidence.
Please answer (a) or (b).
Whereupon, the jury responded (a). The court accepted the jury's answer as an indication
that it found fraud and entered judgment for Lazovich in the amount of $1,872,869.20, made
up of compensatory and punitive damages plus interest and costs.
On appeal, Amoroso asserts that, (1) insufficient evidence was produced at trial to sustain
a finding of clear and convincing evidence of fraud; {2) the court should have stricken the
punitive damages award because punitive damages should only be permitted in cases of
aggravated fraud, not in cases of simple fraud; {3) the court's interrogatory violated NRS
50.065{2) because it impermissibly invaded the mental processes of the jury, and {4) the
punitive damages award was excessive.
evidence of fraud; (2) the court should have stricken the punitive damages award because
punitive damages should only be permitted in cases of aggravated fraud, not in cases of
simple fraud; (3) the court's interrogatory violated NRS 50.065(2) because it impermissibly
invaded the mental processes of the jury, and (4) the punitive damages award was excessive.
We conclude that assertions one and two have no merit, that the court's interrogatory was
proper, and that the punitive damages award was excessive in light of Amoroso's total assets.
[Headnote 1]
Neither the sufficiency of evidence nor the distinction between simple and aggravated
fraud warrant much discussion in this case. At trial, L&L produced several witnesses whose
testimony established all the elements of a fraud claim. Therefore, the jury's finding of fraud
was not erroneous. In its jury instructions, the court did not distinguish between aggravated
fraud and simple fraud, nor did Amoroso request that the court make such a distinction. Since
the jury found fraud without a qualifying adjective, it was free to have included punitive
damages in its verdict.
THE INTERROGATORY TO THE JURY
The interrogatory asked the jury to explain a facially contradictory verdict. Amoroso
asserts that the question forced the jurors to reveal their mental processes in violation of NRS
50.065(2)(a), which states that,
2. Upon an inquiry into the validity of a verdict or indictment:
(a) A juror shall not testify concerning the effect of anything upon his or any other
juror's mind or emotions as influencing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in connection therewith.
Amoroso suggests that instead of asking the jury how it reached a verdict that was
inconsistent with Nevada law, the court should have stricken the inconsistent part. Since the
jury awarded zero damages for fraud, the court simply should have stricken the entire
punitive damages award.
However, this court has permitted trial courts to ask juries to clarify verdicts. Eberhard
Mfg. Co. v. Baldwin, 97 Nev. 271, 628 P.2d 681 (1981) (a court may inform a jury why its
verdict is inconsistent and send the verdict back for further deliberation); Novack v. Hoppin,
77 Nev. 33, 359 P.2d 390 (1961). In Novack, the jury awarded exemplary damages but no
compensatory damages. Without a clarification as to why the jury gave an award that did not
comport with legal principles, this court had no choice but to remand for a new trial.
but to remand for a new trial. However, we stated that the defect in the award could have
been cured if the trial court had returned the verdict to the jury for further consideration. Id. at
44, 359 P.2d at 395.
[Headnotes 2-4]
In this case, the trial court faced the same dilemma as in Novack. Punitive damages are not
available on the count for breach of contract and are precluded in the absence of
compensatory damages for the claim sustaining the punitive award. Sprouse v. Wentz, 105
Nev. 597, 781 P.2d 1136 (1989) (punitive damages award stricken when plaintiff never
pleaded a claim sounding in tort). This jury found fraud which resulted in damages to L&L.
However, the verdict contained no fraud damages because the jury determined that the breach
of contract damages adequately compensated for the fraud. Under these circumstances,
punitive damages are statutorily permissible.
1

[Headnotes 5, 6]
Consequently, the time to determine whether a verdict is inconsistent with Nevada law is
before the court dismisses the jury. The interrogatory posed in this case did not ask the jurors
to reveal how they reached their decision. Instead, it simply asked what they meant by a
verdict which they could have arrived at by two different methods. Since one of those
methods was statutorily permissible but the other was not, it was incumbent upon the trial
court to determine what the jury intended by its verdict. The trial court's interrogatory is
exactly what we suggested in Novack. The inquiry cured the inconsistency in the verdict, and
saved the case from requiring a new trial.
THE AMOUNT OF THE PUNITIVE DAMAGES AWARD
[Headnote 7]
We evaluate an award of punitive damages in light of a non-exhaustive list of factors set
out in Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987). Two factors included in this
list are the culpability and the financial position of the tortfeasor. Id. at 510, 746 P.2d at 137.
Amoroso asserts that its net worth is $3,000,000, and therefore this judgment will cut its
assets by almost two-thirds.
In Ace Truck, two tortfeasors made false representations upon the sale of their business to
the plaintiffs. Each defendant's net worth was $1,626,000 and $705,700, and the punitive
damage awards were $500,000 and $300,000, respectively.
__________

1
NRS 42.010 provided for the type of punitive damages awarded in this case at the time this cause of action
arose, and NRS 42.005 provides for this type of punitive damages as of 1989.
awards were $500,000 and $300,000, respectively. Although we sustained the jury's finding
of fraud, we opined that the degree of culpability was not extravagant. Id. at 511, 746 P.2d at
137. Therefore, we cut each punitive damage award in half.
The fraud alleged in Ace Truck is similar to the fraud alleged here. In both cases, the
defendants made false business representations to procure a more beneficial contract for
themselves. Also, in both cases, the punitive damage awards equalled approximately
one-third of the defendant's net worth. Therefore, we conclude that the punitive damages
awarded in this case should be cut in half, from $1,000,000 down to $500,000. Punitive
damages are intended to punish, not to destroy. We thereby reduce the award in this case to
achieve a result consistent with that objective.
____________
107 Nev. 299, 299 (1991) Serpa v. Darling
JOHN C. SERPA, Appellant, v. MICHAEL DARLING, MURIEL H. DARLING AND
DARLING PROPERTIES CORPORATION, a Nevada Corporation, Respondents.
No. 20464
April 30, 1991 810 P.2d 778
Appeal from a judgement denying specific performance to appellant and quieting title in
respondents. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Action was brought for specific performance of option agreements for purchase of effluent
lands and water rights. The district court entered judgment denying specific performance to
plaintiff and quieting title in defendants, and plaintiff appealed. The supreme court, Young,
J., held that execution of contract for purchase of planned unit division (PUD) was not
consideration for separate option agreements between parties for purchase of effluent lands
and water rights, and did not permit purchaser to enforce options without tendering some
additional consideration.
Affirmed.
Crowell, Susich, Owen & Tackes, Carson City, Laura Wightman Fitzsimmons, Las Vegas,
for Appellant.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, and Mark Amodei, Carson City,
for Respondents.
1. Contracts.
Mutuality of obligation requires that unless both parties to contract are bound, neither is bound.
2. Contracts.
Lack of mutuality of obligation in option contract may be cured by presence of consideration.
3. Vendor and Purchaser.
Execution of contract for purchase of planned unit division (PUD) was not consideration for separate option agreements between
parties for purchase of effluent lands and water rights, and did not permit purchaser to enforce option agreements without tendering
some additional consideration.
Option agreements for purchase of effluent lands and water rights could not be enforced, where parties failed to agree on
conditions for exercise of options.
Contract for purchase of planned unit division (PUD) was severable from option agreements between parties for purchase of
effluent lands and water rights, where agreements made no references to each other, and where escrow on PUD was opened and closed
while exercise of option properties could have been delayed for as much as seven years.
6. Contracts.
Whether contract is entire, or separable into distinct and independent contracts, is question of intention of parties, to be ascertained
from language employed and subject matter of contract.
7. Specific Performance.
Decision to grant specific performance of contract is addressed to sound discretion of trial court and will not be disturbed on
appeal unless abuse of discretion is shown.
To be awarded specific performance, purchaser who has not tendered purchase price must demonstrate that she is ready, willing,
and able to perform.
Party holding options for purchase of effluent lands and water rights failed to make valid tender of option monies, and was not
entitled to specific performance of options based on its failure to demonstrate that it was ready and willing to perform, where option
monies were delivered to title company for payment to option grantor only upon grantor's satisfaction of various conditions.
Specific performance is available only when terms of contract are definite and certain, remedy at law is inadequate, performance
has been tendered, and court is willing to order it.
OPINION
Respondent Michael Darling owned several parcels of land known as the Empire Ranch,
located adjacent to the Carson River in Carson City.
known as the Empire Ranch, located adjacent to the Carson River in Carson City. In 1979,
Darling subdivided part of the ranch into a planned unit division, or PUD. During the late
summer and early fall, the appellant Serpa and Darling entered into negotiations regarding the
purchase of Darling's property.
On September 24, 1985, the parties signed a Letter of Intent wherein they agreed to
bargain in good faith in connection with negotiating a final agreement for the purchase
and/or option to purchase Darling's property. The Letter of Intent stated that it would
continue in effect for a period not to exceed 30 days.
The parties continued negotiations and, on December 16, 1985, executed several
documents that superseded the Letter of Intent, including the following: a Master Agreement;
purchase and sale agreements of the PUD; an option to purchase effluent lands; an option to
purchase water rights; and an Addendum to the agreement. The Master Agreement does not
incorporate the other agreements but does refer to them.
Under the option agreements, Serpa had ninety days from the date of execution to pay
Darling the total sum of $140,000 for the two options in consideration for Darling granting
to Serpa the option to purchase . . . . Additionally, annual option payments totaling $100,000
were due one year from the date of execution. The combined purchase price for the effluent
option and the water rights option was $1,240,000, with each payment to be applied against
the total purchase price. The option periods were seven years; if Serpa failed to exercise the
options, Darling would retain all payments.
The Addendum provided that Serpa had ten days to approve of the preliminary title reports
and the status of five other listed items and that, if Serpa objected to any of the items, Darling
was to use due diligence to resolve such objections at his own expense before close of
escrow.
On December 26, 1985, ten days after the execution of the above agreements, Serpa's
attorney, Bill Crowell, delivered to Darling's attorney, Scott Heaton, a letter (Letter of
Exceptions) concerning the objections contained in the Addendum.
An escrow was opened on February 14, 1986, and the sale of the PUD to Serpa was closed
on March 24, 1986. The parties continued to negotiate during this time as to the option
agreements. On February 21, 1989, the parties executed a Memorandum of Agreement
concerning the sale of the PUD. This Memorandum also provided that, if Serpa failed to pay
Darling for the PUD, the option agreements would be rendered null and void.
On March 17, 1986, the initial option payments of $140,000 were due to Darling from
Serpa pursuant to the option agreements allowing for ninety days.
were due to Darling from Serpa pursuant to the option agreements allowing for ninety days.
Darling made no demand on March 17, 1986, for the initial option payments.
On April 10, 1986, Sepra wrote to Darling and informed him that he would deposit
the full $140,000 on the options with releases of $50,000 as soon as we agree what is to
be settled on with Scott Heaton and Bill Crowell as the final written agreement.
Another $50,000 when the items in Scott Heaton's letter of 3/31/86 are meet [sic]
(pages 1 & 2) and the final $40,000 when items on page 3 are settled. I also believe
Sierra Land Title Co. should hold title to items in each option until they are paid for in
full and can be transferred [sic] to myself.
Serpa deposited three checks totalling $140,000 with Sierra Land Title Co. shortly thereafter.
In order to receive the money, Darling had to go to the title company and sign instructions
(agree to conditions) for the options. An escrow was never opened for the option properties.
On April 16, 1986, Heaton wrote a letter to Crowell noting that the $140,000 in option
payments was due on March 17, 1986, and requesting payment. One week later, Crowell
wrote to Heaton and expressed continued frustration with Darling's progress in satisfying the
exceptions and offered an outright purchase of the option properties.
The parties apparently attempted to negotiate an outright purchase of the option properties
but no agreement was ever reached.
Darling continued to exercise due diligence to satisfy Serpa's objections until July 14,
1986, when Darling wrote to Serpa, through Crowell, and informed him that the option period
had expired on March 17, 1986, due to non-payment. However, the letter extended the period
until August 1, 1986, and stated that Serpa had until that date to exercise the options for the
properties on an as is basis. It also indicated that the period of due diligence was over.
On August 1, 1986, Crowell wrote to Andrew MacKenzie, Darling's new attorney, and
demanded performance by Darling to remove the objections from the option properties,
stating that [t]here is no agreement in existence that requires us to take the property where is
and as is . . . .
On November 19, 1986, MacKenzie wrote to Crowell informing him that, because Serpa
failed to timely close the escrow (exercise the options), the agreement to purchase the option
properties was terminated. Serpa then responded with a threat to pursue legal action and, on
January S, 19S7, filed a notice of lis pendens.
pursue legal action and, on January 8, 1987, filed a notice of lis pendens.
After a bench trial, the district court concluded that no contract existed between Serpa and
Darling because the Addendum provided that Serpa was not bound until he approved of the
conditions in the Addendum. The court also found that, because Serpa failed to exercise the
options by tendering payment to Darling, Serpa was precluded from seeking enforcement of
Darling's performance under the option agreements.
Appellant first contends that the district court erred in concluding that the Addendum
attached to the December 16, 1985, agreements made them unenforceable because it made
appellant's obligation to perform contingent upon his approval of the six items listed in the
Addendum. The district court reasoned that the items in the Addendum acted as conditions
precedent to the existence of a contract. We conclude that, because the instant agreements
were supported by neither mutuality of obligation nor consideration, the district court was
correct in its determination that the agreements are unenforceable.
[Headnotes 1-3]
We have previously stated that [m]utuality of obligation requires that unless both parties
to a contract are bound, neither is bound. Sala & Ruthe Realty, Inc. v. Campbell, 89 Nev.
483, 487, 515 P.2d 394, 396 (1973). While a lack of mutuality of obligation in an option
contract may be cured by the presence of consideration, in this case neither mutuality of
obligation nor consideration was present. The language of the agreements themselves is clear
and unambiguous as to the requirement of consideration. We therefore reject appellant's
assertion that the execution of the PUD contract acted as consideration for the option
agreements. See Club v. Investment Co., 64 Nev. 312, 323, 182 P.2d 1011, 1016 (1947).
[Headnote 4]
Furthermore, we note that appellant requests specific performance of the option
agreements. Not only do the conditions and failure to tender consideration prohibit formation
of a valid contract, we note that the conditions outlined in appellant's December 26, 1985,
Letter of Exceptions exceed the scope of the conditions as detailed in the parties' December
16, 1985, Addendum to the agreements. This persuades us that the option agreements cannot
be enforced since the parties themselves failed to agree upon the terms.
[Headnote 5]
Appellant next contends that the agreements were not severable because the purchase
and sale agreement of the PUD was contingent upon the conditions relevant to the
options as laid out in the Addendum.
because the purchase and sale agreement of the PUD was contingent upon the conditions
relevant to the options as laid out in the Addendum. While the Master Agreement does refer
to both the option properties and the PUD, it does not incorporate the option documents.
Furthermore, the PUD purchase was completed. Escrow on the PUD was opened and closed,
while the exercise of the option properties could have been delayed for seven years. This
segregated performance of the PUD from the non-exercised option agreements constitutes
evidence of severable contracts. See Dredge Corp. v. Wells Cargo, Inc., 82 Nev. 69, 73, 410
P.2d 751, 754 (1966) (A contract is divisible where, by its terms, performance of each party
is divided into two or more parts . . . .).
[Headnote 6]
Additionally, the language of the agreements creates severable agreements: the option
agreements make no reference to the Master Agreement or to the purchase and sale agreement
of the PUD. As for the subject matter of the agreements, the purchase and sale agreement
involved the PUD, whereas the option agreements involved effluent lands and water rights.
Whether a contract is entire, or separable into distinct and independent contracts, is a
question of the intention of the parties, to be ascertained from the language employed and the
subject-matter of the contract. Sprouse v. Wentz, 105 Nev. 597, 605, 781 P.2d 1136, 1140
(1989) (quoting Linebarger v. Devine, 47 Nev. 67, 72, 214 P. 532, 534 (1923)).
[Headnote 7]
Finally, appellant contends that specific performance of the option agreements should be
awarded. Not only is enforcement of a nonenforceable contract impossible, we have
previously stated that the decision to either grant or refuse specific performance is addressed
to the sound discretion of the trial court and will not be disturbed on appeal unless an abuse
of discretion is shown. McCann v. Paul, 90 Nev. 102, 103-104, 520 P.2d 610, 611 (1974).
See also Carcione v. Clark, 96 Nev. 808, 618 P.2d 346 (1980).
[Headnotes 8, 9]
To be awarded specific performance, a purchaser who has not tendered the purchase price
must demonstrate that she is ready, willing, and able to perform. Cohen v. Rasner, 97 Nev.
118, 624 P.2d 1006 (1981). Appellant was not ready and willing to perform because tender of
the option monies was never effectuated. We find appellant's argument that a valid tender was
made by placing checks at the title company unpersuasive since respondent had to satisfy
conditions in order to secure release of the money and these checks were not placed in
escrow.
ent had to satisfy conditions in order to secure release of the money and these checks were not
placed in escrow.
[Headnote 10]
Specific performance is available only when: (1) the terms of the contract are definite and
certain; (2) the remedy at law is inadequate; (3) the appellant has tendered performance; and
(4) the court is willing to order it. Carcione, 96 Nev. at 811, 618 P.2d at 348. Even if we were
to conclude that the agreements between the parties were enforceable and that appellant
tendered performance, we do not find the terms of the parties agreement to be sufficiently
definite and certain to allow specific performance.
We conclude that the district court did not err in finding that the agreements were
unenforceable and in quieting title in Darling. We therefore affirm the judgment of the district
court.
The parties entered into eight agreements for the sale of Darling's ranch to Serpa. The
district court concluded that the agreements were severable and that, because of language in
an addendum, the other contracts were made illusory and therefore unenforceable. Since both
of these findings are erroneous, I cannot join in affirming the lower court's decision.
When several contracts are executed, an initial determination often must be made as to
whether the contracts are to be viewed as a whole or as individual, severable agreements. In
doing this, this court will make an independent review of the contracts and, if necessary,
testimony surrounding their execution to determine the intent of the parties. As we stated in
Sprouse v. Wentz, 105 Nev. 597, 781 P.2d 1136 (1989):
Whether two agreements constitute a single, inseverable contract or two separate
contracts is a question of law. Linebarger v. Devine, 47 Nev. 67, 72, 214 P. 532, 534
(1923); Bethea v. Investors Loan Corp., 197 A.2d 448 (D.C.App. 1964). We have
announced that [w]hether a contract is entire, or separable into distinct and
independent contracts, is a question of the intention of the parties, to be ascertained
from the language employed and the subject-matter of the contract.' Linebarger, 47
Nev. at 72, 214 P. at 534.
105 Nev. at 605, 781 P.2d at 1140. Our first task is to determine the parties' intent in
executing the contractwas it essentially for the sale of various parts of the ranch
separately with each agreement to be independent of the other, or were the contracts
intended as a sale of the entire ranch, but contained in a number of documents?
the sale of various parts of the ranch separately with each agreement to be independent of the
other, or were the contracts intended as a sale of the entire ranch, but contained in a number
of documents?
Serpa was interested in purchasing Darling's entire ranch. The parties initially executed a
document entitled Letter of Intent, which stated that each would negotiate in good faith to
option the entire ranch to Serpa for about three million dollars. As the parties entered into
negotiations to finalize the ranch sale, the intent was to accomplish the sale or option to sell
to Serpa the entire ranch.
Darling insisted on retaining the headquarters portion of the ranch and Serpa acceded to
this. The parties then agreed that the remaining ranch would be available to Serpa in three
segments through agreements to purchase or options to purchase. First, there was a planned
unit development (PUD) area, that Darling had created. Second were the water rights to the
property, and third was the land that received effluent pursuant to a contract with Carson City.
However, prior to and during the negotiations, Serpa insisted that he did not want the PUD
without the other two segments because he felt the water rights and effluent contract were
more valuable and necessary for the final development of the ranch as a whole.
After negotiations, the parties entered into eight agreements for the sale of the ranch to
Serpa, with the sole exception of the ranch headquarters. The first was entitled Master
Agreement and it was to memorialize the parties' intentions. It then referred to the other
agreements that dealt with the sale or option of the three specific portions of the ranch.
After reading the Letter of Intent and the eight agreements, there is no doubt that the
parties intended the sale to be for the entire ranch and the agreements were not divisible. And
if there was the slightest doubt, it was removed by the testimony of Darling's own attorney,
Scott Heaton, who prepared the agreements. He stated that [i]t was always my understanding
that all of these agreements were integrated documents, that none of them stood by
themselves and that this was the intention of the parties.
In Sprouse, the parties entered into agreements to exchange their ranches and cash.
Subsequently, the parties entered into other agreements for the exchange of livestock by sale
or option to purchase. The district court held that the livestock agreements were severable
from the agreements for the sale of land. But upon independent review, this court determined
that the land and livestock sales were intended by the parties to be interdependent and
integrated, and therefore not severable.
If the agreements in Sprouse were not severable, the agreements in this case, executed at
the same time and dealing with the sale of one ranch, certainly are not. The record establishes,
at least by a preponderance of the evidence, that the agreements were to accomplish the sale
or option of the entire ranch to Serpa and that they were interdependent and integrated, not
severable.
The second error I believe the district court made was in concluding that the addendum to
the seven agreements made them illusory and therefore unenforceable. The reason for such a
conclusion was that the agreement gave Serpa the opportunity to review the status of the
property and water rights and he could eventually terminate the contract if his objections were
not eliminated. While this issue presents a closer question, I do not think the addendum
rendered the contracts conditional or made the seven preceding agreements uneforceable.
When the parties met to execute the agreements which Darling's attorney had prepared,
Serpa realized that there were a number of loose ends that had not been finalized. He had not
received a preliminary title report to see if title was as Darling represented, there was
uncertainty as to the status of Darling's contract and subsequent negotiations with Carson City
regarding the effluent, and the open area designation by Carson City on the PUD property had
to be confirmed. Therefore, an addendum was added to the previously prepared agreements
addressing these concerns, and it was executed by the parties along with the other
agreements. The addendum provided that Serpa would have ten days to approve the status of
those areas of concern. If Serpa had any objections, Darling was to use due diligence to
eliminate them. If he could not, Serpa would then have the opportunity to elect to terminate or
purchase, subject to such objections.
1
The district court held that the provision giving
Serpa the right to object to certain information and then terminate the agreements if the
objections were not removed made the entire sale conditional and, in effect, gave Serpa
an option to cancel.
__________

1
Specifically, the clause stated as follows:
The undersigned hereby agree as follows:
Buyer shall have a period of ten (10) days from the date hereof to approve the following:
1. The Preliminary Title Reports for all subject properties;
2. The status of the PUD property, particularly the open area designation and any other conditions
existing as of the date hereof;
3. The status of the water rights;
4. The status of the real property taxes, particularly any deferred taxes;
5. The number and status of the existing PUD lots;
6. The status of all effluent negotiations and agreements between the Seller and Carson City.
Seller to furnish Buyer a written statement of status.
If Buyer objects to any of the foregoing items, Seller shall use due diligence to resolve such
objections at his own expense before close of escrow.
If such objections cannot be resolved before close of escrow, all
The district court held that the provision giving Serpa the right to object to certain
information and then terminate the agreements if the objections were not removed made the
entire sale conditional and, in effect, gave Serpa an option to cancel. In reaching this
conclusion, the court relied on Sala & Ruthe Realty, Inc. v. Campbell, 89 Nev. 483, 515 P.2d
394 (1973).
In Sala, a real estate broker sued for a commission he believed he earned when the owner
of a motel entered an offer and acceptance agreement with a prospective purchaser, but
conditioned the purchase on the buyer's approval of an inventory and accounting within ten
days from the date of the offer. We held that this approval clause was a condition precedent to
the existence of a contract and made the buyer's promise illusory because he was not
obligated to perform. While Sala is somewhat persuasive for the plaintiff, I do not think it is
factually the same as this case or controlling.
Serpa was given the right to object to any liens or other problems with the preliminary title
report and with the status of the water rights, the effluent contract with Carson City, and the
PUD property. In the agreement and options, Darling had warranted that he had clear title to
the property and that his water rights and effluent contract with Carson City were as
represented. The addendum was merely to give Serpa the opportunity to check and see if the
representations made by Darling were correct. And if Serpa objected, Darling was given the
opportunity to satisfy the problem or cure the objection. Only if Darling failed to remove or
cure the objection could Serpa terminate the agreements. This factual situation is easily
distinguishable from that of Sala and the addendum did not make the agreements and options
illusory.
I find this case more akin to those where an agreement is conditioned upon a specific
event, performance or status being met to the buyer's satisfaction. See Jenkins Towel Service,
Inc. v. Tidewater Oil Co., 223 A.2d 84 (PA. 1966) (contract for sale of real property
contingent upon vendors obtaining curb cut permit satisfactory to purchaser); Converse v.
Fong, 205 Cal.Rptr. 242 (Ct.App 1984). And in Parsons Drilling, Inc. v. Polar Resources, 98
Nev. 374, 649 P.2d 1360 (1982), we held that where a buyer was given the option to
terminate the contract by returning the purchased rig, the exercise of such contractual
right to terminate was enforceable.
__________
rights and obligations hereunder may, at the election of the Buyer, terminate unless Buyer elects to
purchase the property subject to such objections.
In all escrows between the parties, the following terms shall prevail:
1. Seller shall furnish title insurance at his cost, together with paying the documentary transfer tax for
any deeds;
2. The remaining costs and expenses of escrow, excluding survey costs, quiet title actions, and the
like, shall be divided and paid equally.
returning the purchased rig, the exercise of such contractual right to terminate was
enforceable. We reached this result by concluding that the seller had no right to claim rent for
the time the rig was used because this was not an equitable rescission of a contract, but rather
a contractual termination. I see little difference between the right to terminate in the Parsons
case and the case at bar.
Because I believe the district court erred in reaching the two conclusions as I have stated, I
would reverse the judgment and remand the case for a new trial.
___________
107 Nev. 309, 309 (1991) Stubli v. Big D International Trucks
LAWRENCE STUBLI, Appellant, v. BIG D INTERNATIONAL TRUCKS, INC., and THE
BUDD COMPANY, Respondents.
No. 20260
April 30, 1991 810 P.2d 785
Appeal from an order granting respondents' motion to dismiss. Second Judicial District
Court, Washoe County; Roy L. Torvinen, Judge.
Truck driver who was involved in single vehicle accident brought products liability and
negligent repair action against company which had manufactured truck trailer and company
which had repaired trailer's suspension system. The district court granted defendants' motion
to dismiss based on destruction of trailer just prior to filing of truck driver's complaint, and
truck driver appealed. The supreme court, Young, J., held that dismissal of truck driver's
action was appropriate discovery sanction.
Affirmed.
Bradley & Drendel and Thomas Drendel, Reno, for Appellant.
Laxalt & Nomura, Reno, and Ericson, Thorpe, Swainston & Cobb, Reno, for Respondents.
1. Appeal and Error; Pretrial Procedure.
Selection of sanction for discovery abuses is generally matter committed to sound discretion of district court; however, district
court's decision is reviewed under somewhat heightened standard where sanction imposed is one of dismissal with prejudice. NRCP
37.
Discovery sanction of dismissal must be just and must relate to claims at issue in discovery order which was violated.
Discovery sanction of dismissal should be imposed only after careful consideration of all of the relevant factors, and must be
supported by express, careful, and preferably written explanation of district court's analysis. NRCP 37.
In deciding whether dismissal is appropriate sanction for party's discovery abuses, district court may properly consider: degree of
willfulness of offending party; extent to which nonoffending party would be prejudiced by lesser sanction; severity of sanction of
dismissal relative to severity of discovery abuse; whether any evidence has been irreparably lost; policy favoring adjudication on
merits; whether dismissal would unfairly operate to penalize party for misconduct of his or her attorney; and need to deter parties and
future litigants from similar abuses. NRCP 37.
Dismissal of plaintiff's products liability and negligent repair action was appropriate sanction for actions of plaintiff's attorney and
expert in authorizing sale for salvage of truck trailer involved in accident, just prior to filing of complaint, thereby preventing
defendants from examining wreckage to contest plaintiff's claim that accident was caused by allegedly defective design and repair of
trailer's suspension system; imposition of any lesser sanction would be insufficient to cure prejudice sustained by defendants. NRCP
37.
OPINION
This is an appeal from an order, entered as a sanction pursuant to NRCP 37, dismissing
appellant's complaint due to appellant's failure to preserve evidence. For the reasons
expressed below, we affirm.
FACTS
On June 27, 1984, Appellant Lawrence Stubli, a self-employed truck driver, was involved
in a single vehicle accident while driving his tractor-trailer rig on Interstate 80 in Wyoming.
The accident occurred when the rig went off the highway into the median and rolled onto its
right side. The damaged trailer was subsequently stored at a wrecking yard in Rock Springs,
Wyoming.
Stubli's 45-foot refrigerator trailer was manufactured by respondent The Budd Company
(Budd) and purchased by Stubli in 1981. Stubli claims that, from the outset, he experienced
misalignment problems with the trailer's suspension system. As an apparent consequence of
these problems, one of the suspension system components, the right front
"springhanger," eventually separated from the trailer frame.
an apparent consequence of these problems, one of the suspension system components, the
right front springhanger, eventually separated from the trailer frame. Respondent Big D
International Trucks (Big D) of Reno, Nevada, repaired the broken springhanger by welding it
back to the trailer frame in December of 1983.
Following the accident, Stubli submitted a claim to his insurer, Northwestern National
Insurance Company (Northwestern). The claim was handled by WRG Claims Management
(WRG) of Milwaukee, Wisconsin, and investigated by Mark Ingersoll of Idaho Intermountain
Claims. During the investigation and pursuant to WRG's instructions, Ingersoll retained a
mechanical engineer, Dr. Rudi Limpert, to inspect the trailer wreckage for mechanical defects
before it was discarded as salvage.
After examining and photographing the damaged trailer, Limpert submitted the
photographs and a detailed report of his findings to Ingersoll on September 20, 1984. In his
report, Limpert opined that the right front springhanger had fractured from the frame,
causing the right front dual wheels of the trailer to move backward and to lock up against the
right center springhanger, which in turn caused the center springhanger to tear partially from
the frame resulting in a similar rearward displacement of the right rear dual wheels. This
sequence of events, concluded Limpert, caused the rear of the trailer to steer to the right, the
tractor to steer to the left, and thus forced the entire rig into the median where it crashed.
Limpert further concluded that the cause of this catastrophe was an inadequate weld repair
job by Big D.
After receiving this information, Northwestern retained Ohio attorney John McCarthy,
who was also representing Stubli's interest in the matter, to handle its subrogation claim. In an
October 30, 1984 letter confirming McCarthy's retention, a Northwestern representative, J. C.
Partleton, informed McCarthy that the trailer wreckage was in storage, that it would remain in
storage until all interested parties have had a chance to examine it, and that Budd and Big D
should be notified that Northwestern planned to assert a subrogation claim. In a January 18,
1985 letter to McCarthy, Northwestern Claim Supervisor Harold Gross advised McCarthy
that fees for storing the trailer would soon surpass the trailer's salvage value. Thus, Gross
requested that McCarthy expedite any additional inspections and inquired whether there
would be any harm in inviting [Budd] to inspect the trailer.
Neither Budd nor Big D received such an invitation to inspect the wreckage. Instead,
McCarthy instructed Limpert by letter dated February 6, 1985, to go to the storage area and
disengage the bogie (sliding axle assembly) and transport the same to your storage facility."
storage facility. In turn Limpert instructed his assistant, a Mr. Andrews, to go out and get
the failed part. Andrews then had a storage yard worker sever the right front springhanger,
and that portion of the trailer frame from which the front springhanger had separated, from
the remainder of the trailer. By letter dated February 18, 1985, Limpert advised McCarthy
that the slider assembly and associated parts had been removed and placed in Limpert's
storage facility.
On February 22, 1985, McCarthy referred Stubli's case to counsel in Reno, Nevada. On
March 8, 1985, McCarthy informed Ingersoll that Limpert had removed the basic assembly
that we're concerned with as it relates to the development of a product liability defect, and
advised Ingersoll that it was no longer necessary to store the trailer. As a result, the trailer
wreckage, except for the front springhanger and frame section in Limpert's custody, was
discarded as salvage.
On May 14, 1985, Stubli filed a complaint against Big D in Washoe County, Nevada. On
April 18, 1986, Stubli filed an amended complaint alleging that his damages to person and
property were caused by Big D's inadequately performed weld repair, and Budd's defectively
designed trailer. Despite discovery efforts by Big D as early as September 1985, Limpert's
report and photographs were not provided to respondents until August of 1988. At that time,
respondents also learned that the trailer wreckage, less those portions in Limbert's custody,
had been discarded.
Big D thereafter filed the instant motion to dismiss pursuant to NRCP 37. Budd joined in
the motion. Attached to the motion were the affidavits of two defense experts. Those experts
claimed that, rather than failing prior to the crash, the front springhanger may well have
fractured as a result of the crash impact. The experts further asserted that appellant's failure to
preserve the trailer, specifically the partially torn center springhanger and corresponding
frame section, tires, axle bearings and torque rod bushings, had made it impossible for
respondents to establish their defense theory. Respondents' motion was submitted and on July
6, 1989, the district court entered an order granting the motion. This appeal followed.
DISCUSSION
[Headnote 1]
Selection of a particular sanction for discovery abuses under NRCP 37 is generally a
matter committed to the sound discretion of the district court. See, e.g., Fire Ins. Exchange v.
Zenith Radio Corp., 103 Nev. 648, 649, 747, P.2d 911, 912 (1987); Kelly Broadcasting v.
Sovereign Broadcast, 96 Nev. 1SS, 192
Kelly Broadcasting v. Sovereign Broadcast, 96 Nev. 188, 192, 606 P.2d 1089, 1092 (1980).
However, we have recently held that a somewhat heightened standard of review shall apply
where the sanction is one of dismissal with prejudice. Young v. Johnny Ribiero Building, 106
Nev. 88, 787 P.2d 777 (1990).
[Headnotes 2-4]
In Young, we held that the discovery sanction of dismissal must be just and must relate to
the claims at issue in the discovery order which has been violated, that dismissal should be
imposed only after careful consideration of all relevant factors, and that the order of dismissal
must be supported by an express, careful and preferably written explanation of the district
court's analysis. Young, 106 Nev. at 92-93, 787 P.2d at 779-80. We also set forth a
non-exhaustive list of factors which a court may properly consider in deciding whether
dismissal is an appropriate sanction. Those factors include: (1) the degree of willfulness of
the offending party; (2) the extent to which the non-offending party would be prejudiced by a
lesser sanction; (3) the severity of the sanction of dismissal relative to the severity of the
discovery abuse; (4) whether any evidence has been irreparably lost; (5) the policy favoring
adjudication on the merits; (6) whether sanctions unfairly operate to penalize a party for the
misconduct of his or her attorney; and (7) the need to deter both the parties and future
litigants from similar abuses. Young, 106 Nev. at 93, 787 P.2d at 780.
[Headnote 5]
In the instant case, dismissal of Stubli's action was a proper response to the destruction of
evidence and the requirements of Young have been satisfied. First, Stubli's claims all revolve
around the allegedly defective design and repair of the trailer's suspension system, the bulk of
which was discarded by Stubli just prior to the time that Stubli filed his initial complaint.
Thus, the dismissal order is clearly related to the discovery abuse at issue in this case.
Although no court order compelling discovery had been entered and thus violated by Stubli,
we note that the destruction of evidence occurred prior to filing an action and the
commencement of discovery. Such timing was due to actions taken by Stubli's counsel and
expert and cannot be relied upon by Stubli to preclude the imposition of discovery sanctions
pursuant to NRCP 37. As the Illinois Appellate Court reasoned when faced with an almost
identical set of circumstances:
[A]lthough it is correct that the plaintiffs did not violate court orders, the fact remains
that the furnace was destroyed by plaintiffs at Western State's suggestion. The plaintiffs
are not free to destroy crucial evidence simply because a court order was not issued
to preserve the evidence.
not free to destroy crucial evidence simply because a court order was not issued to
preserve the evidence. Further, the furnace was destroyed by the plaintiffs after their
expert had examined it and before the suit was filed, thus, the court could not have
issued a preservation order.
Graves v. Daley, 526 N.E.2d 679, 681 (Ill.App.Ct. 1988) (dismissing lawsuit as sanction for
the destruction of evidence).
Next, the district court's nine-page order of dismissal evidences a thorough analysis of the
relevant factors and provides ample support for the sanction imposed. The district court noted
that the loss of evidence in this case was wholly due to willful actions taken by Stubli's Ohio
counsel and Stubli's expert, prior to any involvement in this case by respondents. The court
further noted that a plethora of expert testimony supports respondents' contention that
examination of the lost evidence would be necessary to prove or disprove respondents' theory
that the crash and damage to the trailer were caused by driver error rather than a defective
design or repair, and that imposition of a lesser sanction such as excluding Limpert's
testimony while allowing appellant to proceed on the basis of circumstantial evidence would
be insufficient to cure the prejudice sustained by respondents.
We agree with the district court's analysis. Relevant evidence in this case has been
irreparably lost due to the willful actions of Stubli's agents. A lesser sanction, short of
deeming respondents' theory admitted by the offending party and granting summary judgment
in respondents' favor, will not compensate for that loss. Although dismissal precludes
adjudication on the merits and penalizes Stubli for the misconduct of his attorney and expert,
such consequences are unavoidable and are outweighed by the need to remedy the unfair
litigation practices employed in this case, and the benefit of deterring similar abuses in future
cases.
Accordingly, we conclude that the sanction imposed in this case was warranted and was no
more severe than the discovery abuse committed by Stubli's agents. We therefore affirm the
decision of the district court.
Steffen, J., and Recanzone, D. J., concur.
1

The dismissal of Stubli's complaint constitutes a sanction which is unnecessarily harsh.
__________

1
The Honorable John Mowbray, Chief Justice, having voluntarily recused himself, the Honorable Mario G.
Recanzone, Judge of the Third Judicial District Court, was designated by the Governor to participate in this
matter on the briefs and recording of oral arguments. Nev. Const. art. 6, 4.
which is unnecessarily harsh. An attorney and expert witness employed by Stubli's insurance
company and also representing Stubli made a decision before litigation commenced to
destroy portions of the trailer. They believed those portions were not essential to determine
the cause of the accident. This decision was not willfully made to impede any potential
defendants; the defense experts have not been prevented from forming an opinion as to the
cause of the accident, and a less severe sanction would better serve the interests of justice. For
these reasons, I dissent.
The dispute between the parties concerns how the accident happened. The highway patrol
believed Stubli fell asleep at the wheel and his truck drifted into the median. Stubli's experts
conclude that a weld repair was defective or a fatigue fracture developed near the weld. The
defense experts opine that the trailer was overloaded and this damaged the springhangers and
associated parts, thus causing the crash. Stubli's experts contend that all trailer parts necessary
for accident reconstruction were preserved. The defense experts believe sufficient evidence
exists to form an opinion as to the cause of the accident, but that the destroyed section might
be helpful to bolster their opinion and refute the speculation of one of Stubli's experts. The
respondents did not assert that the destroyed trailer was necessary to their defense until the
filing of the motion to dismiss in question, almost two years after their experts inspected the
preserved tractor parts.
Against this factual background, we must review the factors set forth in the Young case to
determine whether the extreme sanction of dismissing the complaint was warranted. See
Young v. Johnny Ribiero Building, 106 Nev. 88, 787 P.2d 777 (1990). The refrigeration unit
and axles of the trailer were destroyed because Stubli's attorney and expert had determined
that a defective weld repair caused the accident and that preserving more than the sliding axle
assembly was unnecessary because the evidence collected plus what we preserved is all the
data that [a reasonable engineer] needs to determine what happened. There were hundreds of
photographs taken of the discarded portions of the trailer that were made available to the
respondents. There is no indication in the record that the destruction of the trailer was done in
bad faith to frustrate any of the potential defendants and it was not in violation of any court
order because suit had not yet been filed. This is not a willful destruction of evidence.
Two other Young factors that weigh in Stubli's favor are the considerations of whether the
non-offending party would be prejudiced by a lesser sanction and whether a less severe
sanction would be feasible. The defense experts have not been prevented from forming and
advocating an opinion as to the cause of the accident, but may be prevented only from
buttressing their conclusion that the accident happened because of overloading.
from forming and advocating an opinion as to the cause of the accident, but may be prevented
only from buttressing their conclusion that the accident happened because of overloading.
Even the district court recognized this when it stated in its order that the jettisoned portion of
the trailer may have provided defendants with evidence supporting their theory of the case.
Therefore, it is doubtful whether the evidence in question would have been of any assistance
to either party had it not been destroyed.
The district court could have permitted the case to go to trial and then instructed the jury
that if it found that any destroyed evidence would be significant in reaching a conclusion as to
the cause of the accident, it should infer that the evidence destroyed would have disclosed
facts adverse to the party who destroyed it. Additionally, the court could have prevented
Stubli's expert from testifying about his observations of the refrigeration unit before it was
discarded. These remedial sanctions would have enabled the defense to present their theory of
the case and suffer only minimal prejudice.
Another factor to be considered is whether sanctions unfairly operate to penalize a party
for the misconduct of his or her attorney. The complaint's dismissal does just that; it penalizes
Stubli for the action taken by an expert and attorney representing both Stubli and his
insurance company seeking subrogation. It was Stubli's insurance company that continually
complained that the costs of storing the entire trailer were mounting. The impetus to destroy
the remainder of the trailer came not from Stubli, but from his insurer, who presumably was
paying and directing the attorney and expert.
Finally, public policy favors adjudication on the merits whenever possible. Hotel Last
Frontier v. Frontier Prop., 79 Nev. 150, 155, 380 P.2d 293, 295 (1963). The destroyed parts
of the trailer were not essential to the trial of this case and remedial sanctions were feasible.
Imposition of the extreme sanction of dismissal with prejudice was an abuse of discretion by
the district court. For these reasons, I respectfully dissent from the majority opinion.
____________
107 Nev. 317, 317 (1991) Republic Insurance v. Hires
REPUBLIC INSURANCE COMPANY, Appellant, v. JACK A. HIRES, Respondent.
No. 19426
May 2, 1991 810 P.2d 790
Appeal from judgment awarding compensatory and punitive damages. Second Judicial
District Court, Washoe County; Robert L. Schouweiler, Judge.
Insured brought action against homeowner's insurer for breach of contract,
misrepresentation, bad faith, negligence, and invasion of privacy. The district court entered
judgment for insured pursuant to jury verdict of $410,000 in compensatory damages and
$22.5 million in punitive damages. Insurer appealed. The supreme court, Young, J., held that:
(1) insurer was guilty of oppressive conduct, and thus punitive damages were properly
awarded to insured, and (2) award of $22.5 million in punitive damages was clearly
disproportionate to blameworthiness and harmfulness of insurer's conduct, and thus punitive
damages award would be reduced to $5 million.
Affirmed; punitive damage award reduced from $22.5 million to $5 million.
Beckley, Singleton, DeLanoy, Jemison & List, Las Vegas; Leboeuf, Lamb, Leiby &
MacRae and John Frye and R. Scott Puddy, San Francisco, California; Maurice Rosenberg,
Professor of Law, Columbia University, New York, New York, for Appellant.
Victor G. Drakulich, Reno; Hibbs, Roberts, Lemons, Grundy & Eisenberg, Reno, for
Respondent.
Lionel Sawyer & Collins and M. Kristina Pickering, Reno; Gibson, Dunn & Crutcher and
Larry L. Simms, Washington, D.C. for Amicus Curiae American Insurance Association and
Coalition for Available/Affordable Liability Insurance.
Hamilton & Lynch, Reno, for Amicus Curiae Nevada Trial Lawyers Association.
1. Damages.
Award of punitive damages is not unconstitutional.
2. Insurance.
Homeowner's insurer was guilty of oppressive conduct, and therefore punitive damages were properly awarded to insured, there
claim for burglary loss was one that reasonable persons would agree should be paid, insurer instead insisted on across the board
reduction of claim, and independent insurance adjuster established that such conduct was unqualified policy of
insurer, particularly with regard to lower and middle income policyholders who were less likely to dispute
insurer's position.
independent insurance adjuster established that such conduct was unqualified policy of insurer, particularly with regard to lower and
middle income policyholders who were less likely to dispute insurer's position. NRS 42.005.
3. Insurance.
Punitive damages award of $22.5 million against homeowner's insurer for oppressive conduct in failing to pay burglary claim was
unreasonable and disproportionate to insurer's behavior, and thus punitive damages judgment would be reduced to $5 million; insurer's
net worth was approximately $172 million.
OPINION
A jury awarded Jack A. Hires $22.5 million in punitive damages because of the manner in
which Republic Insurance Company treated Hires in connection with payment of an insurance
claim.
FACTS
Before leaving on a weekend trip to California, Hires secured his home in Sparks and
asked his neighbor, Doug France, to maintain the swimming pool. Soon after reaching his
destination, Hires received a telephone call from France who told him that his house had been
robbed. Hires immediately returned to Sparks. He found extensive damage to the residence
and furniture; in addition, several items had been stolen.
Hires notified Republic Insurance Company of the loss. The homeowner's coverage with
Republic was a basic homeowner's policy with a replacement cost endorsement for an
additional cost.
On Monday, Terry Hunt, an independent insurance adjuster hired by Republic, went to the
house to inspect damages. After reviewing the damage, Hunt told Hires that a contractor
would take care of it. Hunt recommended that Hires contact UTE Construction Company
regarding repairs.
The following night, Gary Schizler from UTE went to the Hires home and told Hires to
replace the damaged furniture. Relying on the instructions of Hunt and Schizler, Hires threw
away the damaged furniture and bought new replacement furniture, partially with cash and on
credit. Hires gave the receipts to Hunt, who indicated that he would take care of it.
Two weeks later, Hunt informed Hires that Republic would not reimburse Hires the full
$2,242.82 for the new furniture, but that Republic would pay only $400, which is what
Republic estimated it would cost to reupholster the furniture.
it would cost to reupholster the furniture. Republic finally paid Hires only sixty-five percent
of the $400 because Republic claimed Hires lacked documentation, even though there had
been no question raised as to Hires' ownership of the furniture.
The next problem Hires encountered was with regard to his bedroom furniture. Hires
estimated that it would cost $580 to replace the furniture. Republic estimated a replacement
cost of $300 and offered to pay only sixty-five percent of the $300. Republic's excuse for the
across-the-board thirty-five percent reduction in payments to Hires was that Hires did not
have sufficient documentation to establish price and ownership on some items. Even the
items for which there was sufficient documentation were paid for by Republic at sixty-five
percent of replacement value. According to Republic claims adjuster Trisha Funk, it was
customary for Republic to begin negotiations at a reduced figure, leaving the policyholder
with the obligation of arguing for a larger amount.
Moreover, Republic refused to pay any amount to Hires until four months after the
burglary. Hires testified this created financial difficulties. Hires also testified that he
experienced marital difficulties before the experience with Republic and that Republic's
treatment of him and the ensuing financial difficulties finally resulted in his divorce.
In November 1986, four months after the burglary, Hires contacted legal counsel who sent
a letter to Terry Hunt demanding payment of the claim. Republic continued its refusal to pay.
By Christmas, Hires had experienced major financial difficulties because of the payments due
on replacement furniture that he had purchased and the repairs which he had paid.
Finally, on December 30, 1986, Republic gave Hunt authority to settle a claim for damage
for loss on contents in the amount of $7,238 which was $5,800 under the demand by Hires.
Hires accepted payment while reserving his right to contest the amount paid.
Republic's conduct with regard to its investigation of the burglary was also an issue at trial.
Officer Schmidt of the Sparks Police Department investigated the burglary and concluded
that, because of the large amount of vandalism associated with the burglary, the perpetrator
might have been a member of the Hires family or someone with a great dislike for the family.
When Officer Schmidt's suspicions were satisfied, the police investigation was closed.
Republic apparently did not agree with Officer Schmidt's conclusion and conducted a full
neighborhood investigation into Hires' possible involvement in the burglary. Part of the
investigation concerned Mrs.
tion concerned Mrs. Hires' alleged extramarital activities and possible involvement in the
burglary. Hires testified that, prior to the investigation, he enjoyed a very close relationship
with people in the neighborhood. After the investigation, he perceived a change in his
neighbors' attitude toward him and his family.
Hires stated that his children mentioned remarks by their friends indicating that the Hires
family had been involved in the burglary. Republic finally concluded that the family had no
involvement in the burglary. Terry Hunt, who performed the investigation for Republic,
testified that ordinarily he would not have conducted such a thorough investigation, but that
Republic was usually more willing than other companies to investigate the background of its
own insureds. The investigation apparently ended in November 1986.
About eighteen months after the burglary and after the lawsuit was filed, Republic again
investigated the incident. An investigator employed by Republic's attorney contacted Doug
France and asked if France had collaborated with the Hires family in committing the burglary.
The investigator asked France if he had been involved in a relationship with Mrs. Hires.
France interpreted this question as referring to a sexual relationship. This investigation was
conducted throughout the neighborhood. In December 1987, pursuant to the investigator's
request, the Sparks Police Department reopened the investigation, but closed it again upon
verification of information previously received.
Hires brought suit against Republic based on breach of contract, misrepresentation, bad
faith, negligence and invasion of privacy. The jury awarded Hires $410,000 in compensatory
damages and $22.5 million in punitive damages.
On appeal, Republic raises a number of claims of procedural error. We conclude that these
claims were either not properly preserved for review or that, if objection was properly made,
there was no abuse of discretion by the trial judge. Moreover, we have reviewed the record
and conclude that evidence supported the award of compensatory damages. We will now
address the question of punitive damages.
[Headnote 1]
Republic raises a constitutional argument regarding punitive damages, but we reject this
argument because the availability of punitive damages is accepted as settled law by nearly all
state and federal courts. Pacific Mutual Life Ins. Company v. Haslip,
------
U.S.
------
, 59
U.S.L.W. 4157 (March 4, 1991). Our court has stated that punitive damages provide a benefit
to society by punishing undesirable conduct not punishable by the criminal law. Ace Truck v.
Kahn, 103 Nev. 503, 746 P.2d 132 (1987).
[Headnote 2]
NRS 42.005 authorizes an award of punitive damages where the defendant has been guilty
of oppression, fraud or malice. If we read the record in the light most favorable to Hires and
least favorable to Republic, we conclude evidence indicates Republic was guilty of
oppressive conduct. K Mart Corp. V. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987).
After hearing all the evidence in the case, the trial judge summarized the case as follows:
This claim was not one in the gray area, but rather was one that reasonable persons
would agree should [emphasis in original] be paid . . . . Republic insisted on an across
the board reduction of the claim. Furthermore, the testimony of Terry Hunt, by way of
his first deposition, established that this conduct was the unqualified policy of Republic,
particularly with regard to lower and middle income policyholders, who are less likely
to dispute Republic's position. This conscious wrongdoing on the part of Republic,
along with the malicious intent, is what the jury sought to punish. And the jury knew
that a substantial sum was necessary to deter further conduct by a wealthy, powerful
and impersonal corporation.
(Our emphasis.)
[Headnote 3]
From the above comments by the court and the record, it is clear that Republic was guilty
of oppressive behavior. Evidence showed that the net worth of Republic was approximately
$172 million. We conclude that $22.5 million is a larger sum than is necessary in this case to
serve as a deterrent. Although we are reluctant to substitute our judgment for that of the trier
of fact on punitive damages, we conclude that the amount awarded by the jury is clearly
disproportionate to the blameworthiness and harmfulness in the conduct of Republic under
the circumstances of this case. Ace Truck, 103 Nev. at 509, 746 P.2d at 136-37.
Based on the standards established in Ace Truck and after considering all of the factors
enumerated therein, we conclude that in this case any punitive damage award in excess of $5
million would be unreasonable and disproportionate to the behavior of Republic. An award of
more than $5 million would be more than is necessary to deter Republic and others from
engaging in this kind of oppressive behavior.
We affirm the judgment of the trial court in all respects except for the award of punitive
damages. The judgment for punitive damages is reduced from $22.5 million to $5 million.
Springer, J., with whom Rose, J., agrees, concurring in the judgment:
Although I am willing to join with the other members of the court in ordering a reduced $5
million punitive damage judgment in favor of Hires, I am unwilling to sign the majority
opinion because I do not think that it accurately portrays the magnitude of the oppressive
conduct engaged in by Republic Insurance Company.
1
The majority opinion as it now reads
does not in my view justify a punitive award of even $5 million; it is for this reason that I
file a separate, concurring opinion.
__________

1
Rather than state the facts in detail in the body of this concurring opinion I will summarize the facts in this
note because I think the reader may get a better grasp of Republic's blameworthiness upon reading of the way in
which the company treated the Hires family.
While the family was out of town they received a phone call from a neighbor, Doug France, advising that the
family home had been robbed. Hires returned immediately to his Sparks home. Upon arriving at the house he
found extensive damage to the residence and furniture. Several items had been stolen, the waterbed had been
punctured, and other pieces of furniture and portions of the house had been vandalized.
Hires notified his homeowner's insurance carrier, Republic Insurance Company, about the loss. The
homeowner's coverage which Hires had with Republic was a basic homeowner's policy with a replacement cost
endorsement made available by Republic for an additional cost.
On Monday, Terry Hunt, the independent insurance adjuster hired by Republic, went to the house and
observed the damages. After Hunt made a review of the damage to the house and its contents, Hires asked Hunt
what to do about the furniture. Hunt told him to leave it for the contractor to take care of. Hunt recommended
that Hires contact UTE Construction Company about the repairs.
The next night, Gary Schizler from UTE went to the Hires' home and told Hires to replace the damaged
furniture. Based on the instructions of Hunt and Schizler, Hires threw away the damaged furniture and bought
new replacement furniture partially with cash and the rest on credit. Hires gave the receipts to Hunt, and Hunt
indicated that he would take care of it. After approximately two weeks, however, Hunt informed Hires that
Republic would not reimburse him the full $2,242.82 for the new furniture, but that Republic would pay only
$400.00, which is what Republic estimated it would cost to reupholster the furniture. Republic finally paid Hires
only sixty-five percent of the $400.00 because Republic claimed Hires lacked documentation, even though there
had been no question concerning Hires' ownership of the furniture.
The next problem Hires encountered was with regard to his bedroom furniture. Hires estimated that it would
cost $580.00 to replace the furniture while Republic estimated a replacement cost of $300.00, but Republic
would pay only sixty-five percent of the $300.00. Republic's excuse for the across-the-board thirty-five percent
reduction in payments to Hires was that Hires allegedly did not have sufficient documentation to establish price
and ownership on some items. Even the items for which there was sufficient documentation were paid for by
Republic at sixty-five percent of their replacement value. According to Republic claims adjuster Trisha Funk, it
was customary for Republic to begin negotiations with an insured at a reduced figure, leaving the policyholder
with the obligation of arguing for a larger amount. At trial, Hires contended that Republic had refused to pay, in
all, about $5,800.00 which was due him under the policy.
Republic refused to pay any amount to Hires until almost four months
justify a punitive award of even $5 million; it is for this reason that I file a separate,
concurring opinion.
__________
after the burglary. Hires testified that this caused him financial difficulties. Hires also testified that he had
marital difficulties before the experiences with Republic and that Republic's treatment of him and the ensuing
financial difficulties finally resulted in his divorce.
Hires contacted legal counsel in November 1986, four months after the burglary, and counsel sent a letter to
Terry Hunt demanding payment of the claim. While Hunt realized that Republic should pay the claim and
requested Republic to do so, Republic continued in its refusal. By Christmas, Hires had experienced major
financial difficulties because of the payments due on the replacement furniture he had bought and the repairs he
had paid for.
Finally, on December 30, 1986, Republic gave Hunt authority to settle for $7,238.00, which was well under
the demand made by Hires. Republic indicated to Hires, through Terry Hunt, that the $7,238.00 was a
take-it-or-leave-it offer. Hires accepted payment while preserving his right to contest the amount paid.
Republic's conduct with regard to its investigation of the burglary also was an issue at trial. Officer Schmidt
of the Sparks Police Department investigated the burglary and concluded that, because of the large amount of
vandalism associated with the burglary, the perpetrator might have been a member of the Hires family or
someone with a great dislike for the family. Officer Schmidt's suspicions were satisfied, however, when he found
out that Hires had been out of town when the burglary took place.
Republic apparently did not agree with Officer Schmidt's conclusion, though, and conducted a full
neighborhood investigation into Hires' possible involvement in the burglary. Part of the investigation involved
Mrs. Hires' alleged extramarital activities and her potential involvement in the burglary. Hires testified that prior
to the investigation he had a very close relationship with the people in the neighborhood, but after the
investigation he perceived a change in his neighbors' attitude toward him and his family. He stated that his
children mentioned remarks by their friends that the family had been involved in the burglary. Republic finally
concluded that the Hires family had no involvement in the burglary. Terry Hunt, who conducted the
investigation for Republic, testified that he would not have done such a thorough investigation except that
Republic was usually more willing to investigate the background of its own insureds than other companies. This
investigation apparently ended in November 1986.
Republic again investigated the burglary about eighteen months after the burglary and after the lawsuit in this
case had been filed. An investigator contacted Doug France and asked if France had collaborated with the Hires
family in committing the burglary. The investigator asked France if he had a relationship with Mrs. Hires, which
France interpreted as meaning a sexual relationship. This investigation was conducted throughout the
neighborhood. In December 1987, the investigator requested that the Sparks Police Department reopen the
criminal investigation. The police department did reopen the case but closed it again upon verification of the
information that it had previously received.
Hires brought suit against Republic based on breach of contract, misrepresentation, bad faith, negligence,
and invasion of privacy. The jury awarded Hires $410,000.00 in compensatory damages and $22.5 million in
punitive damages. This award equals approximately thirteen percent of Republic's $172 million net worth.
I do not think that the majority opinion accurately portrays, as it should, how awful
Republic really was in its dealings with Hires and its other insurance policyholders. As the
trial court concluded, Republic was guilty of conscious wrongdoing and malicious intent;
but what aggravates the wrongdoing in this case is the massive oppression engaged in by
Republic and Republic's focus on defeating the legitimate claims of its low income, relatively
powerless clientele. What the company was doing was to underpay its claimants on an
across the board basis by starting negotiations with claimants at sixty-five percent of the
true value of the claim as assessed by the company itself, and then negotiating downward
from there.
2
Shortchanging its policyholders was, according to the trial judge, the
unqualified policy of Republic, particularly with regard to lower and middle income
policyholders, who are less likely to dispute Republic's position. There is evidence to
support the conclusion that this oppressive policy was employed in over one million claims
per year.
3
The amount shaved off (to use a term coined by one of the witnesses) of Hires'
legitimate claim was around $5,800.00. If, for example, only a trifling $100.00 were shaved
from each of a million claims each year, we would have a staggering fraud on the company's
policy holders of $100 million per year. This kind of fraud, this kind of oppression is indeed
deserving of punishment. The trial court properly observed that policyholders should not have
to be confronted with the unreasonable and outrageous behavior of an insurance company.
The trial court specifically concluded that the jury was justified under the circumstances in
awarding $22.5 million as being necessary to punish the tortfeasor and to deter others from
similar misconduct. Perhaps, as my colleagues conclude, $5 million (which is less than three
percent of Republic's net worth) is enough to punish Republic and to deter other insurance
companies from similar fraudulent and oppressive misconduct; but I am not willing to
concur in such a judgment without at least putting on the record a more detailed account
of the abominable misconduct of which this insurance company was guilty in this case.
__________

2
This course of conduct was revealed by Republic's own employees. One of Republic's insurance agents
testified that Republic deliberately treated its customers differently depending on their socio-economic status. In
addition, one of Republic's claims adjusters explained that it was customary for Republic to begin negotiations
with an insured with a reduced figure, leaving the policyholder with the obligation of arguing for a larger
amount.

3
Prior to trial, Hires requested that Republic produce all of its complaints that were similar in nature to the
allegations in this litigation, or reasonably related to the allegations in this litigation. In response to this
discovery request, Republic presented Hires with a large box of complaints. Over 100 of these specific
complaints were admitted into evidence at trial. These 100 claims provide a rough sample of cases similar to the
case before us. We can readily see from these complaints what Republic was doing, but we cannot tell how much
money was bilked from its insurance claimants. Hires' counsel suggested a minimum of $20 million, but this sum
is low when we consider that over one million claims a year are presented to the company.
punish Republic and to deter other insurance companies from similar fraudulent and
oppressive misconduct; but I am not willing to concur in such a judgment without at least
putting on the record a more detailed account of the abominable misconduct of which this
insurance company was guilty in this case. A business practice more reprehensible than that
practiced here would be hard to imagine. It is difficult to envision in the business world
anything more repugnant that the picture of a group of corporate executives charged with the
management of a giant insurance company sitting down to plan how the company can prosper
by refusing to pay legitimate claims. Imagine: First, we will take every claim and reduce it to
sixty-five percent of what we think the claim is actually worth. Then, by delay, harassment,
and intimidation we will force claimants to accept an amount lower than sixty-five percent of
the claim's true value, if possible. This scheme will work particularly well in cases where
claimants are short of money and must accept inadequate compensation in order to survive.
The ugly spectacle of Republic's behavior in systematically depriving the powerless of
their legitimate indemnification claims is, to say the least, troubling. Such conduct
exemplifies in the extreme the oppressive behavior contemplated by NRS 42.005 as
warranting the award of punitive damages.
4
The hallmark of this case is oppression, the use
of massive economic and social power to trample on the rights of the "little guy."
__________

4
I believe that the majority should have placed more emphasis on the oppressiveness of Republic's behavior.
Oppression was defined for the jury in terms of Republic's conscious disregard for the rights of others. This
definition, however, and the definition of oppression given in our past cases falls short of capturing the true
essence of oppression. This court has defined oppression as a conscious disregard for the rights of others which
constitutes an act of subjecting plaintiffs to cruel and unjust hardship. United Fire Insurance Co. v. McClelland,
105 Nev. 504, 512-13, 780 P.2d 193, 198 (1989), reh'g denied (Nov. 11, 1989); see also Ainsworth v.
Combined Ins. Co., 104 Nev. 587, 590, 763 P.2d 673, 675 (1988). This description covers Republic's behavior
in this case, but it does not in my opinion adequately cover the most important, most essential element of true
oppression, namely, the power differential between the oppressor and the oppressed. The etymological root of
the word oppressed is the pressing or crushing denotation, the sense of the stronger party pressing down on and
crushing the weaker. Webster defines oppression as the [u]njust or cruel exercise of authority or power.
Webster's New Int'l Dictionary 1710 (7th ed. 1961) (unabridged). The real gist of oppression, then, (appreciated,
it would seem, by the jury in this case) is the abuse of power by the stronger over the weaker. Incorporating this
idea of crushing by superior power into the language of our past cases, I would define oppression as the unjust
abuse of power by one who is stronger and who, in the exercise of that greater power, consciously disregards the
rights of one who is weaker, thereby causing injury by subjecting the weaker party to cruel and unjust hardship.
The failure to bring into judicial cognizance the true nature of oppression as a basis for punitive damages was
recognized in Farr v. Transamerica
case is oppression, the use of massive economic and social power to trample on the rights of
the little guy. The concept is well captured in the first paragraph of Hires' brief:
This case is about David and Goliath. One party is a financially weak UPS
deliveryman who paid insurance premiums in order to obtain protection for his family,
and whose life was shattered when his home was burglarized and vandalized. The other
party is a large national insurance corporation which has millions of dollars in assets,
which is a subsidiary of an even larger insurance conglomerate, and which flexed its
enormous muscles in order to reduce its policyholder's claim and increase its profit.
Further aggravating the oppressive actions of this insurance company is its inexplicable
failure to acknowledge, even during the appellate process, that it has done anything wrong.
This remorseless attitude, combined with the contemptible conduct detailed above,
sufficiently supports the lower court's firm and unequivocal declaration that Republic was
deserving of very severe punishment.
I do have some concern in this case about the windfall of $22.5 million that would be
enjoyed by Hires if this punitive award were affirmed; and this influences my decision to join
with the majority's reduction of the punitive award. Also, I am concerned about just who is
actually being punished by the punitive award. As noted in the margin, those actually
responsible for the oppressive behavior exhibited by Republic as a corporation may go
entirely unpunished.
5
I have decided to join my brothers in the judgment in this case, but
I admit to a certain "reluctance to substitute [my] judgment for that of the trier of fact on
the issue of damages."
__________
Occidental Life Ins. Co., 699 P.2d 376, 384 (Ariz.Ct.App. 1985), in which the courts' common failure to define
adequately oppressive conduct was noted. The Arizona court stated: The cases fail to define what is meant by
oppressive conduct, but a good example would encompass the situation where the insured's loss has made him
desperate to settle, and the insurer is specifically aware of this vulnerability and plays upon it while recklessly
failing to investigate, process or pay a claim. 699 P.2d at 384. In the case now before us, we are not dealing
with a company's mere failure to investigate, process or pay a claim but, rather, with an intentional, conscious
company policy to avoid paying lawful claims, thus inflicting on weak and vulnerable policy holders a cruel
and unjust hardship. United Fire, 105 Nev. at 512-13, 780 P.2d at 198; Ainsworth, 104 Nev. at 590, 763 P.2d
at 675.

5
Republic is a large subsidiary company with assets of about $172 million. If this were a personal, not a
corporate, defendant, one might not be concerned with a punishment that took $5 million, or even $22.5 million,
from a rich and powerful person who preyed upon the weak and was guilty of an unjust and cruel abuse of
power. In a case like this, however, it is, to some degree, the innocent, at least relatively innocent, stockholders
who suffer loss for the evil doings of corporate management.
Some commentators argue that this kind of punitive damage award pun-
I have decided to join my brothers in the judgment in this case, but I admit to a certain
reluctance to substitute [my] judgment for that of the trier of fact on the issue of damages.
Automatic Merchandisers, Inc. v. Ward, 98 Nev. 282, 284, 646 P.2d 553, 555 (1982).
Nevertheless, even in the face of the massive corporate oppression generated by the
management of Republic Insurance Company, I am willing to join with my colleagues in
reducing the $22.5 million punitive award to $5 million.
__________
ishes the innocent shareholder and does not have a deterrent effect on the corporate managers who actually
committed the wrongful acts. They argue that if, say, as here, three percent of the net worth of a company were
to be awarded to the plaintiff it would take three cents from every dollar's worth of the stock belonging to the
shareholders, while the wages and salaries of the employees and officers of the corporation would remain
untouched. See Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 841 (2d Cir. 1967).
Opponents of the innocent shareholder theory state that loss or decline in value of an investment is a risk
that investors must assume. They argue that the shareholders should not be allowed to enjoy ill-gotten gains. In
addition, they state that punitive damages cutting into the shareholders' pocketbooks will encourage the
shareholders to exercise closer control over corporate operations. 1 J. Ghiardi & J. Kircher, Punitive Damages
Law and Practice, 6.10 (1988). The assertion that shareholders could be motivated to exercise close control
over the corporation seems to ignore the reality, whether good or bad, that the modern multi-million dollar
corporation is ruled by its directors and officers and that the individual shareholders who own just a few shares
each and are not acquainted with any of the other shareholders have and want little or nothing to say concerning
corporate management. It appears in this record that the principal stockholder of Republic is another
corporation, and the innocent stockholder argument may not obtain here; still, it is worth noting that attention
should be given to the desirability of punishing those who are really at fault.
Under the tort theory of recovery here employed, the contracting party, the company, is the only party liable
in tort for breach of the implied covenant of good faith and fair dealing. There is, however, no reason why
stockholders should not, in these kinds of bad faith cases, be able to pursue a recoupment of their losses. The
record before us fails to identify which agents of the corporation brought about the oppressive treatment of Mr.
Hires in this case. No doubt a class stockholders' action could get to the bottom of this mystery and perhaps
recover the stockholders' losses from the guilty parties. A class action by defrauded claimants might also be in
order in this case.
____________
107 Nev. 328, 328 (1991) Huebner v. State
KURT DOUGLAS HUEBNER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21728
May 6, 1991 810 P.2d 1209
Proper person petition for rehearing. Eighth Judicial District Court, Clark County; John F.
Mendoza and Jeffrey D. Sobel, District Judges.
Defendant appealed from denial of petition for post-conviction relief by the district court.
Appeal was dismissed as untimely. On petition for rehearing, and following hearing before a
different district judge, the supreme court held that: (1) it is duty of clerk of district court to
keep accurate record of date of receipt of every document submitted, and (2) where, under
prior practice of clerk, it could not be determined whether defendant's notice of appeal was
timely received into custody of clerk of district court, ambiguity would be resolved in
defendant's favor.
Rehearing granted; appeal reinstated; instruction to district court clerks issued.
Kurt Douglas Huebner, In Proper Person, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, Clark
1. Clerks of Courts.
It is duty of clerk of district court to keep accurate record of date of receipt of every document submitted to the clerk, regardless of
whether the document is in appropriate form, regardless of whether it is actually filed, and regardless of whether it is from attorney or
individual attempting to proceed in proper person.
2. Criminal Law.
Where it could not be determined whether defendant's notice of appeal from denial of petition for post-conviction relief was
received into custody of clerk of district court in a timely fashion, because of practice in clerk's office not to file notice of appeal on
incoming day and to allow delay of up to several days before notice was actually filed, ambiguity would be resolved in defendant's
favor and appeal would be treated as timely. NRS 177.385.
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court, entered by District Judge
John F. Mendoza, denying appellant's petition for post-conviction relief. On December 27,
1990, this court dismissed this appeal on the sole ground that the notice of appeal was
not timely filed.
this court dismissed this appeal on the sole ground that the notice of appeal was not timely
filed. Specifically, we noted that the district court entered its order denying appellant's
petition on August 17, 1990, that notice of entry of the district court's order was served by
mail on appellant on August 29, 1990, and that appellant did not file his notice of appeal until
October 4, 1990, three days after the expiration of the thirty-day appeal period prescribed by
NRS 177.385. Appellant has petitioned for rehearing.
On rehearing, appellant correctly notes that the record on appeal indicates that appellant
mailed his notice of appeal to the clerk of the district court on September 25, 1990. Appellant
suggests that, assuming normal delivery of the mail, the clerk of the district court must have
received the notice of appeal before October 4, 1990. If appellant's notice of appeal was in
fact received by the clerk of the district court on or before October 1, 1990, the notice of
appeal was timely. Thus, appellant argues that this court incorrectly concluded that it lacked
jurisdiction to entertain this appeal.
Because this factual issue could not be resolved on the record before this court, we issued
an order on January 29, 1991, remanding this matter to the district court with instructions to
determine on what date appellant's notice of appeal was received into the custody of the
district court clerk. We directed the district court to conduct a hearing on this issue, and to
submit its findings of fact to the clerk of this court within twenty days.
On March 1, 1991, because the district court had not complied with our order, we issued a
second order directing the district court to comply with our order of January 29, 1991, within
twenty days. On April 10, 1991, because the district court had still neglected to respond to
this court's order of January 29, 1991, the clerk of this court contacted the clerk of the district
court to inquire as to the status of this case. On April 11, 1991, following a short hearing,
District Judge Jeffrey D. Sobel instructed the clerk of the district court to send by
telefacsimile transmission to the clerk of this court a copy of the minutes of the hearing,
which include Judge Sobel's findings of fact. On April 22, 1991, this court received a
certified copy of the minutes of the hearing. On April 29, 1991, the clerk of this court
received from the clerk of the district court formal, written findings of fact. These findings
were issued by Senior District Judge William P. Beko.
In his oral findings of fact, Judge Sobel did not resolve the issue of when the clerk of the
district court obtained custody of appellant's notice of appeal. Instead, Judge Sobel made the
following findings: Court finds that it is typical practice in the Clerk's office not to file
notice of appeal on the incoming day.
Court finds that it is typical practice in the Clerk's office not to file notice of appeal on
the incoming day. Court specifically finds that there can be a delay of several days
from the time notice of appeal comes from prisoner to the Clark County Clerk's Office
before it is actually filed with the clerk. Clerk responsible for the opening of mail for
transmittal to appellate court has no personal knowledge of this case.
(Emphasis added.) The formal, written findings entered by Senior Judge Beko essentially
mirror the oral findings of Judge Sobel. Specifically, Senior Judge Beko found that although
the deputy clerk responsible for opening the mail attempts to get a notice of appeal
immediately to the appellate clerk, occasionally a notice of appeal may lay around for several
days before it is filed. Senior Judge Beko further found that an incoming notice of appeal
may remain in the office of the District Court Clerk for an undetermined period of time
before it is actually filed.
We are dismayed at the circumstances in the clerk's office that led to the findings of the
district court. The legal rights of the parties to litigation, whether acting in proper person or
through counsel, often turn on the date of receipt by the clerk of the district court of
documents and pleadings. Indeed, the jurisdiction of this court to entertain an appeal is
directly dependent on the date the clerk of the district court obtains custody of a notice of
appeal. See, e.g., Jordon v. Director, Dep't of Prisons, 101 Nev. 146, 696 P.2d 998 (1985) (an
untimely notice of appeal fails to vest jurisdiction in this court).
[Headnote 1]
Thus, it is extremely important that the clerk of the district court keep an accurate record
of the date of receipt of every document submitted to the clerk, regardless of whether the
document is in the appropriate form.
1
Indeed, it is a gross dereliction of duty for the clerk of
the district court to neglect this ministerial duty. Cf. Bowman v. District Court, 102 Nev. 474,
728 P.2d 433 (1986) (duty of district court clerk to accept and file documents is ministerial,
involving no judicial discretion); Barnes v. District Court, 103 Nev. 679, 748 P.2d 483 (1987)
(statute that authorized the district court to refuse to file the pleadings of indigent persons
without a certificate of merit from an attorney was unconstitutional).
__________

1
We note that there is no question in this case that appellant's notice of appeal was in the proper form. The
clerk of the district court apparently neglected to file the document on the date of receipt because, for whatever
reason, it is not the practice of the clerk of the district court to file proper person documents on the date they are
received.
Because this apparent policy regarding the filing of proper person documents in the Eighth
Judicial District Court has continued to create problems in the administration of this court's
docket, this court, on May 18, 1989, issued directions, in the form of a letter, to the Chief
Judge and the Clerk of the Eighth Judicial District Court. We set forth the text of that letter
verbatim:
Increasingly we have been receiving complaints from prisoners concerning the filing
procedures in the Eighth Judicial District Court. Specifically, the prisoners allege that
matters sent to the district court for filing are not filed or stamped received on the date
they are received by the clerk of the district court. Instead, proper person documents are
assigned to the various chambers at random, and a proper person document is filed only
after the assigned district judge has authorized the filing. Often, a document mailed to
the district court for filing will not be filed for several days and even weeks after it has
been received by the clerk of the district court. No notation of the date of receipt is
stamped on the document.
Unfortunately, our review of many documents and pleadings that have been filed in
this court over the past year raising this problem convinces us that the prisoners'
allegations are true. Most significantly, many prisoners have apparently lost their right
of appeal because their notices of appeal, which were timely received by the district
court clerk, were not filed within the jurisdictional period for the filing of such a notice.
We cannot allow this practice to continue. Because important procedural and
substantive rights are directly dependent on the date a document is received into
custody by the clerk of the district court, the failure to clearly indicate on the face of
every document submitted for filing the date on which the document was received into
the custody of the district court clerk may result in a denial of important constitutional
rights. See, e.g., Barnes v. District Court, 103 Nev. 679, 748 P.2d 483 (1987).
We therefore direct, as an exercise of our authority to administer the court systems
in Nevada, that the actual date of receipt be clearly stamped on each and every
document submitted for filing to the clerk of the Eighth Judicial District Court, Clark
County, whether by an attorney or by an individual attempting to proceed in proper
person, and whether or not the document is actually filed. We trust that this practice
will be implemented immediately.
(Emphasis added.) We again direct the Clerk of the Eighth Judicial District Court, and the
clerks of all of the judicial district courts, to stamp clearly the actual date of receipt on each
and every document submitted for filing, whether submitted by an attorney or by an
individual attempting to proceed in proper person, and whether or not the document is
actually filed. The continued failure or refusal to adhere strictly to this direction will result in
the imposition of appropriate sanctions.
[Headnote 2]
Finally, because it cannot be determined whether appellant's notice of appeal was received
into the custody of the clerk of the district court in a timely fashion, we conclude that it would
be fair to resolve the ambiguity in the record in appellant's favor. Accordingly, we grant
appellant's petition for rehearing, and we reinstate this appeal. This appeal shall stand
submitted for decision on the record, without briefing or oral argument.
____________
107 Nev. 332, 332 (1991) Michaels v. Sudeck
MARLENE MICHAELS, Appellant, v. KENNETH SUDECK, Individually and as
Administrator of the Estate of ROSE SUDECK; DOVE INVESTMENTS, a Nevada
Limited Partnership; DOVE ENTERPRISES, a Nevada Corporation; and JEROME
PASTOR as General Partner of Dove Investments, Respondents.
No. 21014
May 9, 1991 810 P.2d 1212
Appeal from summary judgment in favor of respondents in action for dissolution or
rescission of a limited partnership agreement. Eighth Judicial District Court, Clark County; J.
Limited partner brought action to rescind or dissolve limited partnership. The district court
granted summary judgment against limited partner. Appeal was taken. The supreme court
held that: (1) no evidence supported the limited partner's claims of coercion and lack of
capacity to execute the limited partnership agreements, and (2) genuine issues of material fact
existed, precluding summary judgment, on whether a disbursal to another limited partner
violated the limited partnership agreement and on the source of the funds used to make that
disbursal.
Affirmed in part, reversed in part, and remanded.
Gentile, Porter & Kelesis and Mark S. Dzarnoski, Las Vegas, for Appellant.
Lionel Sawyer & Collins, Las Vegas, for Respondents.
1. Judgement.
Properly supported factual allegations and all reasonable inferences of party opposing summary judgment must be accepted as
true; however, conclusory statements along with general allegations do not create issue of material fact.
2. Judgment.
Party opposing summary judgment must be able to point to specific facts showing that there is genuine issue for trial.
3. Partnership.
No evidence showed that limited partner had been coerced or that she lacked capacity to execute limited partnership agreement.
4. Partnership.
No evidence showed that limited partner knew of existence of second limited partnership agreement at time she executed limited
partnership agreement that would have supported her claim that existence of second agreement provided evidence of misrepresentation
of partnership's capital accounts.
5. Judgment.
Genuine issues of material fact existed, precluding summary judgment, on whether disbursal made by general partner to one
limited partner violated limited partnership agreement and about source of funds from which disbursal had been made.
OPINION
Per Curiam:
This is an appeal from a summary judgment entered against appellant, who filed an action
on December 18, 1988, in order to rescind or dissolve Dove Investments (hereinafter, Dove),
a Nevada limited partnership. Kenneth Sudeck, Rose Sudeck, Dove Enterprises and Marlene
Michaels are Dove's limited partners. Kenneth and Rose Sudeck were also husband and wife.
Dove Enterprises and Jerome Pastor, general partner of Dove Investments, are named only as
nominal parties in the original complaint whose interests may be affected by the eventual
outcome. Jerome Pastor was also the lawyer and accountant for Ms. Michaels and the
Sudecks.
The verified complaint alleges misconduct by limited partner Kenneth Sudeck. Marlene
Michaels claims that Kenneth Sudeck coerced Ms. Michaels into executing the Dove limited
partnership agreement on January 1, 1987. This allegedly was accomplished by Mr. Sudeck
through threats of blackmail that he would expose the sexual relationship between Rose
Sudeck and Marlene Michaels to the Sudeck children. Kenneth and Rose Sudeck were
husband and wife, although Rose Sudeck lived with Marlene Michaels during this period.
Ms. Michaels also alleges incapacity to execute the Dove limited partnership agreement
through Mr.
husband and wife, although Rose Sudeck lived with Marlene Michaels during this period.
Ms. Michaels also alleges incapacity to execute the Dove limited partnership agreement
through Mr. Sudeck's steady supply of cocaine on demand to Ms. Michaels via Rose Sudeck.
Rose Sudeck died on November 5, 1987. Ms. Michaels claims furthermore that Mr. Sudeck
wrongfully destroyed a Rose Sudeck will which made Ms. Michaels a $2,000,000
beneficiary. The district court granted summary judgment without opinion in favor of
respondent Sudeck.
[Headnote 1]
Properly supported factual allegations and all reasonable inferences of the party opposing
summary judgment must be accepted as true. Wiltsie v. Baby Grand Corp., 105 Nev. 291,
292, 774 P.2d 432, 433 (1989). However, conclusory statements along with general
allegations do not create an issue of material fact. Bird v. Casa Royale West, 97 Nev. 67, 71,
624 P.2d 17, 19 (1981); Bond v. Stardust, Inc., 82 Nev. 47, 50, 410 P.2d 472, 473 (1966).
[Headnote 2]
The opposing party must be able to point out to the court something indicating the
existence of a triable issue of fact. Hickman v. Meadow Wood Reno, 96 Nev. 782, 784, 617
P.2d 871, 872 (1980) (citing Thomas v. Bokelman, 86 Nev. 10, 14, 462 P.2d 1020, 1022-23
(1970)). The party opposing such a motion must set forth specific facts showing there is a
genuine issue for trial. Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 415, 633 P.2d
1220, 1221 (1981) (emphasis added); NRCP 56(c). The opposing party is not entitled to have
summary judgment denied on the mere hope that at trial he [she] will be able to discredit the
movant's evidence . . . . Hickman, 96 Nev. at 784, 617 P.2d at 872 [citation omitted].
[Headnote 3]
At oral argument, Ms. Michaels acknowledged that the district court did not err in granting
summary judgment on Ms. Michaels' claims of coercion and incapacity relating to the
execution of the limited partnership agreement or the improper destruction of a valid prior
will. Ms. Michaels conceded that no evidence was presented to the district court on these
claims and that summary judgment was therefore inevitable and proper. Our review of the
record leads us to the same conclusion.
While conceding that there was no credible evidence to establish coercion, incapacity or
destruction of a valid prior will, Michaels contends that two factual issues were present that
should have prevented the granting of complete summary judgment to Sudeck.
ment to Sudeck. Both issues are brought into question by the alleged improper distributions
made by the general partner, Pastor. These issues are whether there was a misrepresentation
of the capital accounts by Pastor and how distributions should be made. Michaels made a
motion to amend her complaint to include some of these factual allegations and requesting an
accounting from the general partner. The district court referred this motion to another district
court where a second suit between Michaels and Pastor was pending. We have no further
information on the outcome of that motion and accordingly do not address the request for an
accounting.
A second limited partnership agreement was produced during discovery which bore the
same date as the one Michaels mentioned in her verified complaint, but this second
partnership agreement listed Dove Enterprises, Inc. as the sole limited partner. It was signed
by Pastor as general partner and as President of Dove Enterprises, Inc. A few provisions of
the second agreement were different from the first. For example, the second lists Dove
Enterprises, Inc., the only partner, as having made a $2,500,000 capital contribution and with
a 100 percent partnership interest. Pastor explained that the second limited partnership
agreement was discarded because it was determined that tax consequences required the
individuals to be the limited partners and not simply shareholders in Dove Enterprises, Inc.
[Headnote 4]
Michaels now alleges that the presence of this second agreement alone presents a question
of fact as to the misrepresentation of capital accounts. However, Michaels herself presented
no sworn or verified statement to the court indicating that she was fraudulently induced to
execute the limited partnership agreement she sued upon rather than the newly discovered
agreement. Again, a party opposing a motion for summary judgment must state specific facts
establishing a genuine issue of fact. Van Cleave, 97 Nev. at 415, 633 P.2d at 1221. In this
case, Michaels sued on the limited partnership agreement that she had signed and has made
no valid factual allegation that she was induced by fraud to sign it. Therefore, there was no
credible evidence to establish that Michaels believed that the second limited partnership
agreement was effective or that it should have been considered by the district court.
[Headnote 5]
This, however, does not end the issue concerning how distribution should be made
because the disbursals brought to our attention apparently were made in contravention of the
limited partnership agreement.
partnership agreement. On one occasion, Pastor as general partner disbursed $140,000 to
Kenneth Sudeck so that he could purchase a Ferarri. Pastor explains that this was proper
because Sudeck took the money as a distribution, even though a distribution was not
necessarily made to Michaels. Pastor states that such distributions were taken when any
limited partner desired. They just took money as it became available. On its face, this
distribution procedure does not comport with the language of the limited partnership
agreement.
The agreement states that cash from sales or refinancing shall be distributed . . . to the
limited partners in an amount equal to their invested capital until their invested capital has
been repaid in full. The signature page of the agreement has a capital contribution column
beside the signatures of the limited partners, but only Dove Enterprises, Inc. has any stated
capital contribution, this being $1,000. Beside the names of Michaels and Rose and Kenneth
Sudeck appears the wording net equity in property, partnership interest and notes rec. No
capital contribution amount is stated for the individual limited partners although the
agreement directs that money received from the sale of refinancing of partnership property is
to be first used to reimburse the limited partners for their capital contributions.
Since the limited partnership agreement does not state the capital contributions of the
limited partners as it should have, it would seem logical to look to the capital contribution
account records kept by the general partner. Indeed, the agreement directs the general partner
to keep an accurate record of the limited partner's capital contributions. If such records have
not been kept, then reference to other evidence could be made to establish the individual
limited partners' capital contribution.
1
Michaels contends that there is no evidence in the
record to establish if the money distributed was from the sale or refinancing of partnership
property, or from other income sources. Her assertion is correct.
Pastor states that the capital contribution amounts are immaterial because the parties
agreed prior to executing the limited partnership agreement that all distributions should be
made by the percentages stated after their name in the agreement, and reimbursement for
capital contributions should be disregarded. This alleged oral understanding directly
contradicts the written agreement, which states that distribution of the proceeds from the sale
or refinancing of partnership property would be made in accordance with invested capital,
and further, such testimony may well be precluded by the parol evidence rule.
__________

1
In considering the capital contributions made by the limited partners, Michaels' allegation of
misrepresentation of the capital accounts may be relevant.
accordance with invested capital, and further, such testimony may well be precluded by the
parol evidence rule. The limited partnership agreement states that it is the entire agreement
and that any prior written or oral agreement is replaced in total by this agreement.
The district court did not address the issue specifically of whether the distributions were to
be made pursuant to the limited partnership agreement or by some other understanding, nor
was a determination made as to the source of the money distributed. The terms of the limited
partnership agreement and the distributions that have been brought to our attention create
issues of fact that should have precluded the complete granting of summary judgment.
Michaels should be permitted to amend her complaint specifically to request such relief and
proceed to trial. Such general allegations were made in the proposed amended complaint that
was referred to another district court.
Accordingly, we affirm the district court's summary judgment determining that there was
no credible evidence to establish coercion or incapacity in executing the limited partnership
agreement or that a valid will was improperly destroyed. We remand for further proceedings
to address the remaining factual issues set forth in this opinion.
2

____________
107 Nev. 337, 337 (1991) Manning v. State
MARK A. MANNING, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21436
May 9, 1991 810 P.2d 1216
Appeal from an order of the district court denying appellant's second petition for
post-conviction relief. Eighth Judicial District Court, Clark County; Earle W. White, Jr.,
Judge.
Following remand, 105 Nev. 1039, 810 P.2d 333 (1989), petitioner brought second
petition for post-conviction relief from conviction for two counts of robbery with use of
deadly weapon. The district court denied the petition, and petitioner appealed. The supreme
court, Rose, J., held that BB gun with caliber of .177 inches was firearm under statute
enhancing sentence for person using firearm in commission of crime.
Affirmed.
__________

2
The Honorable Thomas L. Steffen, Justice, voluntarily recused himself from participation in the decision of
this appeal.
Nathaniel J. Reed and Norman Reed, Las Vegas, for Appellant.
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
BB gun with caliber of .177 inches was firearm under statute enhancing sentence for person using firearm in commission of
crime. NRS 193.165, subd. 1, 202.253.
OPINION
On May 24, 1988, appellant was convicted, pursuant to a guilty plea, of two counts of
robbery with use of a deadly weapon. Appellant was sentenced to two concurrent terms of
fifteen years in the Nevada State Prison for each robbery conviction, plus consecutive terms
of fifteen years for each use of a deadly weapon.
On March 28, 1989, appellant filed in the district court a proper person petition for
post-conviction relief. On April 13, 1989, the district court issued an order dismissing
appellant's petition. Appellant appealed to this court. On November 22, 1989, we issued an
order of remand vacating the district court's order.
On March 16, 1990, appellant filed in the district court a second petition for
post-conviction relief. Following an evidentiary hearing, on May 9, 1990, the district court
issued its findings of fact, conclusions of law, and order denying post-conviction relief. This
appeal followed.
1

Appellant contends that the toy BB gun he used in commission of the crimes had no
deadly capabilities, nor could it have been used in any manner to inflict death or great bodily
harm. Therefore, appellant contends his enhanced sentences cannot stand because the BB gun
was not a deadly weapon. We disagree.
__________

1
Although the notice of appeal states that the appeal is from the judgment of conviction, it is apparent that
the appeal is taken from the district court's order of May 9, 1990, denying appellant's second petition for
post-conviction relief. Therefore, we have treated this as a timely appeal from the order denying appellant's
second petition for post-conviction relief.
Pursuant to NRS 193.165(1), [a]ny 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.
NRS 202.253 defines firearm as any weapon with a caliber of .177 inches or greater from
which a projectile may be propelled by means of explosive, spring, gas, air or other force. In
this case, defense counsel stipulated that the caliber of the BB gun was .177 inches. A BB gun
propels projectiles by means of force. The statutory language is unambiguous and the BB gun
used by appellant fits squarely within the definition of firearm. Firearms are afforded per se
deadly status. See Bias v. State, 105 Nev. 869, 784 P.2d 963 (1989); McIntyre v. State, 104
Nev. 622, 764 P.2d 482 (1988). It was therefore unnecessary for the state to establish whether
the BB gun used by appellant had deadly capabilities. Accordingly, appellant's sentences were
properly enhanced pursuant to NRS 193.165(1). We therefore affirm the order of the district
court denying appellant's second petition for post-conviction relief.
The statute prohibits use of a firearm or other deadly weapon. To me, the use of the
word other means that firearm is a member of the class, deadly weapon. The toy BB
gun used by Manning was not, all agree, a deadly weapon; therefore Manning did not use a
firearm or other deadly weapon.
Under the majority opinion all kinds of licorice and other confectionery firearms would
fall into the statutory definition of firearm or other deadly weapon, provided only that the
cork-on-a-string or gum ball projectile pops out of the toy by way of an aperture of over
.177 inches in diameter. The legislature has added fifteen years to the penalty of a criminal
who uses a deadly weapon in the commission of a crime. The legislature may choose to add
the same penalty for one who uses a toy gun in the commission of a crime, but it has not as
yet done so. It is not the province of this court to make such a substantial change in the
criminal law as this.
____________
107 Nev. 340, 340 (1991) KDI Sylvan Pools v. Workman
KDI SYLVAN POOLS, INC., a Delaware Corporation, Appellant/Cross-Respondent, v.
DALE WORKMAN, Respondent/Cross-Appellant, and TANGO POOLS, Respondent.
No. 21642
May 9, 1991 810 P.2d 1217
Appeal from an order of the district court granting partial summary judgment; cross-appeal
from order of the district court staying execution of the summary judgment. Eighth Judicial
District Court, Clark County; Joseph T. Bonaventure, Judge.
Contractor brought action against owner and another contractor, asserting contract and tort
claims. Owner filed counterclaim asserting claims for abuse of process, intentional infliction
of emotional distress, and defamation. The district court entered summary judgment against
contractor on main claim and filed orders staying execution of portion of summary judgment.
Parties appealed. The supreme court held that: (1) summary judgment was not final
appealable judgment and was not amendable to certification; (2) appeal could not be taken
from order staying execution of judgment; and (3) attorneys for both parties were subject to
sanctions for their failure to properly complete docketing statements.
Appeal and cross-appeal dismissed.
Jimmerson, Davis & Santoro and Lynn M. Hansen, Las Vegas, for
Appellant/Cross-Respondent.
McCullough & Ream, Las Vegas, for Respondent/Cross-Appellant.
Marquis, Haney & Aurbach, Las Vegas, for Respondent.
Owner's counterclaim against contractor for abuse of process, intentional infliction of emotional distress, and defamation was not
rendered moot by entry of summary judgment in owner's favor on contractor's main claim such that summary judgment could be
considered final appealable judgment that resolved all issues pending, notwithstanding contractor's contention that counterclaim was
merely alternative defense and that owner had in fact indicted that he did not intend to pursue counterclaim. NRAP 3A(b)(1).
District court's grant of summary judgment on contractor's main claim against owner was not amendable to certification as final;
owner's counterclaim against contractor for abuse of process, intentional infliction of emotional distress, and defamation arose from
same set of facts and transactions that gave rise to main claim, and was closely related to claim resolved by trial court. NRCP 54(b).
Appeal could not be taken from order of district court staying execution of summary judgment, absent statute or court rule
authorizing such appeal.
Right to appeal is statutory and, where no statutory authority to appeal is granted, no right to appeal exists.
Attorneys' explanations for failing to properly complete docketing statementsone attorney failed to answer certain questions in
mistaken belief that counterclaim had been rendered moot, and second attorney indicated that her incorrect responses to questions
dealing with appealability were due to oversightamounted to admission that attorneys did not consider statements important enough
to warrant their careful attention and warranted sanctions in amount of $100 each. NRAP 14(c).
OPINION
Per Curiam:
This is an appeal from an order of the district court granting respondents partial summary
judgement. This is also a cross-appeal by respondent Dale Workman from an order of the
district court staying execution of the summary judgment for a period of forty-eight hours.
1
Because our preliminary review of the record revealed potential jurisdictional defects, this
court ordered the parties to show cause why this appeal and cross-appeal should not be
dismissed for lack of jurisdiction. We have now received the parties' responses.
On July 28, 1989, appellant KDI Sylvan Pools, Inc., (Sylvan) filed a complaint against
respondents Dale Workman and Tango Pools. Sylvan alleged that Workman had entered into
a contract with Sylvan for the construction of a pool, that Workman had breached that
contract, and that Tango, with knowledge of the Sylvan-Workman contract, had entered into a
contract to construct the pool for Workman. Sylvan alleged causes of action for breach of
contract, interference with a business relationship and interference with a prospective
economic advantage.
On September 1, 1989, Tango answered the complaint and denied liability. On September
25, 1989, Workman answered the complaint, denied liability, and filed a counterclaim
against Sylvan.
__________

1
The district court subsequently issued an order staying execution of the summary judgment pending this
appeal. Workman has not appealed from this order. Workman argues that all parties to this action understood
that the initial temporary stay would become permanent if appellant posted a bond within the specified
forty-eight hour period. The point of this argument appears to be that the temporary stay order was final for
purposes of appeal. This argument need not be addressed, because this court's determination of the appealability
of the temporary stay order does not turn on the question of finality.
complaint, denied liability, and filed a counterclaim against Sylvan. According to Workman,
Sylvan's representative induced Workman to sign the contract in question by misrepresenting
to Workman that the document was a non-binding estimate of the cost of constructing a pool.
Workman claimed that Sylvan filed the complaint in order to extract an unfair settlement of
Sylvan's false claim against Workman. Workman's counterclaim alleged causes of action for
malicious, fraudulent and oppressive abuse of process, intentional infliction of emotional
distress and defamation.
On August 17, 1990, the district court entered summary judgment in favor of Workman
and Tango against Sylvan. The district court also awarded attorney's fees and costs to
Workman and Tango. The district court's judgment did not resolve Workman's counterclaim
against Sylvan. Sylvan filed a notice of appeal on September 6, 1990.
On September 12, 1990, the district court filed an order staying for a period of forty-eight
hours execution of the summary judgment. On September 21, 1990, Workman filed a
document which he styled Notice of Cross-Appeal.
2

[Headnote 1]
Sylvan concedes that Workman's counterclaim remains pending below, but argues that the
counterclaim was rendered moot by the district court's granting of summary judgment to
Workman. Specifically, Sylvan argues incorrectly that Workman's counterclaim is an
alternative defense to Sylvan's complaint which is based on the theory that there was a valid
contract that could be enforced against Workman. Sylvan further argues that Workman
indicated in the court below that he does not intend to pursue his counterclaim.
Workman's counterclaim is based on a theory that no valid contract was entered into, and
Workman's claims for damages based on Sylvan's fraudulent business practices have neither
been dismissed nor rendered moot by the district court's order of partial summary judgment.
The fact that Workman may not be inclined to pursue his counterclaim also does not render
the counterclaim moot or operate as a formal dismissal of the claim.
__________

2
We note that the Nevada Rules of Appellate Procedure do not provide for the filing of a notice of
cross-appeal. Instead, a cross-appeal arises by operation of law when multiple, opposing parties file notices of
appeal. See NRAP 3(a) (appeal is taken by filing notice of appeal); NRAP 4(a)(1) (if a timely notice of appeal
has been filed, any other party may appeal by filing and serving a notice of appeal); NRAP 28(h) (in cases
involving a cross-appeal, plaintiff below is designated the appellant for all purposes).
We conclude, therefore, that the district court's summary judgment of August 17, 1990, is not
a final appealable judgment pursuant to NRAP 3A(b)(1), because it does not finally resolve
the entire action pending below.
[Headnote 2]
In response to this court's order to show cause, Sylvan sought and obtained from the
district court an order certifying its judgment as final pursuant to NRCP 54(b). However,
because the claims of Workman against Sylvan arise from the same set of facts and
transactions that gave rise to Sylvan's claims against Workman, and are closely related to the
claims resolved by the district court, the district court's summary judgment is not amenable to
certification pursuant to NRCP 54(b). See Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d
441 (1986); see also 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). Thus, the
district court erroneously certified as final and appealable its judgment of August 17, 1990.
See Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984) (the district
court, through certification of finality, cannot create finality when order is not amenable to
certification). We conclude, therefore, that we lack jurisdiction to entertain this appeal, and
we dismiss this appeal.
3

[Headnotes 3, 4]
Next, no statute or court rule authorizes an appeal from an order of the district court
staying execution of a summary judgment. 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); see also Brunzell Constr. v. Harrah's Club, 81 Nev. 414, 419, 404 P.2d 902, 905
(1965) (an order granting or denying a stay of proceedings is not appealable). We therefore
conclude that we lack jurisdiction to entertain this cross-appeal, and we dismiss this
cross-appeal.
[Headnote 5]
Finally, counsel for Sylvan, Lynn M. Hansen, neglected to complete questions 21 through
25 of the docketing statement she filed on behalf of Sylvan. These questions concern the
finality of judgments, and are particularly relevant to this appeal. In response to our order to
show cause, Hansen states that she believed it was unnecessary to answer the questions
because, in her opinion, Workman's counterclaim had been rendered moot by the district
court's decision.
__________

3
We deny Sylvan's request to hold this appeal in abeyance in order to allow Sylvan to seek an order from the
district court resolving Workman's counterclaim.
response to our order to show cause, Hansen states that she believed it was unnecessary to
answer the questions because, in her opinion, Workman's counterclaim had been rendered
moot by the district court's decision. Nevertheless, the questions left blank by counsel are to
be completed in every case where more than one claim for relief was presented in the action.
. . . (Emphasis added.) Clearly, more than one claim was presented in this case, and Hansen
inappropriately neglected to complete the docketing statement properly.
Similarly, counsel for Workman, Christopher R. McCullough, incorrectly indicated in the
docketing statement he filed on behalf of Workman that the summary judgment in this case
was certified as final pursuant to NRCP 54(b), although the judgment had not yet been so
certified when the docketing statement was filed. McCullough further incorrectly stated that
an [o]rder granting Summary Judgment is independently appealable under N.R.A.P. 3A(b),
although a summary judgment is not listed in NRAP 3A(b) as an appealable order. Finally,
McCullough did not indicate any authority for this court to entertain Workman's appeal from
an order staying execution of the summary judgment. McCullough acknowledges these errors
in the docketing statement, and indicates that they were due to oversight.
When attorneys do not take seriously their obligations under NRAP 14 to properly and
conscientiously complete the docketing statement, they waste the valuable judicial resources
of this court, making the imposition of sanctions appropriate. See NRAP 14(c). The attorneys'
explanations in this case for their failure to properly complete the docketing statements
amount to an admission that the attorneys did not consider the statements important enough
to warrant their careful attention. We believe that sanctions are warranted to discourage such
disregard of the rules in the future.
Accordingly, as a sanction for their conduct, attorneys Lynn M. Hansen and Christopher R.
McCullough shall each, within twenty (20) days from the date of this opinion, pay to the
Nevada Supreme Court Law Library the sum of one hundred dollars ($100.00), and provide
the clerk of this court with proof of such payment.
____________
107 Nev. 345, 345 (1991) Crawford v. State
DAVID EUGENE CRAWFORD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20692
May 9, 1991 811 P.2d 67
Appeal from judgment of conviction upon jury verdict on six counts. Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court of sexual assault and related offenses, and he
appealed. The supreme court, Steffen, J., held that: (1) evidence of defendant's alleged prior
bad acts should not have been admitted; (2) evidence of victim's prior conviction should have
been admitted for impeachment purposes; and (3) evidence did not support supplemental jury
charge on crime of attempt.
Reversed.
Mowbray, C. J., and Springer, J., dissented.
Moran & Weinstock and Andrew Leavitt, Las Vegas, for Appellant.
Tufteland, Deputy District Attorney, and Robert L. Langford, Deputy District Attorney, Clark
1. Criminal Law.
Whether prior bad acts are admissible is within trial court's sound discretion, and trial court's decision will not be disturbed on
appeal unless manifestly wrong. NRS 48.045, subd. 2.
2. Criminal Law.
Evidence that defendant charged with sexual assault of male victim had previously beaten his wife and ejected her from their
home, and had possibly contracted venereal disease from act of intercourse with female neighbor, was not admissible to show
defendant's sexual frustration or his violent tendencies, and its admission constituted prejudicial prior bad acts evidence; incident
with wife occurred more than month before alleged assault and evidence of intercourse with female neighbor in fact made it unlikely
that defendant was motivated by sexual frustration when he allegedly assaulted male victim. NRS 48.045, subd. 2.
3. Witnesses.
State failed to meet its burden of showing that certified record of assault victim's criminal record was constitutionally infirm such
that it could not be admitted for impeachment purposes; copy clearly indicated that victim was charged with grand larceny, treated as
adult, and convicted and sentenced to two years' probation. NRS 50.095, 50.095, subd. 2.
4. Criminal Law.
It is burden of party disclaiming admissibility of exemplified record to show that record is constitutionally infirm.
5. Criminal Law.
Error in excluding evidence offered by sexual assault defendant to impeach alleged victim was not harmless; victim was only
witness to alleged crime, and there was no physical evidence of actual assault; moreover, victim had previously been terminated from
employment by defendant, giving him motive for revenge. NRS 50.095, 50.095, subd. 2.
6. Criminal Law.
Evidence in defendant's prosecution for sexual assault did not warrant supplemental jury charge on attempt; defendant contended
that no sexual conduct occurred, while victim testified that three acts of assault in fact occurred.
7. Indictment and Information.
Attempt crime may not be lesser included offense of completed crime since element of crime of attempt is failure to accomplish
completed crime; however, State may charge defendant with completed crime and nonetheless obtain conviction for attempt since
every consummated crime is necessarily preceded by attempt to commit that crime. NRS 175.501, 193.330.
Despite right of trier of fact to convict on attempt where State has only charged completed offense, it may not do so unless there is
evidence to support attempt.
OPINION
This is a criminal appeal from a judgment of conviction upon a jury verdict of one count of
Battery With Intent to Commit a Crime, on court of Coercion, and four counts of Attempt
Sexual Assault With Use of a Deadly Weapon. Crawford contests the convictions on four
grounds: (1) there was insufficient evidence to convict him of the crimes; (2) he was
prejudiced by the admission into evidence of certain prior bad acts; (3) he was further
prejudiced by the trial court's decision not to allow the offered proof of a witness' prior felony
conviction for impeachment purposes; and (4) the court's additional instruction on the law of
attempt unduly prejudiced defendant. Because prejudicial error occurred, we reverse.
The Facts
Appellant David Eugene Crawford was charged by way of a seven count criminal
complaint, Count I charged Crawford with one count of Criminal Battery With Intent to
Commit a Crime. He was accused of telling the complaining witness, Lash Felger, that he
was going to have sexual intercourse with him, and thereafter grabbing Felger by the hair
and holding a knife to his throat.
thereafter grabbing Felger by the hair and holding a knife to his throat.
Count II charged Crawford with Coercion. Crawford was accused of forcing Felger to
leave the living room, go into the bedroom and remove his clothing.
Counts III, IV, and VI charged Crawford with Sexual Assault With Use of a Deadly
Weapon. Crawford was accused of sexually penetrating Felger's anus against Felger's will.
Count V accused Crawford of Attempt Sexual Assault With Use of a Deadly Weapon.
More specifically, the charge alleged Crawford tried to force Felger to perform fellatio upon
him.
Count VII alleged Coercion. Crawford was accused of forcing Felger into the bathroom to
clean off Felger's rectal area.
Crawford pleaded not guilty to all charges. At trial, the district court judge allowed the
State to admit evidence that Crawford beat his wife and kicked her out of the house
approximately a month prior to the night of the alleged crimes. Evidence was also admitted
concerning Crawford's possible contraction of a venereal disease as a result of having had
sexual relations with a female neighbor. Crawford's attempt to impeach Felger by introducing
evidence of a felony conviction was rejected by the district court.
Felger was the only witness who testified concerning the commission of the crimes. He
testified that before Crawford commenced his criminal conduct, he and Crawford had been
drinking, eating, and calling Crawford's wife; thereafter, the two men went to Crawford's
apartment. Felger testified that when they arrived at Crawford's place, Crawford went into his
bedroom and reappeared in the living room wearing a bathrobe and carrying a knife with a
narrow blade.
Felger stated that Crawford told him he was going to have sexual intercourse with him.
After Felger protested, Crawford allegedly forced Felger into the bedroom by pulling his hair
and holding a knife at his throat. Felger testified that when the two men entered the bedroom,
Crawford told him to remove his clothes. Thereafter, Crawford allegedly penetrated Felger's
anus three separate times, and tried to force Felger to perform an act of fellatio. Afterwards,
Felger was directed to go to the bathroom and clean himself off.
After the recited incidents had allegedly occurred, Felger called the police, and tests of
head and pubic hairs and blood and saliva were taken from Felger and Crawford. Moreover, a
sample of residue from Felger's rectal area was tested in addition to Crawford's bed sheets.
The results of the tests revealed semen and pubic hairs similar to Crawford's on the bed
sheets, and no serological evidence of value on the remainder of the items.
Carla Noziglia, Director of the Forensic Laboratory at Las Vegas Metropolitan Police
Department, testified that in cases where ejaculation has occurred in the anus, three
factors may prevent a finding of serological evidence: {1) time between ejaculation and
testing;1 {2) cleaning the area;2 and {3) the presence of hostile bacteria in the rectal
track.
Vegas Metropolitan Police Department, testified that in cases where ejaculation has occurred
in the anus, three factors may prevent a finding of serological evidence: (1) time between
ejaculation and testing;
1
(2) cleaning the area;
2
and (3) the presence of hostile bacteria in
the rectal track. There was no tearing or blood present, and the anal scope was normal when
Felger underwent a rectal exam.
On cross-examination it was revealed that Crawford had terminated Felger from his
employment at the apartment complex. Crawford had fired Felger prior to the time of the
alleged acts after Felger had worked for only one day.
Discussion
We commonly uphold jury verdicts when the record reflects that the jury could have
reasonably been convinced . . . [beyond a reasonable doubt of the defendant's guilt] by the
evidence it had a right to consider. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313
(1980). Unfortunately, the jury in the instant case heard evidence it had no right to consider
when it was made aware of Crawford's prior bad acts. Additionally, the jury was not allowed
to hear relevant evidence that could have impeached the complaining witness, an error of
substantial magnitude given the fact that the jury's verdict obviously reflected an
unwillingness to fully credit Felger's testimony.
1. Crawford's alleged prior bad acts
[Headnote 1]
Evidence of a defendant's prior bad acts is inadmissible to show that he or she acted in
conformity therewith. NRS 48.045(2). The justification for this rule is that [e]vidence of
uncharged misconduct may unduly influence the jury, and result in a conviction of the
accused because the jury believes he is a bad person. Berner v. State, 104 Nev. 695, 697, 765
P.2d 1144, 1145 (1988). Such evidence may be admissible, however, to show motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
NRS 48.045(2). It is within the trial court's sound discretion whether prior bad acts are
admissible, and such decisions will not be disturbed on appeal unless manifestly wrong. See
Brackeen v. State, 104 Nev. 547, 552, 763, P.2d 59, 63 (1988).
__________

1
Serological evidence will normally be found if the test is taken within six (6) hours after ejaculation. Felger
was tested between two and three hours after the time of the alleged assaults.

2
Most commonly by an enema or possibly a bowel movement.
[Headnote 2]
As noted above, the trial court admitted evidence indicating that Crawford had beaten his
wife and ejected her from the home, and that he possibly contracted a venereal disease from
an act of intercourse with a female neighbor.
The State argues that evidence of the prior bad acts was admissible for two reasons. First,
the State contends that Crawford's separation from his wife shows he was sexually frustrated
on the night of the assaults. Second, the State argues that it was necessary for the State to
prove that the assaults were against the will of the victim. Finally, the State maintains that the
prior bad acts tended to show that the assaults were accomplished by force. We disagree. The
stated relevance of these prior bad acts is strained and questionable at best. Crawford's
violence towards his wife and their ensuing separation occurred over a month before the
alleged assaults, and the assertion of an act of domestic violence hardly supports an inference
that Crawford was violent with a non-spouse, let alone a male. Moreover, the evidence does
not support the inference that Crawford's time away from his wife left him sexually frustrated.
To the contrary, according credence to Felger's testimony, Crawford had sex with at least one
female during the time he was separated from his wife. And, there is no evidence that this
encounter was anything but consensual. Moreover, Crawford's heterosexual experiences
hardly provided any probative basis for inferring that he developed the appetite and intent for
a homosexual relationship. The admission of this equivocal, irrelevant evidence constituted
prejudicial error.
2. Prior convictions of the witness
A witness may be impeached by evidence of a criminal conviction if: (1) the crime was
punishable by death or imprisonment for over a year; (2) the conviction occurred less than ten
years after the dates specified under NRS 50.095(2); (3) the conviction has not been
pardoned; and (4) the conviction was not the result of a juvenile adjudication. NRS 50.095.
Moreover, a certified copy of a conviction is prima facie evidence of the conviction. Id.
[Headnote 3]
Felger was convicted in Florida of Grand Larceny in 1987 and placed on two years'
probation. Crawford sought to impeach Felger by inquiring about his prior felony conviction.
Crawford's foundation for the question was a certified copy of Felger's criminal record. The
trial court refused to allow Crawford's counsel to question Felger about the conviction on
the grounds that the certified record was not sufficiently reliable.
counsel to question Felger about the conviction on the grounds that the certified record was
not sufficiently reliable. The trial court ruled that an exemplified copy of the conviction was
required.
[Headnote 4]
It is true that a court may not rely upon the exemplified record, either to impeach or
enhance punishment, when a constitutional infirmity appears from the face of the record.
Scott v. State, 97 Nev. 318, 319, 630 P.2d 257, 258 (1981) (quoting Anglin v. State, 86 Nev.
70, 73, 464 P.2d 504, 506 (1970)). And it is the burden of the party disclaiming admissibility
to show that a document is constitutionally infirm. The State has not met this burden. The
certified document clearly indicates that Felger was charged with grand larceny, treated as an
adult, convicted and sentenced to two years probation. The State simply did not rebut
Crawford's prima facie evidence, and Crawford's counsel should have been allowed to
examine Felger on the point and introduce the certified evidence of a felony conviction in the
event of a denial by Felger.
3

[Headnote 5]
The error in excluding Crawford's impeachment evidence was not harmless. Felger was
the only witness to the alleged crimes and the jury, by its verdict, amply demonstrated its
concern for Felger's credibility. There was no physical evidence of an actual sexual assault by
Crawford. Felger, having been terminated by Crawford, also had a motive for seeking
revenge. If the jury had been made aware of Felger's criminal record, it may have concluded
that Felger was altogether untrustworthy and undeserving of belief as to any of the alleged
happenings.
__________

3
Under Florida's Rules of Criminal Procedure, Rule 3.701(d)(2), conviction' means a determination of
guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of
sentence was suspended (emphasis added). Although the aforesaid definition is included as part of Florida's
sentencing guidelines, it serves to illustrate what in fact occurred with Felger. He was convicted of a felony but
adjudication was withheld during his two-year period of probation. Under Florida law, because Felger's two-year
probation had not expired prior to the date of his testimony in the instant case, evidence of his guilt was properly
admissible for impeachment purposes subject to evidence that no adjudication had yet occurred. See Barber v.
State, 413 So.2d 482, 484 (Fla.Dist.Ct. App. 1982). Because Crawford was erroneously denied the opportunity
to impeach Felger at the time of the original trial, and although Felger's two-year period of probation has now
expired (assuming it was successfully completed), upon retrial, fairness dictates that Crawford be allowed to use
the Florida conviction for impeachment purposes.
[Headnote 6]
Finally, Crawford complains that the district court erred in submitting supplemental
instructions to the jury after it had already commenced its deliberations. The instructions were
given by the trial court in response to a message from the foreman of the jury inquiring
whether the three counts involving charges of sexual assault by anal penetration could be
changed to attempt. In this case we agree that the court erred in giving the instructions.
[Headnote 7]
Before addressing the basis for the error, we note that both the district court and the district
attorney erroneously concluded that Attempt Sexual Assault is a lesser included offense to the
crime of Sexual Assault. In so concluding, the district court relied on NRS 175.501.
4
It is
seen that the statute differentiates between a lesser included offense and an attempt by
referring to both in the disjunctive. Moreover, we have held on numerous occasions that the
test for determining whether a crime is a lesser included offense is whether the offense in
question cannot be committed without committing the lesser offense. See, e.g., Meador v.
State, 101 Nev. 765, 769, 711 P.2d 852, 855 (1985); Moore v. State, 100 Nev. 698, 700, 692
P.2d 1278, 1279 (1984). It is generally held that attempt offenses consist of three elements:
(1) the intent to commit the crime; (2) performance of some act toward the commission of the
crime; and (3) the failure to consummate its commission. See, 22 C.J.S. Criminal Law 116
(1989) citing cases and LaFave & Scott Substantive Criminal Law Vol. 2, 6.2. In Nevada,
the statutory definition of an attempt crime is [a]n act done with intent to commit a crime,
and tending but failing to accomplish it. NRS 193.330. Because an element of the crime of
attempt is the failure to accomplish it, an attempt crime may not be a lesser included offense
of the completed crime. In Nevada, however, the State may charge a defendant with the
completed crime and nevertheless obtain a conviction for attempt as provided by NRS
175.501. This is a just principle despite the absence of the third element of the discrete crime
of attempt (failure to consummate), because in a generic sense, every consummated crime is
necessarily preceded by an attempt to commit the crime.
__________

4
NRS 175.501 reads as follows:
The defendant may be found guilty of an offense necessarily included in the offense charged or of an
attempt to commit either the offense charged or an offense necessarily included therein if the attempt is
an offense.
[Headnote 8]
Despite the right of the trier of fact to convict on attempt where the State has only charged
the completed offense, it may not do so unless there is evidence to support an attempt. See
State v. Chance, 165 S.E.2d 31, 32 (N.C.Ct.App. 1969). In the instant case, the only evidence
was, from the defendant, that no sexual conduct occurred between the two men and, from
Felger, that three acts of sexual assault occurred in the form of forcible anal intercourse. The
jury disbelieved the complaining witness regarding the consummated crimes and thereafter
sought and received instructions for a lesser crime, attempt sexual assault, concerning which
there was no evidence upon which to base a conviction. Therefore, the district court erred in
instructing the jury on the lesser crime of attempt sexual assault concerning the three counts
of sexual assault because there was no evidence of record to support such instructions.
Conclusion
For the reasons specified above, we reverse the judgment of the district court and remand
for a new trial.
5

Rose and Young, JJ., concur.
Mowbray, C. J., with whom Springer, J., joins, dissenting:
After a jury trial, David Crawford was found guilty of the crimes outlined in the majority
opinion. Now, the majority concludes that the district court prejudiced the appellant and that
the jury's verdicts must be rejected. However, for the following reasons, I believe the
appellant's convictions should be affirmed.
BAD ACT TESTIMONY
In general, evidence of other crimes, wrongs, or acts cannot be admitted at a defendant's
trial to show the defendant acted in conformity therewith. NRS 48.045(2). However, [t]he
state is entitled to present a full and accurate account of the circumstances of the commission
of the crime, and if such an account also implicates the defendant or defendants in the
commission of other crimes for which they have not been charged, the evidence is
nevertheless admissible. State v. Izatt, 534 P.2d 1107, 1110 (Idaho 1975); see also Allan v.
State, 92 Nev. 318, 549 P.2d 1402 (1976); State v. Sikes, 427 P.2d 756 (Or. 1967). First, the
majority reasons Crawford's convictions cannot stand because he was prejudiced by
improper bad act testimony at his trial.
__________

5
Obviously, upon retrial, the State may only proceed against Crawford on the one count of battery with
intent to commit a crime and the single count of coercion.
was prejudiced by improper bad act testimony at his trial. I disagree.
A.
Near the beginning of November 1988, Lash Felger and his girlfriend moved into an
apartment at the Racquet Club Apartments. Approximately two to three days thereafter,
Felger was hired to work at the apartment complex; however, appellant Crawford fired Felger
the same day Felger was hired because another person with better qualifications applied for
the job.
A few weeks later, Felger moved into another apartment at the same complex. Felger
shared this apartment with appellant Crawford for approximately five days before Felger
moved into a third apartment, again in the same apartment complex.
Felger testified that on the last day of November 1988, Crawford came to Felger's
apartment and expressed concern that he may have contracted a venereal disease from a
girlfriend. One day later, in the early morning hours of December 1, 1988, Crawford invited
Felger to his apartment. Thereafter, Felger asserts he was sexually assaulted by Crawford.
One of the essential elements of the crime of sexual assault is consent. See NRS
200.366(1). Felger's belief that Crawford may have been suffering from a venereal disease is
probative and relevant to the issue of consent. The decision to allow Felger to recount
Crawford's concerns regarding venereal disease to the jury rested with the sound discretion of
the trial court. Brinkley v. State, 101 Nev. 676, 680, 708, P.2d 1026, 1029 (1985), and should
not be disturbed in this appeal absent a showing that the district court was manifestly wrong
when it allowed the admission of this evidence. Hill v. State, 95 Nev. 327, 330, 594 P.2d 699,
701 (1979). The district court did not manifestly abuse its discretion when it allowed Felger
to discuss Crawford's concerns regarding venereal disease.
B.
The majority also concludes that there was no probative reason for the district court to
allow testimony that Crawford had beaten his wife. I agree. However, I cannot agree that this
error was prejudicial to the appellant.
Guidelines for ascertaining harmless error include whether the issue of innocence or guilt
is close, the quantity and character of the error, and the gravity of the harm charged.
Weakland v. State, 96 Nev. 699, 615 P.2d 252 (1980). The decision of the district court to
allow evidence that appellant once beat his wife seems inconsequential in light of the entire
record and does not mandate a reversal of the jury's verdicts.
IMPEACHMENT EVIDENCE
Pursuant to NRS 50.095, a witness may be impeached by a prior conviction.
1
At the trial,
appellant Crawford sought to impeach Felger's testimony by submitting a document that
allegedly showed Felger had previously been convicted of grand larceny in the State of
Florida. The district court would not allow the submission of the document because the court
was concerned that the information included in the document was not reliable and did not
properly represent a felony conviction. The majority opinion concludes the district court erred
in this regard. I cannot agree.
The document submitted to the district court does not show a prior felony conviction;
rather, it indicates Felger, a minor at the time of the alleged offense in Florida, was treated as
an adult and sentenced to probation, but that adjudication was withheld. Clearly, the district
court did not err when it refused to allow evidence of a witness' prior felony conviction when
the face of the document submitted to support this contention clearly shows the alleged
conviction was nonexistent.
SUFFICIENCY OF THE EVIDENCE
[I]t is the function of the jury, not the appellate court, to weigh the evidence and pass
upon the credibility of the witness. Walker v. State, 91 Nev. 724, 726, 542 P.2d 438, 439
(1975). Further, this court has repeatedly held that it is for the jury to determine the weight
and credibility assigned to conflicting testimony. See Bolden v. State, 97 Nev. 71, 624 P.2d
20 (1981); see also Porter v. State, 94 Nev. 142, 576 P.2d 275 (1978); Stewart v. State, 94
Nev. 378, 580 P.2d 473 (1978); Hankins v. State, 91 Nev. 477, 538 P.2d 167 (1975).
__________

1
1. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a
crime is admissible but only if the crime was punishable by death or imprisonment for more than 1 year
under the law under which he was convicted.
2. Evidence of a conviction is inadmissible under this section if a period of more than 10 years has
elapsed since:
(a) The date of the release of the witness from confinement; or
(b) The expiration of the period of his parole, probation or sentence, whichever is the later date.
3. Evidence of a conviction is inadmissible under this section if the conviction has been the subject of
a pardon.
4. Evidence of juvenile adjudications is inadmissible under this section.
5. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible.
Evidence of the pendency of an appeal is admissible.
6. A certified copy of a conviction is prima facie evidence of the conviction.
The majority concludes the district court erred when it submitted supplemental jury
instructions after the jury had commenced deliberations. Here, the majority reasons that the
supplemental instructions were inappropriate because there was insufficient evidence
produced at trial to support a conclusion that Crawford had failed to insert his penis into
Felger's anus. Again, I respectfully disagree with the majority's conclusions.
Felger testified he was invited to Crawford's apartment on the night in question. After
arriving at the apartment, Felger told the jury that Crawford produced a knife, held it to
Felger's throat, and forced Felger to take off his clothes. Felger then told the jury that his anus
was penetrated three separate times by Crawford's penis. However, prior to trial, Felger's
rectum was swabbed and blood, saliva, and hair samples were taken from both Felger and
Crawford. Scientific tests on these items failed to corroborate Felger's assertion that his anus
had been penetrated by Crawford's penis. Further, an examination of Felger's rectum failed to
indicate trauma or an abnormal anal scope.
The jury was asked to evaluate this contradictory evidence. They did and concluded that
even though Crawford had attempted to sexually assault Felger, Crawford was unsuccessful.
The fact that Felger believed otherwise does not indicate the jury's conclusion was wrong, nor
does it mandate a finding from this court that there was insufficient evidence to support the
district court's supplemental jury instructions. On the contrary, the lack of semen and
serological evidence in Felger's rectum is sufficient to support the jury's conclusion that
Crawford was unsuccessful when he tried to sexually assault Felger. The jury's factual
findings on this issue are supported by the evidence and should be affirmed by this court.
2

__________

2
The majority is concerned that Felger concocted his allegations of sexual assault to avenge his termination
as an employee of the apartment complex. It is difficult to understand why Felger would create such an immense
fabrication simply because he was terminated from a job he held for one day. Also, a concern that Felger may
have wrongfully accused Crawford of sexual assault seems inconsistent with the facts in the record: Felger
accused Crawford of sexual assault a number of weeks after Felger lost his job at the apartment complex, and
during this intervening period of time, Felger and Crawford shared an apartment, visited each other, and
exchanged confidences.
Even more important is the fact that the jury was allowed to consider the events surrounding Felger's
termination and whether Felger's allegations of sexual assault were contrived. Again, the jury should be allowed
to assess conflicting facts and arrive at a conclusion without interference from this court. The jury decided
Felger had not fabricated the crimes alleged against the appellant, and this court should defer to the jury's
findings on this issue.
___________
107 Nev. 356, 356 (1991) Velsicol Chemical v. Davidson
VELSICOL CHEMICAL CORPORATION, an Illinois Corporation, Appellant, v. ERNEST
DAVIDSON, DARLENE DAVIDSON, Individually and as Guardians Ad Litem of
SHERENE DAVIDSON, and ERNEST DAVIDSON, JR., and THEIR MINOR
CHILDREN, Respondents.
No. 21147
VELSICOL CHEMICAL CORPORATION, an Illinois Corporation, Appellant, v. BILL
BECKMYER'S PEST-A-WAY CORPORATION, a Nevada Corporation, Respondent.
No. 21446
May 16, 1991 811 P.2d 561
Consolidated appeals from orders dismissing certain defendants from an action for general
and punitive damages alleging negligence and strict liability. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Manufacturer of pesticide appealed from order of the district court, which approved
settlement between homeowners and codefendant applicator. The supreme court held that
determination of good faith was to be left to the trial court's discretion.
Affirmed.
Jolley, Urga, Wirth & Woodbury and Jay Earl Smith and Brian E. Holthus, Las Vegas;
Spriggs & Hollingsworth and Paul Gaston, Washington, D.C., for Appellant.
Johns & Johns, Las Vegas, for Respondents Davidsons.
Barker, Gillock, Koning, Brown & Earley, Las Vegas; Cozen & O'Connor and John L.
Choate, Columbia, South Carolina; Laxalt & Nomura, Las Vegas, for Respondent Beckmyer.
1. Compromise and Settlement.
Determination of good faith of settlement by one defendant with plaintiff is left to the trial court's discretion, and no particular
factors, such as those required by California settlement statute, are applicable. NRS 17.245.
Finding that settlement by homeowners with pesticide supplier was in good faith, despite objections of codefendant manufacturer
of the pesticide was supported by evidence and settlement called for payment of $55,000, that complaint alleged damages in excess of
$40,000, and evidence that the pesticide was not properly labeled with respect to methods of application.
OPINION
Per Curiam:
This appeal involves a challenge by a non-settling defendant to the district court's approval
of a settlement between a codefendant and the plaintiff. Appellant, Velsicol Corporation
(Velsicol), claims that the district court failed to consider certain factors in finding that the
settlement was made in good faith.
[Headnote 1]
NRS 17.245 requires a settlement to be a good faith settlement, but gives little guidance
in applying this standard. This court has never discussed the meaning of good faith as it is
used in NRS 17.245. Velsicol argues for an interpretation consistent with California law
which requires a hearing on good faith and the consideration of specific factors. Based upon
the difference between the California statute and the applicable Nevada statute, we refuse to
adopt the California rule. The determination of good faith in this situation should be left to
the trial court, and the trial court's decision should not be disturbed absent an abuse of
discretion.
Despite claims asserted in its brief, Velsicol fails to show that the trial court abused its
discretion in finding that the settlement was made in good faith. Accordingly, we affirm the
decision of the trial court.
In 1979, respondent, Pest-A-Way Corporation (Pestaway) applied Termide, a pesticide
produced by appellant, Velsicol Corporation, to the partially constructed home of
respondents, Ernest and Darlene Davidson (Davidsons). The soil treatment guarantee states
that the Termide was power sprayed into the soil.
Four years later, after the Davidsons had their home inspected, Thomas Smigel of the
Nevada Department of Agriculture determined that the Termide had been improperly applied
at the Davidson home. In September of 1984, the Davidsons filed a verified complaint with
the Nevada Department of Agriculture alleging misuse of the Termide which resulted in
continued illness to the Davidson family.
A hearing officer of the Department of Agriculture found that Termide was applied to the
Davidson residence by broadcast spraying and that such an application was not contrary to the
product's labeling and therefore not improper. The hearing officer also found that a specific
instruction prohibiting broadcast spraying of Termide was not added to the Termide label
until mid-1980.
Subsequently, the Davidsons filed a complaint in district court alleging injuries resulting
from their exposure to Termide.
alleging injuries resulting from their exposure to Termide. The Davidsons' complaint alleged
that Pestaway improperly applied the product to the crawlspace under their home, that the
product was unsafe for its intended use and that inadequate warning was provided regarding
application to crawlspaces.
In January of 1990, Pestaway reached a settlement with the Davidsons agreeing to pay the
Davidsons $50,000.00 (later raised to $55,000.00). On February 6, 1990, Pestaway moved for
a determination that the settlement was made in good faith and for certification of the
settlement pursuant to NRCP 54(b). After briefs were filed by all parties, the trial court
entered an order dismissing the Davidsons' action against Pestaway with prejudice. On
appeal, Velsicol challenges the district court's orders.
Appellant contends that the following factors should have been considered by the trial
court in determining good faith: (1) the settling defendant's insurance coverage and financial
condition; (2) the relative potential liability of the parties; and (3) the reasonable range of
settling defendant's liability.
NRS 17.245 addresses the legal effect of releases and settlements. The statute specifically
provides that a release is given effect when it is given in good faith.
1
The settlement entered
into by Pestaway and the Davidsons resulted in the release given to Pestaway by the
Davidsons. This case ultimately amounts to a dispute over the definition of good faith as it
is used in NRS 17.245. Velsicol contends that the district court failed to take into
consideration certain facts and thereby defined good faith too narrowly. We disagree.
Velsicol's contention that certain factors must be considered by the court in approving a
settlement relies upon the California rule found in Tech-Bilt, Inc. v. Woodward-Clyde &
Assoc., 698 P.2d 159 (Cal. 1985) and Commercial Union Ins. Co. v. Ford Motor Company,
640 F.2d 210 (9th Cir. 1981) (applying California law). In Tech-Bilt, the California Supreme
Court held that the dual objectives of the contribution statute are "equitable sharing of the
costs among the parties at fault, and second, encouragement of settlements."
__________

1
Effect of release or covenant not to sue. When a release or a covenant not to sue or not to enforce
judgment is given in good faith to one of two or more persons liable in tort for the same injury or the
same wrongful death:
1. It does not discharge any of the other tortfeasors from liability for the injury or wrongful death
unless its terms so provide; but it reduces the claim against the others to the extent of any amount
stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is
the greater; and
2. It discharges the tortfeasor to whom it is given from all liability for contribution to any other
tortfeasor.
dual objectives of the contribution statute are equitable sharing of the costs among the
parties at fault, and second, encouragement of settlements. Tech-Bilt, 698 P.2d at 163
(citations omitted). Quoting from River Garden Farms, Inc. v. Superior Court, 26 Cal.App.3d
986, 997 (1972), the Tech-Bilt court took an expansive view of good faith finding that:
Lack of good faith encompasses many kinds of behavior. . . . Thus, formulation of a
precise definition of good faith is neither possible nor practicable. The Legislature has
here incorporated by reference the general equitable principle of contribution law which
frowns on unfair settlements, including those which are so poorly related to the value
of the case as to impose a potentially disproportionate cost on the defendant ultimately
selected for suit.
Tech-Bilt, 698 P.2d at 163 (emphasis in original).
The court held that the policies of contribution would be disserved by an approach which
emphasized the policy of encouraging settlement to the exclusion of equitable allocation of
costs among tortfeasors. Id. at 166. Finally, the Tech-Bilt court concluded that a trial court
must consider whether the amount of the settlement is within the reasonable range of the
settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries. Id.
In construing NRS 17.245 the United States District Court for the District of Nevada
agreed with the California rationale and held that:
Factors to be considered by the Court in assessing whether a settlement is in good faith
is [sic] the amount paid in settlement, the allocation of the settlement proceeds among
plaintiffs, the insurance policy limits of settling defendants, the financial condition of
settling defendants, and the existence of collusion, fraud or tortious conduct aimed to
injure the interests of non-settling defendants.
In Re MGM Grand Hotel Fire Litigation, 570 F.Supp. 913, 927 (D.Nev. 1983). The court in
MGM concluded that the primary factor in determining good faith is the price of the
settlement. Id. at 928. This court has never addressed this issue. The federal court was forced
to interpret the good faith requirement and apparently assumed that Nevada would follow the
rule adopted by California.
The California Code of Civil Procedure section, which the court interpreted in Tech-Bilt,
provides more specific direction than the Nevada statute with respect to determination of
good faith.2 The California statute mandates a hearing on the issue of good faith while
the Nevada statute is silent on the subject.
faith.
2
The California statute mandates a hearing on the issue of good faith while the Nevada
statute is silent on the subject. We see this distinction as significant.
Because there is no specific language in the Nevada statute requiring a hearing on the issue
of good faith, we have decided not to adopt the California rule. We hold that determination of
good faith should be left to the discretion of the trial court based upon all relevant facts
available, and that, in the absence of an abuse of that discretion, the trial court's findings
should not be disturbed.
[Headnote 2]
Velsicol contends that it was not negligent in any way based upon the labeling of the
Termide and that Pestaway is primarily, if not exclusively, liable for any injuries suffered by
the Davidsons. Velsicol claims that the record indicates that any injuries suffered by the
Davidsons occurred solely as a result of the misapplication of the Termide by Pestaway.
Although the Davidsons claim that Pestaway improperly applied the Termide, they also claim
in their amended complaint that Velsicol knew of the dangers of Termide and failed to give
adequate warnings and instructions regarding the product's application.
As support for its contention that Pestaway is primarily liable, Velsicol cites the fact that
the label on Termide at the time the Davidsons' house was sprayed had been approved by the
EPA. Velsicol also points to the deposition of Thomas Smigel of the Nevada Department of
Agriculture who stated that, in his view, the label on Termide was clear and that he was very
surprised by the decision of the hearing officer.
__________

2
California Code of Civil Procedure Section 877.6 provides in pertinent part:
(a) Any party to an action wherein it is alleged that two or more parties are joint tortfeasors or
co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement
entered into be the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon
giving notice thereof in the manner provided . . . .
(b) The issue of the good faith of a settlement may be determined by the court on the basis of
affidavits served with the notice of hearing, and any counteraffidavits filed in response thereto, or the
court may, in its discretion, receive other evidence at the hearing.
(c) A determination by the court that the settlement was made in good faith shall bar any other joint
tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable
comparative contribution, or partial or comparative indemnity, based on comparative negligence or
comparative fault.
(d) The party asserting the lack of good faith shall have the burden of proof on that issue.
. . . .
Respondents have a very different view of the case. Pestaway points to evidence in the
record indicating that Velsicol is primarily liable for any injuries suffered by the Davidsons.
In a letter from Velsicol to the Nevada Department of Agriculture, a Velsicol official admits
that in mid-1980 a change was made to the Termide label specifically prohibiting broadcast
spraying of Termide to crawlspaces. The reason for the change is said to be the fact that some
pest control operators applied Termide to crawlspaces by broadcast spraying. Further, a
hearing officer of the Nevada Department of Agriculture found no clear and convincing
evidence that Pestaway applied Termide improperly or in a method contrary to the labeling of
the product. There is ample evidence from which the trial court could have concluded that
Velsicol was primarily liable and that Pestaway was not negligent.
Finally, appellant challenges the settlement based upon its amount. Velsicol cites
numerous California cases for the proposition that the good faith requirement is not met when
the settlement amount is grossly disproportionate to the settling defendant's fair share of
damages. See Grand Terrace v. Superior Court (Boyter), 192 Cal.App.3d 1251 (1987); Torres
v. Union Pacific R.R. Co., 157 Cal.App.3d 499 (1984); American Motorcycle Assn. v.
Superior Court, 578 P.2d 899 (Cal. 1978). The actual amount of damages suffered by the
Davidsons is not known. The Davidsons' amended complaint alleges damages in excess of
$40,000.00, while Velsicol (without citing to the record) claims that the Davidsons place an
extraordinarily high value upon their damages, apparently several hundred thousand
dollars. Based upon the record or the lack thereof, appellant has failed to show that the
settlement amount agreed to by Pestaway ($55,000.00) is disproportionately lower than
Pestaway's fair share of damages.
We cannot conclude from the record that the trial court abused its discretion in finding that
the settlement was made in good faith. Accordingly, we affirm the trial court's orders
approving the settlement.
Mowbray, C. J., Springer, Steffen, and Young, JJ., and Christensen, D. J.,
3
concur.
__________

3
The Honorable Bob Miller, Governor, designated The Honorable Carl J. Christensen, District Judge of the
Eighth Judicial District, to sit in this case in place of The Honorable Robert E. Rose, Justice, who voluntarily
disqualified himself. Nev. Const. art. 6, 4.
____________
107 Nev. 362, 362 (1991) Aetna Life & Casualty v. Rowan
AETNA LIFE & CASUALTY INSURANCE COMPANY, Appellant, v. MARIE ROWAN,
Respondent.
No. 21363
June 6, 1991 812 P.2d 350
Appeal from order denying motion to set aside a default and to intervene. Eighth Judicial
District Court, Clark County; Donald M. Mosely, Judge.
Insurer moved to set aside default judgment and to intervene in personal injury action
arising out of automobile accident. The district court denied both motions, and appeal was
taken. The supreme court held that: (1) order denying motion to set aside default is not
substantively appealable, and (2) order denying motion to intervene is not substantively
appealable.
Appeal dismissed.
Keefer, O'Reilly, Ferrario & Eskin, Las Vegas, for Appellant.
Albert D. Massi, Las Vegas, for Respondent.
Order denying motion to set aside default is not substantively appealable. NRCP 55.
2. Appeal and Error; Courts.
Order denying motion to intervene is not substantively appealable; review of such orders may be had in supreme court only by
petition for extraordinary relief. NRAP 3A.
OPINION
Per Curiam:
On May 2, 1989, respondent filed in the district court a complaint seeking damages against
a third party for injuries that respondent received in an automobile accident. No answer was
filed and, on January 22, 1990, the district court entered a default against the alleged
tortfeasor. On February 6, 1990, appellant filed in the district court a motion to set aside the
default pursuant to NRCP 55. Appellant also requested permission to file a complaint in
intervention to defend against a claim by respondent for uninsured motorist benefits. See
Allstate Insurance Co. v. Pietrosh, 85 Nev. 310, 454 P.2d 106 (1969). The district court
denied both motions, and this appeal followed.
On August 22, 1990, this court entered an order noting potential jurisdictional defects.
Specifically, we noted that orders denying motions to set aside defaults pursuant to NRCP 55
are not substantively appealable.
107 Nev. 362, 363 (1991) Aetna Life & Casualty v. Rowan
substantively appealable. See Long v. A-1 24 Hour Towing, 101 Nev. 682, 707 P.2d 1151
(1985); Kokkos v. Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975). We also noted that because the
district court denied appellant's motion to intervene, appellant never became a party to the
actions below. See Moore v. District Court, 77 Nev. 357, 364 P.2d 1073 (1961). Thus, we
opined that the order denying appellant's motion to intervene may not be substantively
appealable. See NRAP 3A (permitting only aggrieved parties to appeal). Therefore, we
directed appellant to show cause why this appeal should not be dismissed for lack of
jurisdiction.
[Headnotes 1, 2]
In response to this court's order, appellant concedes that an order denying a motion to set
aside a default is not substantively appealable. Appellant asserts, however, that an order
denying a motion to intervene is substantively appealable, and cites cases from other
jurisdictions to support its argument.
Appellant's authorities are unpersuasive. In Moore v. District Court, 77 Nev. 357, 364 P.2d
1073 (1961), this court clearly held that a proposed intervenor does not become a party to a
lawsuit unless and until the district court grants a motion to intervene. NRAP 3A confers a
right to appeal only upon a party aggrieved by a judgment of a district court. Therefore, we
conclude that an appeal cannot lie from an order of a district court that denies a motion to
intervene. Review of such orders may be had in this court only by a petition for extraordinary
relief.
Because appellant has failed to challenge a substantively appealable order, we conclude
that we lack jurisdiction to entertain this appeal. Accordingly, we dismiss this appeal.
____________
107 Nev. 363, 363 (1991) Beury v. State of Nevada
DONALD BEURY, ESQ., Appellant, v. THE STATE OF NEVADA, THE EIGHTH
JUDICIAL DISTRICT COURT, Respondent.
No. 21075
June 6, 1991 812 P.2d 774
Appeal from an order of the district court denying a motion for excess fees. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Attorney filed motion seeking fees in excess of statutory maximum for representing
prisoner on appeal of denial of petition for post-conviction relief. The district court denied
motion and awarded $2,500 in fees, and appeal was taken. The supreme court held that: {1)
prisoner was not aggrieved party and therefore lacked standing to bring appeal; {2) court
did not have appellate jurisdiction over appeal; and {3) denial of motion could be
reviewed by means of properly documented petition for extraordinary relief.
court held that: (1) prisoner was not aggrieved party and therefore lacked standing to bring
appeal; (2) court did not have appellate jurisdiction over appeal; and (3) denial of motion
could be reviewed by means of properly documented petition for extraordinary relief.
Dismissed.
Donald Beury, Carlsbad, California, for Appellant.
Karen Grant, Deputy District Attorney, Clark County, for Respondent.
Prisoner was not aggrieved party with standing to appeal from denial of attorney's motion seeking fees in excess of statutory
maximum for representing prisoner on appeal of denial of petition for post-conviction relief. NRS 7.125, subd. 4.
Statute providing that court appointing attorney may grant fees in excess of statutory maximum but only if court in which
representation was rendered certifies that amount of excess payment is both reasonable and necessary did not provide supreme court
with jurisdiction over appeal from denial of attorney's motion seeking fees in excess of statutory maximum for representing prisoner on
appeal of denial of petition for post-conviction relief, since supreme court did not appoint attorney. NRS 7.125, subd. 4(d).
Statute providing that court appointing attorney may grant fees in excess of statutory maximum but only if court in which
representation was rendered certifies that amount of excess payment is both reasonable and necessary does not confer appellate
jurisdiction in court in which representation was rendered to review on appeal the award of attorney fees. NRS 7.125, subd. 4(d).
Supreme court did not have inherent appellate jurisdiction over attorney's appeal from denial of motion seeking fees in excess of
statutory maximum for representing prisoner on appeal of denial of petition for post-conviction relief. NRS 7.125, subd. 4.
5. Courts.
Trial court's denial of attorney's motion seeking fees in excess of statutory maximum for representing prisoner on appeal of denial
of petition for post-conviction relief could be reviewed by supreme court by properly documented petition for extraordinary relief. NRS
7.125, subd. 4.
OPINION
Per Curiam:
On January 21, 1987, a jury found Wayne Edward Walters guilty of murder with use of a
deadly weapon.
guilty of murder with use of a deadly weapon. The Eighth Judicial District Court sentenced
Walters to serve two terms of life in the Nevada State Prison. Following sentencing, the
district court granted Walters' private attorney's motion to withdraw, and appointed the public
defender to represent Walters on appeal. Walters then brought a direct appeal, which was
dismissed by this court. Walters v. State, Docket No. 17190 (Order Dismissing Appeal,
March 24, 1987).
Walters subsequently filed a proper person petition for post-conviction relief. The district
court appointed Donald Beury to represent Walters. Following an evidentiary hearing, the
district court denied Walters' petition. Donald Beury was then appointed to represent Walters
on his appeal from the district court's denial of Walters' petition for post-conviction relief. On
appeal, this court concluded that the district court had erred in not granting Walter's petition
for post-conviction relief, and therefore reversed the district court's ruling and remanded the
case. Walters v. State, 106 Nev. 45, 786 P.2d 1202 (1990). This court subsequently granted
the state's petition for rehearing and recalled the remittitur. Walters v. State, Docket No.
20028 (Order, October 25, 1990).
On February 2, 1990, Beury filed a motion pursuant to NRS 7.125(4) seeking excess
attorney's fees for his representation of Walters. The district court denied Beury's motion for
excess fees and awarded him $2,500.00. This appeal followed.
Our preliminary review of the appeal revealed a potential jurisdictional defect.
Specifically, we noted that because Beury was not an aggrieved party, he appeared to lack
standing to pursue this appeal.
1
We therefore ordered Beury to show cause why this appeal
should not be dismissed for lack of jurisdiction.
In response to our order, Beury first explains that he initially brought this appeal in the
name of Walters, the defendant below, and claims that the Clark County Clerk substituted
Beury as the appellant. Beury then contends that Walters is an aggrieved party for the
purposes of this appeal, because the district court's denial of Beury's motion for excess fees
threatens Walters' sixth amendment right to counsel. Beury argues specifically that the district
court's order amounts to a declaration that under no circumstances would the court consider
granting fees in excess of $2,500.00, and that this will deter other attorneys from doing
necessary work on behalf of Walters. Beury also suggests that in light of the district court's
refusal to compensate him for his efforts on behalf of Walters, perhaps counsel should
abandon or reduce [his] efforts."
__________

1
NRS 177.015 begins with the language, The party aggrieved in a criminal action may appeal only as
follows . . . .
reduce [his] efforts. Beury concludes that Walters is aggrieved by the very prospect of being
abandoned in the middle of an appeal.
[Headnote 1]
We are unconvinced by Beury's attempt to demonstrate that Walters is an aggrieved party
in this appeal. First, Beury's claim that the district court's order will deter other attorneys from
representing Walters is based on a faulty premise. Contrary to Beury's claim, the district
court's order did not amount to a declaration that under no circumstances would it consider
granting fees in excess of $2,500.00. Rather, the district court held that NRS 7.125(2)(e)
applied, and that an appointed attorney should notify the court before doing work that would
entitle him to excess fees. Further, Beury's claim that the district court's order will affect his
future representation of Walters ignores reality. After the district court denied Beury's motion
for excess fees, Beury brought a motion to withdraw as counsel. The district court granted
Beury's motion and appointed other counsel.
[Headnotes 2, 3]
In addition to his contention that Walters is an aggrieved party, Beury also presents other
arguments as to why this court has jurisdiction over this appeal. Noting that all of the
representation at issue was rendered before this court, Beury contends that NRS 7.125(4)
expressly confers on this court jurisdiction over this appeal. We reject this contention. NRS
7.125(4)(d) provides in pertinent part that the court appointing an attorney may grant fees in
excess of the statutory maximum, but only if the court in which the representation was
rendered certifies that the amount of the excess payment is both reasonable and necessary. . .
. Nothing in this language confers appellate jurisdiction on the court in which the
representation was rendered to review on appeal the award of attorney's fees.
Beury also attempts to analogize his situation to an earlier case in which we ordered
appointed appellate counsel to return all fees and expenses received by his firm. See Cuzdey
v. State, 103 Nev. 575, 747 P.2d 233 (1987). Beury apparently fails to note, however, that this
court had jurisdiction in Cuzdey because it was a direct appeal from a judgment of conviction.
See NRS 177.015(3). The actions this court took in Cuzdey regarding attorney's fees derived
from that jurisdiction. In the instant case, there is no such underlying appeal.
[Headnote 4]
Finally, Beury makes the broad contention that [a]ppellate courts have inherent
jurisdiction to review claims for attorney's fees," citing Gilbert v. Superior Court, 169
Cal.App.3d 14S {Cal.Ct.App.
fees, citing Gilbert v. Superior Court, 169 Cal.App.3d 148 (Cal.Ct.App. 1985). Gilbert,
however, involved a petition for extraordinary relief brought by an attorney who had been
denied his contractual fees. It did not involve an appeal from a denial of attorney's fees
brought in the name of the defendant below. Further, the appellate court did not discuss its
jurisdiction over the petition. Thus Gilbert in no way supports Beury's contention that this
court has jurisdiction over the instant appeal.
In summary, we conclude that Walters is not an aggrieved party and therefore lacks
standing to bring this appeal. See NRS 177.015. Further, we reject the other bases for
jurisdiction suggested by Beury. Finally, we note that Beury himself was not a party to the
underlying criminal action. We recently held that an attorney who was not a party to the
underlying civil action had no right to appeal from an order imposing sanctions. See Albany
v. Arcata Associates, 106 Nev. 688, 799 P.2d 566 (1990). We find the instant case to be
analogous, and therefore hold that Beury has no right to appeal from the order denying excess
fees. We conclude, therefore, that this court lacks jurisdiction to consider this appeal.
[Headnote 5]
Because this court lacks appellate jurisdiction over this appeal, it appears that Beury may
have no legal remedy. Therefore, we note, as we did in Albany, that this court's discretionary
review of the district court's order . . . may be appropriately invoked by a properly
documented petition for extraordinary relief. Albany, 106 Nev. at 690 n.1, 799 P.2d at 568
n.1. Accordingly, we dismiss this appeal.
____________
107 Nev. 367, 367 (1991) K.J.B., Inc. v. Drakulich
K.J.B., INC. a Nevada Corporation, Appellant, v. PAUL DRAKULICH AND DIGESTI
AND PECK, Respondents.
No. 21544
June 6, 1991 811 P.2d 1305
Appeal from district court orders granting a motion to dismiss without prejudice and
awarding sanctions. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Action was brought for attorney malpractice. The district court dismissed without
prejudice and awarded sanctions. On appeal, the supreme court held that: (1) statute of
limitations does not commence to run against cause of action for attorney malpractice until
conclusion of underlying litigation wherein malpractice allegedly occurred, and {2)
premature filing was not sanctionable.
until conclusion of underlying litigation wherein malpractice allegedly occurred, and (2)
premature filing was not sanctionable.
Affirmed in part, reversed in part.
Douglas Norberg, Reno, for Appellant.
Daniel Wong, Reno, for Respondents.
1. Limitation of Actions.
Statute of limitations does not commence to run against cause of action for attorney malpractice until conclusion of underlying
litigation wherein malpractice allegedly occurred. NRS 11.207, subd. 1.
Premature filing of attorney malpractice action was not sanctionable; filing was warranted by ambiguities in existing law and was
founded upon reasonable belief that statute of limitations might preclude action if it were filed at later date. NRS 11.207, subd. 1;
NRCP 11.
OPINION
Per Curiam:
THE FACTS
In October 1978, appellant, K.J.B., Inc. (K.J.B.), acquired a leasehold interest in a building
located on West Fourth Street in Reno, Nevada. K.J.B.'s lease agreement provided for annual
rent increases, and the allowable rent under the lease had grown to $1,150.00 per month when
Emmett Kelly became K.J.B.'s new landlord on July 1, 1985. However, K.J.B. did not pay
increased rents allowed under the lease agreement pursuant to Kelly's request. Further, K.J.B.
was late in some rent payments and mistakenly paid the rent to Kelly's predecessor in interest
rather than to Kelly. Accordingly, Kelly commenced an unlawful detainer action in the
justice's court, and a hearing was scheduled for October 8, 1985.
Prior to this hearing, the unlawful detainer action was abandoned pursuant to negotiations
between the parties; thereafter, K.J.B. retained possession of the leasehold and made rent
payments of $1,500.00 per month to Kelly until November, 1986, when K.J.B. reasserted its
rights and obligations under the lease agreement and commenced rental payments of
$1,150.00 per month.
After receiving the lower rent payments, Kelly served a thirty-day notice to quit on K.J.B.
In December 1986, Kelly commenced an action in the district court asserting unlawful
detainer and professing damages based upon allegations of waste and failure to repair.1
Prior to the conclusion of this litigation, K.J.B. and its counsel, Douglas Norberg, filed a
cause of action in the district court, asserting that the respondents, Paul Drakulich and
the law firm of Digesti and Peck, had committed attorney malpractice in the underlying
unlawful detainer action.
and professing damages based upon allegations of waste and failure to repair.
1
Prior to the
conclusion of this litigation, K.J.B. and its counsel, Douglas Norberg, filed a cause of action
in the district court, asserting that the respondents, Paul Drakulich and the law firm of Digesti
and Peck, had committed attorney malpractice in the underlying unlawful detainer action.
Paul Drakulich and the law firm of Digesti and Peck filed a motion to dismiss the attorney
malpractice cause of action, arguing it was premature until the conclusion of the unlawful
detainer lawsuit. The district court granted the motion to dismiss and awarded respondents
$1,500.00 in attorney's fees for successfully defending the motion. These attorney's fees were
assessed against appellant's counsel, Douglas Norberg, because the district court felt Norberg
persisted in asserting arguments in opposition to the motion to dismiss that Norberg knew, or
should have known, were meritless. This appeal followed.
PROFESSIONAL NEGLIGENCE CAUSE OF ACTION
[Headnote 1]
Where there has been no final adjudication of the client's case in which the malpractice
allegedly occurred, the element of injury or damage remains speculative and remote, thereby
making premature the cause of action for professional negligence. Semenza v. Nevada Med.
Liability Ins. Co., 104 Nev. 666, 668, 765 P.2d 184, 186 (1988) (quoting Amfac Distribution
Corp. v. Miller, 673 P.2d 795, 796 (Ariz.App. 1983)). Nonetheless, K.J.B. and Douglas
Norberg argue they had no alternative but to file their cause of action for attorney malpractice
since the statute of limitations could be construed to run against the cause of action prior to
the conclusion of the underlying unlawful detainer action in which the malpractice occurred.
Semenza did not specifically determine whether the statute of limitations would be tolled
against a cause of action for attorney malpractice pending the outcome of the underlying
lawsuit in which the malpractice allegedly occurred. Therefore, we will resolve this issue
here.
Pursuant to NRS 11.207(1), the statute of limitations will not commence to run against
an attorney malpractice cause of action until the claimant sustains damages.2 In
Semenza, we held that damages for attorney malpractice are premature an speculative
until the conclusion of the underlying lawsuit in which the professional negligence
allegedly occurred.
__________

1
Appellant answered and, as an affirmative defense, argued the district court lacked subject matter
jurisdiction over the unlawful detainer portion of the complaint. The district court rejected appellant's
jurisdictional challenge, granted a temporary writ of restitution to Kelly pending trial, and ordered appellant to
vacate the real property.
On appeal, this court concluded the district court was without jurisdiction to entertain the unlawful detainer
portion of the complaint and issued a writ of prohibition against the district court. See K.J.B. Inc. v. District
Court, 103 Nev. 473, 745 P.2d 700 (1987).
commence to run against an attorney malpractice cause of action until the claimant sustains
damages.
2
In Semenza, we held that damages for attorney malpractice are premature an
speculative until the conclusion of the underlying lawsuit in which the professional
negligence allegedly occurred. Semenza, 104 Nev. at 668, 765 P.2d at 186. Synthesizing these
rules, we now hold that the statute of limitations in NRS 11.207(1) does not commence to run
against a cause of action for attorney malpractice until the conclusion of the underlying
litigation wherein the malpractice allegedly occurred. The district court came to a similar
conclusion when it dismissed, without prejudice, K.J.B.'s cause of action for attorney
malpractice on the grounds that the action was premature. We affirm the dismissal.
SANCTIONS
[Headnote 2]
When an attorney signs a pleading, he certifies that it is based upon fact and is warranted
by existing law or a good faith argument. See NRCP 11. If a pleading, motion, or other paper
is signed in violation of this rule, the court, upon motion . . . shall impose upon the person
who signed it, . . . an appropriate sanction, which may include an order to pay to the other
party or parties the amount of the reasonable expenses incurred . . . including a reasonable
attorney fee. Id. In a supplemental order dated September 17, 1990, the district court judge
concluded that the attorney malpractice cause of action filed by Douglas Norberg was not
filed and pursued in good faith in light of the Semenza ruling. Therefore, the court ordered
Douglas Norberg to pay $1,500.00 in attorney's fees to opposing counsel. We believe this
sanction is inappropriate.
Douglas Norberg's decision to file the attorney malpractice cause of action prior to the
conclusion of the underlying unlawful detainer lawsuit was warranted by ambiguities in the
existing law and was founded upon a reasonable belief that the statute of limitations might
preclude the action if it were filed at a later date. We cannot fault appellant's counsel for
zealously protecting his client's interests. Thus, while we affirm the district court's decision to
dismiss the attorney malpractice cause of action without prejudice, we reverse the district
court sanctions levied against appellant's counsel.
__________

2
1. No action against any accountant, attorney or veterinarian to recover damages for malpractice,
whether based on a breach of duty or contract, may be commenced more than 4 years after the plaintiff
sustains damage and discovers or through the use of reasonable diligence should have discovered the
material facts which constitute the cause of action.
(Emphasis added.)
decision to dismiss the attorney malpractice cause of action without prejudice, we reverse the
district court sanctions levied against appellant's counsel.
__________
107 Nev. 371, 371 (1991) Wischmeier v. State
EARL ELDEN WISCHMEIER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21415
June 6, 1991 811 P.2d 1307
This is an appeal from a judgment of conviction, pursuant to a guilty plea to trafficking in
a controlled substance. Eighth Judicial District Court, Clark County; John S. McGroarty,
Judge.
Defendant was convicted in the district court of trafficking in cocaine, and he appealed.
The supreme court held that fifty thousand dollar fine imposed upon defendant, in accordance
with minimum statutory requirements, was not unconstitutionally excessive.
Affirmed.
Momot & Tidwell, Las Vegas, for Appellant.
James Tufteland and Thomas Leen, Deputy District Attorneys, Clark County, for Respondent.
Drugs and Narcotics.
Fifty thousand dollar fine imposed upon drug defendant, in accordance with minimum statutory requirements, was not
unconstitutionally excessive. U.S.C.A.Const. amend. 8; Const. art. 1, 6; NRS 453.3385, subd. 1.
OPINION
Per Curiam:
On February 16, 1990, Appellant Earl Elden Wischmeier (Wischmeier) was arrested for
selling $300 worth of cocaine to an undercover police officer. The district court sentenced
him to three years in the Nevada State Prison and fined him $50,000 in accordance with the
minimum statutory requirements set forth in NRS 453.3385(1).
1
Wischmeier contends that
$50,000 constitutes an excessive fine in violation of both the Nevada and the United
States Constitution.
__________

1
NRS 453.3385(1) provides that any person who knowingly or intentionally sells or possesses any
controlled substance listed in schedule I shall be
107 Nev. 371, 372 (1991) Wischmeier v. State
Wischmeier contends that $50,000 constitutes an excessive fine in violation of both the
Nevada and the United States Constitution. We conclude that the district court properly
imposed the minimum fine and that such fine is not in violation of Wischmeier's
constitutional rights. See United States v. Torres, 901 F.2d 205, 247 (2d Cir. 1990).
Accordingly, we
AFFIRM the district court.
____________
107 Nev. 372, 372 (1991) Stamps v. State
ROBERT LEON STAMPS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21091
June 6, 1991 812 P.2d 351
Appeal from judgment of conviction, pursuant to jury trial, of one count of lewdness with
a minor and three counts of sexual assault on a child under the age of fourteen years. Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
Following jury trial before the district court, defendant was convicted of lewdness with
minor and three counts of sexual assault on child under age of fourteen years. Defendant
appealed. The supreme court held that: (1) failure to allow defendant to cross-examine
juvenile protective services worker on basis of earlier statements made in confidential
juvenile report, which tended to support defendant's theory that charges had been instigated
by his estranged wife in effort to obtain sole custody of their child, was error, and (2) under
circumstances of case, error was prejudicial.
George E. Graziadei and Scott Michael Cantor, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, Thomas J. Moreo, Deputy District Attorney, Clark
1. Criminal Law; Witnesses.
In child sex abuse prosecution failure to allow defendant to crossexamine juvenile protective services officer based
on statement in confidential juvenile court dispositional report that she had filed earlier was error where
defendant sought to use report in attempt to show that his estranged wife's desire to obtain sole custody of
child was basis for claims of child abuse; State's goal in preserving confidentiality of juvenile proceedings
was fairly weak, since entire incident concerning child was made public by trial, and interest claimed by
defendant clearly involved actual cross-examination and confrontation of witness.
__________
punished, if the quantity involved is 4 grams or more, but less than 14 grams, 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 $50,000.
examine juvenile protective services officer based on statement in confidential juvenile court dispositional report that she had filed
earlier was error where defendant sought to use report in attempt to show that his estranged wife's desire to obtain sole custody of child
was basis for claims of child abuse; State's goal in preserving confidentiality of juvenile proceedings was fairly weak, since entire
incident concerning child was made public by trial, and interest claimed by defendant clearly involved actual cross-examination and
confrontation of witness. U.S.C.A.Const. amend. 6.
2. Criminal Law.
Disallowing defendant's attempt to use confidential juvenile court disposition report in cross-examination of child protective
services worker in his prosecution for child sex abuse was prejudicial error where case was close, as evidenced by child's frequent
changing of stories and circumstantial evidence that estranged wife of defendant had instigated entire incident; defendant's theory of
defense, that his wife had instigated charges to obtain sole custody of child, would have been made more plausible had he been allowed
to confront juvenile officer with her earlier assessment of child abuse allegations.
OPINION
Per Curiam:
This is a child sex-abuse case. In the spring of 1988, the child's mother, Jan Stamps,
Robert Stamps' estranged wife, claims that while she was having a talk with her daughter
about good touching and bad touching, the child, Shana, stated that daddy put his finger
in me. According to Jan, Shana stated that the incident had happened while her father was
giving her a bath around three years before (when Shana was three years old). This
conversation prompted Jan to take Shana to a variety of counselors and child abuse
investigators.
Shana told a number of assorted stories to these people. When first interviewed, Shana
stated that she had been assaulted by her half-brother, Paul. She later recanted this story.
Shana next told the therapists that her father had stuck a spoon up her butt, and that her
father had had sexual intercourse with her; Shana later admitted that these stories were also
lies. During trial, Shana stated that none of the stories that she had told the police about this
case was true, that she had lied under oath before, and that the oath didn't really mean that
much.
Despite the fact that Shana's stories changed often, both the counselors and the police
became convinced that Shana's father had been sexually engaged with Shana. The State took
the position that Shana was being truthful about the following allegations: (1) that her father
had licked her breasts; (2) that her father had fondled her breasts; (3) that her father had
inserted his finger into her vagina on four separate occasions; and {4) that her father had
placed his penis into her mouth.
her vagina on four separate occasions; and (4) that her father had placed his penis into her
mouth. These allegations formed the basis of the seven criminal counts with which Robert
was charged.
At trial, Shana admitted that she had lied in the past but testified that the
above-enumerated acts had actually occurred. There was other testimony at trial that Shana
had been engaged in sexual activity with someone. Shana's mother and grandmother testified
as to Shana's telling them of sexual events that incriminated her father and as to Shana's
behavior before and after the alleged events occurred. Robert Stamps, Shana's father, took the
witness stand and denied any sexual activity with his own daughter.
The jury returned guilty verdicts on four of seven counts. More specifically, the jury found
that: (1) Robert had licked Shana's breasts (lewdness with a minor); (2) Robert had twice
inserted his finger into Shana's vagina (two counts of sexual assault with a minor); and (3)
Robert had placed his penis into Shana's mouth (one count of sexual assault with a minor).
Following the judgment of conviction, Robert was sentenced to ten years in the Nevada State
Prison on the lewdness conviction and to one life term on each of the three sexual assault
convictions, the sentences to run consecutively. This appeal followed.
[Headnote 1]
One of Robert's defenses at trial was that his estranged wife Jan was behind the sex-abuse
charges made by his daughter and that in doing so Jan was motivated by a desire to obtain
sole custody of Shana. To support this argument, Robert's counsel started to read material
from a juvenile court dispositional report that related to this issue. Counsel, referring to the
report, asked juvenile protective service officer Vicki Shaver (the author of the report) if it
was fair to say that Jan [Stamps] ha[d] taken a sensitive situation like this and tried to further
her own goals of alienating Shana from her father. Before defense counsel could pursue the
matter further the prosecuting attorney objected to further reference to the juvenile report on
the ground that it was confidential.
1
A conference was then held off the record, after which,
the State's objection on the ground of confidentiality was sustained.
2
The juvenile report in
question contains statements that would have been quite helpful, if not critical, to
Robert's defense.
__________

1
The contents of juvenile proceedings are made confidential under NRS 62.360.

2
At oral argument, Deputy District Attorney Thomas Moreo made certain representations to this court
relative to mentioned off-the-record, side-bar statements made by the district court and counsel. In fact, Moreo
advised this court that the trial court did not rule on the admissibility of the report but merely instructed defense
counsel not to read from the dispositional report. It
The juvenile report in question contains statements that would have been quite helpful, if
not critical, to Robert's defense. First, in discussing the history of this case, Ms. Shaver wrote
on page six, line twenty-one, that:
Both parents have accused the other of deviant sexual practice and/or fantasies. Mrs.
Stamps accused Mr. Stamps of engaging in sexual activity with a neighbor child of
Shana's age. This was investigated by Nevada State Welfare and found to be untrue.
The family was subsequently interviewed by Mariana van Hyning of the Child Custody
Division, who also felt the allegations were untrue.
The other statement relevant to this discussion begins at page eight, line twenty-seven, of the
report and continues through page nine, line three. Here, Ms. Shaver states that [i]t is this
probation officer's opinion that [Jan Stamps] has used this sensitive situation to further her
own goals of alienating the child from her father.
Appellant now claims that the district court erred when it excluded this clearly probative
evidence on the ground of the dispositional report's confidentiality. More specifically, Robert
argues that he should have been allowed to utilize this report in his cross-examination of Ms.
Shaver, and the failure of the district court to allow him to do so violated his rights under the
confrontation clause of the sixth amendment. We now turn to this question.
Our analysis on this issue is controlled by Davis v. Alaska, 415 U.S. 308 (1974). In Davis,
the United States Supreme Court was presented with a conflict between a state's interest in
protecting the confidentiality of juvenile proceedings and the right of a criminal defendant to
confront witnesses that are testifying against him. In Davis, a prosecution witness had been
adjudicated a juvenile delinquent and was on probation at the time he was to testify. Id. at
310-11.
__________
seems rather clear, however, that Mr. Moreo's objection went beyond defense counsel's mere reading of the
report and that his objection went to the whole document on the ground of the document's being confidential.
Mr. Moreo also advised this court during oral argument that there was nothing in the report that was helpful
to the defendant or harmful to the prosecution. At the time Mr. Moreo made his statements to this court, we had
no way of verifying their accuracy, since appellant's counsel was not trial counsel, and the juvenile report was
not part of the record. Accordingly, we allowed appellant to supplement the record with a copy of the juvenile
report. See NRAP 28(e). Our review of this dispositional report indicates that Mr. Moreo was less than candid in
his representations at oral argument. As stated in the text, the report in question is clearly helpful to the defense
and therefore harmful to the prosecution, contrary to the representations made by Mr. Moreo to this court at oral
argument.
was to testify. Id. at 310-11. On cross-examination, defendant sought to inquire as to whether
the witness' probation status might lead the witness to be biased in favor of the state. Id. at
311.
The trial court had ruled that because of Alaska's policy in preserving the confidentiality of
juvenile proceedings, such cross-examination was not allowed. Id. The United States
Supreme Court reversed, however, holding that the state's interest in protecting the
confidentiality of juvenile proceedings must yield to the right of a criminal defendant to
confront witnesses that are testifying against him. Id. at 319.
We applied the Davis doctrine in Pickard v. State, 94 Nev. 681, 585 P.2d 1342 (1978). In
Pickard, we stated that, under Davis, a state's policy interest in protecting the confidentiality
of a juvenile offender's records, must yield to the right of effective cross-examination to test
the credibility of a witness under the Sixth Amendment of the federal constitution. Pickard,
94 Nev. at 683, 585 P.2d at 1343. Accordingly, we held that it was error to deny defendant's
request to examine the juvenile records of the principle prosecution witness. Id. We further
held that such error was harmless, however, because defendant had been allowed to
cross-examine the witnesses extensively concerning their relationship with the prosecution
and the possibility of an immunity grant. Id. at 683-84, 585 P.2d at 1343.
An application of the above principles to the instant case makes it clear that the trial court
erred in ruling that, because of Nevada's policy in preserving the confidentiality of juvenile
records, Robert could not cross-examine Ms. Shaver as to her statements in the prior juvenile
proceeding. To begin, we note that this case provides a much more compelling scenario than
either Davis or Pickard. In Davis, the trial court's prohibition of the use of the witness'
juvenile delinquency adjudication would, in fact, have served to keep the adjudication
confidential. In this case, however, it is unclear as to the goals that were served by excluding
Ms. Shaver's testimony, since the entire incident concerning Shana was made public by the
trial.
In Pickard, as well, the question was much closer than in the instant case. In Pickard, we
held that the State's interest in confidentiality was outweighed by defendant's right to
discovery, an interest that is only tangentially related to a defendant's right to confrontation.
Conversely, this case involves actual cross-examinationthe primary interest secured by
the confrontation clause. Davis, 415 U.S. at 308. Accordingly, because the State's goal in
preserving confidentiality is fairly weak in this case, and because the interest claimed by the
defendant involves actual cross-examination, the trial court clearly erred by disallowing
appellant's proposed line of questioning.
actual cross-examination, the trial court clearly erred by disallowing appellant's proposed line
of questioning.
[Headnote 2]
The more difficult issue is whether such error was harmless. The United States Supreme
Court recently set out the standard for determining harmless error in confrontation clause
cases in Delaware v. Van Arsdall, 475 U.S. 673 (1986). In Van Arsdall, the Court stated that
[t]he correct inquiry is whether, assuming that the damaging potential of the
cross-examination were fully realized, a reviewing court might nonetheless say that the error
was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684.
The Van Arsdall Court went on to hold that several factors were relevant in performing
such an inquiry. These included: (1) the overall strength of the prosecution's case; (2) whether
the desired testimony is cumulative; (3) the importance of the witness' testimony to the
prosecutor; and (4) the presence or absence of corroboration of the witness' testimony. Id.
Because the state appellate court in Van Arsdall had held that the error committed by the trial
court required per se reversal, the United States Supreme Court remanded the case to the state
court in order to make a harmless error determination. Id.
Our review of the record convinces us that, under the Van Arsdall standard, the trial court's
error was prejudicial. To begin, this was a very close case. Shana, the prosecution's main
witness, changed her stories often, falsely accused her half-brother of sexual assault, and
admitted that the oath didn't really mean that much. In addition, several pieces of
circumstantial evidence, besides Ms. Shaver's prior statements, corroborate the defense theory
that Jan Stamps had instigated the entire incident. For example, the accusations began several
years after the alleged incidents of sexual abuse, but only a short time after Shana's parents
separated and Jan filed for divorce. Also, several of the terms used by Shana in describing
bodily parts were very advanced for a child of seven years of age.
This circumstantial evidence, by itself, was not enough to create a reasonable doubt in the
jury's mind that Robert had committed sexual assault. Had appellant been allowed to confront
Ms. Shaver with her earlier assessment of the child abuse allegations in this case and with the
fact that Jan Stamps had made similar allegations in the past, Robert's theory of defense
would have been made more plausible, especially assuming that the damaging potential of
such testimony were fully realized. Finally, Robert was not able to cross-examine any of the
other State witnesses on this point; thus, the testimony was not cumulative.
Because such important testimony was excluded in this close case, it cannot be said that the
trial court's error was harmless beyond a reasonable doubt; therefore, reversal is mandated
under Van Arsdall.
For the above reasons, we reverse appellant's conviction, and remand this case for a new
trial.
3

____________
107 Nev. 378, 378 (1991) Schwartz v. Schwartz
LAURA SCHWARTZ, Appellant v. CHRISTOPHER SCHWARTZ, Respondent.
No. 21010
June 6, 1991 812 P.2d 1268
Appeal from a judgment and decree of divorce. Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Custodial father filed motion in divorce proceeding to permit him to move with children
from Nevada to Pennsylvania, where his mother and family were located. The district court
granted father's motion and incorporated that ruling into divorce decree. Mother appealed.
The supreme court held that: (1) in determining whether removal of child from state where
child lives should be permitted, court must first find whether custodial parent has
demonstrated that actual advantage will be realized by both children and custodial parent in
moving to location so far removed from current residence that weekly visitation by
noncustodial parent will be virtually precluded; (2) if custodial parent satisfies threshold
requirement for justifying removal of child from state, court must then weigh additional
factors and their impact on all members of family; and (3) authorizing move was not abuse of
discretion.
Affirmed.
Cherry & Bailus, Las Vegas, for Appellant.
Joseph W. Houston, II, Las Vegas, for Respondent.
Overall purpose of statute restricting removal of child from state by custodial parent or parent having joint custody is to preserve
rights and familial relationship of the other parent with respect to child. NRS 125A.350.
2. Infants.
In custody matters, polestar for judicial decision is best interests of child. NRS 125.480.
__________

3
We have reviewed appellant's remaining contentions, and have determined that these arguments are without
merit.
3. Infants.
In determining whether to permit removal of child from jurisdiction where child lives, best interest of child should be paramount
judicial concern. NRS 125A.350.
4. Infants.
Determination of best interests of child in whether to permit removal of child from jurisdiction where child lives necessarily
involves fact-specific inquiry and cannot be reduced to rigid bright-line test. NRS 125A.350.
In determining whether removal of child from state where child lives should be permitted, court must first find whether custodial
parent has demonstrated that actual advantage will be realized by both children and custodial parent in moving to location so far
removed from current residence that weekly visitation by noncustodial parent will be virtually precluded. NRS 125A.350.
If custodial parent satisfies threshold requirement for justifying removal of child from state, court must then weight additional
factors and their impact on all members of family, including extent to which compelling interests of each member of family are
accommodated, considering extent to which move is likely to improve quality of life for children and custodial parent, whether
custodial parent's motives are honorable, whether custodial parent will comply with any substitute visitation orders issued by court,
whether noncustodian's motives are honorable in resisting motion for permission to remove, and whether if removal is allowed there
will be realistic opportunity for noncustodial parent to maintain visitation schedule that will foster and preserve parental relationship.
NRS 125A.350.
In determining whether, and extent to which, proposed move from state will likely improve quality of life for children and
custodial parent, court may require evidence concerning such matters as whether positive family care and support will be enhanced,
whether housing and environmental living conditions will be improved, whether educational advantages for children will result,
whether custodial parent's employment and income will improve, whether special needs of child will be better served, and whether, in
child's opinion, circumstances and relationships will be improved. NRS 125A.350.
In determining whether to permit removal of child from state, court may conclude that professional opinion or evaluation by
psychiatrist or psychologist will be desirable in assessing impact of move on child. NRS 125A.350.
9. Divorce.
Granting custodial father's motion in divorce proceeding to move from Nevada to Pennsylvania, where father's mother and family
were located, was not abuse of discretion; father would be spared child care expenses and would be able to live with his mother
rent-free, conclusion that children would be more appropriately cared for by their grandmother than by paid babysitters was reasonable,
and expanded visitation period during summer could serve as effective substitute for weekend visits with mother. NRS 125A.350.
10. Divorce.
Fact that custodial father had not found employment at time he proposed to move from Nevada to Pennsylvania,
where his mother and family were located, did not establish abuse of discretion in permitting removal of
children from Nevada pursuant to father's motion in divorce proceeding, where father had formal skills to
obtain employment and had never failed to support his family.
proposed to move from Nevada to Pennsylvania, where his mother and family were located, did not establish abuse of discretion in
permitting removal of children from Nevada pursuant to father's motion in divorce proceeding, where father had formal skills to obtain
employment and had never failed to support his family. NRS 125A.350.
Reduction in visitation privileges of noncustodial parent is not necessarily determinative of whether custodial parent should be
permitted to move children from state. NRS 125A.350.
12. Divorce.
In determining whether to permit custodial father to move with children from Nevada to Pennsylvania, pursuant to his motion in
divorce proceedings, judge was appropriately concerned about ability of noncustodial mother who had fairly recent history of mental
illness to provide full-time care for her children during periods of illness and about whether mother could currently absorb additional
emotional, logistical, and financial stress of being single parent for any extended length of time. NRS 125A.350.
13. Divorce.
Award of attorney fees in divorce proceedings lies within sound discretion of trial judge.
14. Divorce.
Denying mother's request for award of attorney fees incurred in divorce proceedings was not abuse of discretion, where mother
was in part responsible for attorney fees she incurred due to her false accusations of child abuse and her failure to comply with child
support orders.
OPINION
Per Curiam:
Appellant Laura Schwartz appeals the granting of respondent Christopher Schwartz'
motion in a divorce proceeding to allow the custodial father to move with the couple's two
small children to Pottsville, Pennsylvania, where Christopher's mother and family are located.
After a two-day trial, the district court granted Christopher's motion and incorporated its
ruling into the final divorce decree.
Facts
Laura and Christopher were married on November 20, 1981. In 1988, serious marital
problems developed between the couple. As a result, Laura was twice hospitalized for
depression; she also attempted suicide with an overdose of anti-depressants. Christopher filed
for divorce in November of 1988. At that time, he was awarded primary custody of their
children, Debra and William (Billy).
Prior to the time Christopher filed for divorce, Laura remained in the couple's Las Vegas
home, caring for the two children. Christopher had been employed for three years as a casino
floorman where he earned an annual salary of $35,000.
floorman where he earned an annual salary of $35,000. After the divorce, it appears that
Laura worked as a cocktail waitress where she earned a minimum wage plus tips.
On three separate occasions during the course of custody proceedings, Laura accused
Christopher or, equivocatingly, the husband of a babysitter, of sexually abusing Billy. As a
result, Billy was placed in protective custody and numerous interviews by therapists and
physicians followed. On the third round of accusations, state officials ordered lie detector
tests. The parties stipulated that the test results could be used in court. Christopher's test
showed no deception.
1
The polygraph examiner's evaluation of Laura's test indicated
deception. The juvenile court subsequently found that Laura had lied in her reports of child
abuse. As a result of these false allegations, the domestic relations referee recommended that
Laura have supervised visitation rights.
In support of his motion for authorization to remove the children from this jurisdiction,
Christopher stated that his mother owns a four-bedroom house in Pennsylvania which would
accommodate a bedroom for each child. The grandmother, who is seventy-three years old, has
an established relationship with the children. Christopher also testified that his mother is one
of eleven children and that there would be an extended family of aunts and uncles within
driving or walking distance in the event of a family emergency. In addition, Christopher is an
only child and expects to some day inherit his mother's home.
Legal Discussion
[Headnote 1]
In this appeal, we are asked in a case of first impression to interpret NRS 125A.350,
Nevada's anti-removal statute.
2
The overall purpose of such a statute is to preserve the
rights and familial relationship of the noncustodial parent with respect to his or her child.
__________

1
It also appears from a review of the record that the babysitter's husband voluntarily took and passed a
polygraph examination.

2
NRS 125A.350, a new section added to the Nevada Revised Statutes in 1987, states:
If custody has been established and the custodial parent or a parent having joint custody intends to
move his residence to a place outside of this state and to take the child with him, he must, as soon as
possible and before the planned move, attempt to obtain the written consent of the other parent to move
the child from the state. If the noncustodial parent or other parent having joint custody refuses to give that
consent, the parent planning the move shall, before he leaves the state with the child, petition the court for
permission to move the child. The failure of a parent to comply with the provisions of this section may be
considered as a factor if a change of custody is requested by the noncustodial parent or other parent
having joint custody.
overall purpose of such a statute is to preserve the rights and familial relationship of the
noncustodial parent with respect to his or her child. See Holder v. Polanski, 544 A.2d 852,
855 (N.J. 1988) (citations omitted). As one court has stated, it is in the best interests of a
child to have a healthy and close relationship with both parents, as well as other family
members.' In re Marriage of Kutinac, 538 N.E.2d 862, 865 (Ill.App.Ct. 1989) (citing In re
Marriage of Eckert, 518 N.E.2d 1041, 1045 (Ill. 1988)). The proper calculus involves a
balancing between the custodial parent's interest in freedom of movement as qualified by his
or her custodial obligation, the State's interest in protecting the best interests of the child, and
the competing interests of the noncustodial parent. Holder, 544 A.2d at 855.
[Headnotes 2-4]
Removal of minor children from Nevada by the custodial parent is a separate and distinct
issue from the custody of the children. However, some of the same factual and policy
considerations may overlap. In custody matters, the polestar for judicial decision is the best
interests of the child. See NRS 125.480. In removing a child from the jurisdiction where the
child currently lives, the best interests of the child should also be the paramount judicial
concern. See In re Marriage of Kutinac, 538 N.E.2d 862, 865 (Ill.App.Ct. 1989); Ducheneaux
v. Ducheneaux, 427 N.W.2d 122, 123 (S.D. 1988); D'Onofrio v. D'Onofrio, 365 A.2d 27, 29
(N.J.Super.Ct.Ch.Div. 1976). Determination of the best interests of a child in the removal
context necessarily involves a fact-specific inquiry and cannot be reduced to a rigid
bright-line test. See In re Marriage of Eckert, 518 N.E.2d 1041, 1045 (Ill. 1988) (citations
omitted); Cooper v. Cooper, 491 A.2d 606, 614-15 (N.J. 1984).
[Headnote 5]
Although this court has never established guidelines for the removal of children from this
state, we are persuaded that the criteria adopted by D'Onofrio v. D'Onofrio, 365 A.2d 27, 30
(N.J.Super.Ct.Ch.Div. 1976), one of the leading cases in this area, is sound. Therefore, in
determining the issue of removal, the court must first find whether the custodial parent has
demonstrated that an actual advantage will be realized by both the children and the custodial
parent in moving to a location so far removed from the current residence that weekly
visitation by the noncustodial parent is virtually precluded.
[Headnote 6]
If the custodial parent satisfies the threshold requirement set forth above, then the court
must weigh the following additional factors and their impact on all members of the family,
including the extent to which the compelling interests of each member of the family are
accommodated: {1) the extent to which the move is likely to improve the quality of life for
both the children and the custodial parent; {2) whether the custodial parent's motives are
honorable, and not designed to frustrate or defeat visitation rights accorded to the
noncustodial parent; {3) whether, if permission to remove is granted, the custodial parent
will comply with any substitute visitation orders issued by the court; {4) whether the
noncustodian's motives are honorable in resisting the motion for permission to remove, or
to what extent, if any, the opposition is intended to secure a financial advantage in the
form of ongoing support obligations or otherwise; {5) whether, if removal is allowed,
there will be a realistic opportunity for the noncustodial parent to maintain a visitation
schedule that will adequately foster and preserve the parental relationship with the
noncustodial parent.
factors and their impact on all members of the family, including the extent to which the
compelling interests of each member of the family are accommodated: (1) the extent to which
the move is likely to improve the quality of life for both the children and the custodial parent;
(2) whether the custodial parent's motives are honorable, and not designed to frustrate or
defeat visitation rights accorded to the noncustodial parent; (3) whether, if permission to
remove is granted, the custodial parent will comply with any substitute visitation orders
issued by the court; (4) whether the noncustodian's motives are honorable in resisting the
motion for permission to remove, or to what extent, if any, the opposition is intended to
secure a financial advantage in the form of ongoing support obligations or otherwise; (5)
whether, if removal is allowed, there will be a realistic opportunity for the noncustodial
parent to maintain a visitation schedule that will adequately foster and preserve the parental
relationship with the noncustodial parent.
[Headnotes 7, 8]
In weighing and balancing the above factors, the court will, of course, have to consider any
number of sub-factors that may assist the court in reaching an appropriate decision. For
example, in determining whether, and the extent to which the move will likely improve the
quality of life for the children and the custodial parent, the court may require evidence
concerning such matters as: (1) whether positive family care and support, including that of the
extended family, will be enhanced; (2) whether housing and environmental living conditions
will be improved; (3) whether educational advantages for the children will result; (4) whether
the custodial parent's employment and income will improve; (5) whether special needs of a
child, medical or otherwise, will be better served; and (6) whether, in the child's opinion,
circumstances and relationships will be improved. The foregoing list is by no means
exhaustive, and is only illustrative of the many sub-factors that the court may, in the exercise
of good common sense, feel the need to pursue prior to ruling on the issue of removal. In
certain instances, the court may even conclude that a professional opinion or evaluation by a
psychiatrist or psychologist will be desirable in assessing the impact of the move on a child.
Finally, as stated in D'Onofrio, [t]he court should not insist that the advantages of the
move be sacrificed and the opportunity for a better and more comfortable life style for the
mother [custodial parent] and children be forfeited solely to maintain weekly visitation by the
father [noncustodial parent] where reasonable alternative visitation is available and where the
advantages of the move are substantial. D'Onofrio, 365 A.2d at 30.
[Headnote 9]
In the course of the proceedings below, the district court in effect carefully sought to apply
the D'Onofrio guidelines we have adopted for this jurisdiction. As a result, the court found
that the children would benefit from a large and helpful extended family. D'Onofrio, 365
A.2d at 32. In addition, the father would be spared approximately $440 in child care expenses
which could be used to benefit the children more directly. Christopher also stated that he and
the children would be able to live with his mother rent-free, thereby increasing the amount of
funds available for the children's needs.
3

The judge rightly determined that it was in the best interests of the children not to be
shuttled back and forth between paid babysitters with little family life until after 5:00 P.M. A
review of the record reveals that the children were sometimes out of their home and in day
care for up to ten hours a day. The district judge could reasonably conclude that the children
would be more appropriately cared for by their grandmother.
4
The court did not find that the
removal was motivated to defeat or frustrate visitation. Moreover, the court noted that it
would continue to have jurisdiction and the power to enter future orders adjusting visitation.
[Headnote 10]
Laura contends that the district court abused its discretion in allowing removal because
Christopher had not found employment at the time of the move. We do not view this factor as
determinative. The record reveals that Christopher had the formal skills to obtain employment
and that he had never failed to support his family. Although at the time of the ruling
Christopher had no definite employment in Pennsylvania, he held a college degree and had
received previous training both as a stockbroker and as a real estate agent.
[Headnote 11]
The district court determined that the preservation of the relationship with the
noncustodial parent could be addressed appropriately by extended summer visitation instead
of weekend visits. A reduction in visitation privileges is not necessarily determinative.
__________

3
Both Laura and Christopher filed a Chapter 13 bankruptcy petition in 1987 before their separation.
Christopher has assumed the payments on their five-year bankruptcy plan.

4
Laura argues that the grandmother's age weighs against the best interests of the children. However, there is
no evidence in the record suggesting that the grandmother is in ill health or suffers from a disabling condition. In
any event, the grandmother was not viewed by the court as the custodial parent but rather as her son's helpmate
in caring for the children.
tive. See In the Matter of Ehlen, 303 N.W.2d 808, 810 (S.D. 1981).
The visitation obstacles incident to distance and expense and their impact on Laura's
continued relationship with her children were appropriately identified by the court as the most
difficult and serious area of concern. However, as the court concluded, an expanded visitation
period during the summer may serve as an effective substitute for weekend visits that can
provide a realistic opportunity to nurture and renew the mother-child bond.
5
The court
therefore ordered that Laura have the children for one month during summer vacations and
that travel expenses be shared between Laura and Christopher in order to facilitate the
summer visitation schedule. An uninterrupted sequence of time may prove more effective in
bonding the relationship between the mother and her children than the weekend visits, at least
under current circumstances.
Moreover, we do not agree that the district court abused its discretion by granting the
removal motion and concomitantly ordering another psychological evaluation of Laura in
order to determine whether visitation should be supervised. The court had the benefit of a
twenty-three page child custody investigation report in making its decision. Substantial
evidence supports the district court's order.
[Headnote 12]
Additionally, although the court found that Laura sincerely loved her children, the court
also found that the mother had an unfortunate, fairly recent history of mental illness which
manifested itself during the initial separation. The judge was appropriately concerned about
Laura's ability, during periods of illness, to provide full time care for her children. The judge
was rightly concerned as to whether the mother could presently absorb the additional
emotional, logistical and financial stress of being a single parent for any extended length of
time. Sufficient evidence in the record, coupled with demeanor evidence considered by the
court in the form of Laura's testimony and comportment in court, and her failure to comply
with previous court orders, support the court's decision.
6
In addition, the district court judge
was understandably and justifiably disturbed by the evidence indicating that Laura would
coach her three year old son into making false allegations of child abuse.
__________

5
Reasonable and realistic visitation has been defined as one that will provide an adequate basis for
preserving and fostering a child's relationship with the noncustodial parent if the removal is allowed. Cooper v.
Cooper, 491 A.2d 606, 614 (N.J. 1984).

6
The domestic relations referee had earlier determined that Laura was unable to pay the statutory minimum
of $100 a child based on her current income. Although Laura has consistently exercised her visitation rights
when available and maintained a continuous relationship with her children, Laura has not paid her court ordered
$179 monthly child support.
standably and justifiably disturbed by the evidence indicating that Laura would coach her
three year old son into making false allegations of child abuse. Such conduct is extremely
harmful to children and traumatic to those who are falsely accused, and cannot be tolerated.
The district judge properly ruled that moving the children would enhance their lifestyle,
ameliorate the family's financial condition, and provide badly needed emotional stability for
the children. Although a one-month summer visitation period is less than the period requested
by Laura, prospects exist for expanding the visitation if the current schedule remains free of
recurrent maternal misconduct and proves beneficial to the children.
7
The district court did
not abuse its discretion in granting Christopher's motion.
[Headnotes 13, 14]
Finally, Laura argues that the district court erred in not awarding her attorney's fees. The
award of attorney's fees in divorce proceedings lies within the sound discretion of the trial
judge. See Sogge v. Sogge, 94 Nev. 88, 89, 575 P.2d 590, 591 (1978) (citations omitted). In
the instant case, Laura was responsible in part for the incurrence of attorney's fees because of
the false accusations of child abuse and her failure to comply with child support orders.
8
Under the circumstances, it was not an abuse of discretion for the court to deny Laura's
request for attorney's fees.
In sum, after a careful review of the entire record and for the reasons expressed above, we
conclude that the district court did not err in its rulings and therefore affirm the judgment
entered below.
__________

7
In the most recent court-ordered psychological evaluation of Laura in the record on appeal, Dr. Lewis
Etcoff recommended that the children live with her during the summer so that they can become reacquainted
with their mother which is so very important, not only to their mother but even more important to them as
children.

8
This appeal is the culmination of protracted litigation between Laura and Christopher. The district court
judge, counting some thirty-five different court appearances in the instant case, expressed dismay that the
parents were ambushing each other through the courts without really beginning to realize the detrimental
effect on the children.
_____________
107 Nev. 387, 387 (1991) Consumers Distributing v. Hermann
CONSUMERS DISTRIBUTING COMPANY LIMITED, Appellant, v. E.T. HERMANN
AND JANE HERMANN, TRUSTEES of the E.T. AND JANE HERMANN 1978 LIVING
TRUST, Respondents.
No. 21184
June 6, 1991 812 P.2d 1274
Appeal from a bench trial judgment granting holdover rent and other damages to a
commercial landlord. Second Judicial District Court, Washoe County; John W. Barrett,
Judge.
Owner-landlord of rented warehouse brought suit against business tenant for breach of
lease agreement, unjust enrichment, and rent pursuant to holdover tenancy. The district court
found that tenant was holdover tenant and that landlord properly applied security deposit to
tenant's defaults on payments due pursuant to lease and awarded landlord damages. Tenant
appealed. The supreme court held that: (1) damage to rented building was not extensive
enough that operation of law should create holdover tenancy, although pictures of warehouse
depicted need for numerous repairs, where actual cost of repairs amounted to $11,000, which
was figure less than one-fourth of one month's rent or one-fourth of security deposit; (2)
holdover would not be imposed on tenant which leased warehouse space based on facts that
tenant remained in possession of premises to oversee repairs after expiration of lease term,
tenant continued to pay utility bill for premises, and tenant neglected to turn over lock
core-pulling keys, thus denying owner-landlord access to offices in rented building; and (3)
owner-landlord of rented warehouse was estopped from charging late penalties and interest
where owner-landlord had not computed or demanded payment of late penalties or interest
provided for by lease for entire five years of lease term, despite nonwaiver provision
contained in lease.
John Nicholas Schroeder, Reno; Zankel & McGrane and Michael Patrick Carbone, San
Francisco, California, for Appellant.
Woodburn, Wedge & Jeppson and Lynne K. Jones, Reno, for Respondents.
Trial court may impose holdover tenancy if vacating tenant leaves premises with substantial damage or in unusable condition.
Damage to rented building was not extensive enough that operation of law should create holdover tenancy, although
pictures of warehouse depicted need for numerous repairs, where actual cost of repairs amounted to
$11,000, which was figure less than one-fourth of one month's rent or one-fourth of security deposit.
of law should create holdover tenancy, although pictures of warehouse depicted need for numerous repairs, where actual cost of repairs
amounted to $11,000, which was figure less than one-fourth of one month's rent or one-fourth of security deposit.
Holdover would not be imposed on tenant which leased warehouse space based on facts that tenant remained in possession of
premises to oversee repairs after expiration of lease term, tenant continued to pay utility bill for premises, and tenant neglected to turn
over lock core-pulling keys, thus denying owner-landlord access to offices in rented building.
Landlord's failure to produce prospective tenant does not negate possibility of holdover tenancy, as poor conditions of property
may scare away prospective tenants, but landlord must show some effort to get old tenant out and new tenant in before operation of law
will impose holdover tenancy.
5. Interest; Landlord and Tenant.
Business tenant could not challenge as unfair rate of penalties and interest imposed by lease contract which had been entered into
at arms length; Nevada statutorily authorizes parties to agree for payment of any rate of interest, for compounding of interest, and for
any other charges or fees. NRS 99.050.
Owner-landlord of rented warehouse was estopped from charging late penalties and interest where owner-landlord had not
computed or demanded payment of late penalties or interest provided for by lease for entire five years of lease term, despite nonwaiver
provision contained in lease.
Nonwaiver clause of lease, which allows landlord to accept rent without waiving late penalties or interest, is generally enforceable.
Although business tenant was in default on certain amounts owed owner-landlord of rented warehouse, owner-landlord wrongfully
withheld interest accruing on security deposit and paid that interest to owner-landlord itself, where owner-landlord never demanded
that tenant pay late penalties and never provided tenant with accounting showing amounts which satisfied tenant's debts.
Landlord must provide tenant with accounting when landlord withholds funds, whether or not lease contract provides that tenant is
entitled to accounting.
OPINION
Per Curiam:
Appellant Consumers Distributing Company Limited (Consumers) is a corporation
engaged in the business of marketing and distributing a variety of products including sporting
goods, sportswear, household goods, and small appliances through catalogues and catalogue
stores.
logues and catalogue stores. Consumers leased warehouse space in Sparks, Nevada, for a
five-year term with an option to renew. The E.T. and Jane Hermann 1978 Living Trust
(Trust) is the successor in interest to the lessor and the current owner of the warehouse which
is the subject of this litigation.
The leased premises, built specifically for Consumers, consists of 250,560 square feet of
warehouse space, with offices on a mezzanine level, plus a separate truck trailer parking area.
The lease agreement was executed on September 9, 1982, and included the following relevant
terms: The lease would run for sixty months commencing June 1, 1983. Consumers would
pay $44,123.62 a month for the warehouse building and $14,000.00 for the trailer parking
area for the first year of the lease, and $11,000.00 for each subsequent year. Consumers
would also pay additional amounts such as operating expenses and property taxes. The lease
imposed a penalty for payments made more than fifteen days late. This penalty equaled four
percent of the amount due plus eighteen percent interest, and would apply to all amounts
owed including rent, operating expenses, or taxes. The lease required that Consumers tender a
security deposit equal to one month's rent and that the Trust place the security deposit in a
separate interest-bearing account and assign the interest to Consumers.
Consumers tendered the security deposit and paid the monthly rent for the entire five-year
term. It also paid many of the operating expenses and taxes. However, the parties dispute the
amounts and timeliness of some of these payments and the trial court found that Consumers
still owed $75,208.00 in operating expenses, taxes and interest to the Trust.
1

Sometime in 1986, Consumers decided to close its Sparks facility and informed the Trust
of its intentions. Consumers asked to terminate the lease as of April 1987, but the Trust
refused because the building would be difficult to relet. Therefore, Consumers remained
bound to the terms of the lease and continued to pay rent until the lease expired in May, 1988.
On June 3, 1988, Consumers wrote to the Trust confirming that the lease had expired and
requesting return of its security deposit.
The lease required that the lessee return the premises in the same condition in which it was
received. However, the warehouse needed about $11,000.00 worth of repair work. Several
months before expiration of the lease, the Trust agreed to make a list of items it wished to
have repaired.
__________

1
This amount includes penalties and interest. Consumers does not contest that it owes operating expenses
and taxes, but it does assert that the Trust waived its claim for penalties and interest. Without these extra costs,
the amount that Consumers does not contest equals $33,573.12.
list of items it wished to have repaired. However, this list was not delivered until May 12,
1988twenty-three days before the lease expired. Upon receipt of the list, Consumers hired a
contractor to make the repairs. A Consumers' employee oversaw the construction which
lasted until mid-September.
In mid-October, the Trust reentered the premises, changed the locks on the doors, and
requested that Consumers turn over the core pulling keys. These are keys that remove the lock
core cylinders and permit the user to change the locks so that they can be opened by different
keys. Consumers delivered the core pulling keys on about November 10, 1988. Even without
the core pulling keys, the lock cylinders could have been replaced at a cost of $25.00 each.
The Trust asserted that Consumers was a hold over tenant and demanded rent payments
until November 1988, when Consumers turned over the core pulling keys. The Trust also
asked for penalties and interest that had accrued over the last five years on payments that
Consumers had made late. Previously, the Trust generally refrained from demanding that
Consumers pay its late fees.
2
Consumers disputed that it held over, and this litigation
ensued.
The Trust brought three causes of action for breach of the lease agreement, one for unjust
enrichment for Consumers' occupation of the premises without paying all expenses it had
contracted to pay, and one for rent pursuant to a holdover tenancy. In a bench trial, the court
found that Consumers was a holdover tenant because it did not surrender the premises until
November, 1988, and that the Trust properly applied the security deposit to Consumers'
defaults on payments due pursuant to the lease. The Trust was awarded $423,058.16 which
was comprised of: (1) unpaid invoices for operating expenses, (2) repair costs (for repairs
which were made after the Trust retook the premises), (3) trailer storage area rent, (4)
holdover warehouse rent, (5) holdover common area maintenance charges, (6) late charges
and interest accruing until the date of trial on all of the above listed items, and (7) attorney's
fees and costs. Then the court subtracted the security deposit from this amount to reach the
amount awarded to the Trust.
On appeal, Consumers asserts that it did not hold over past the termination of the lease. It
asserts that the Trust knew that it had relinquished possession, and that neither the
demised condition of the premises, the unwanted property left on the premises, nor the
failure to return the keys rendered it a holdover tenant.
__________

2
Consumers had been paying its invoices late each month. Instead of charging it appropriate penalties and
interest, the Trust chose to deal with delinquent payments in a way that contravened the terms of the lease. In
1985, the Trust transferred Consumers' security deposit, $44,123.62, to its own name and started paying the
interest to itself.
relinquished possession, and that neither the demised condition of the premises, the unwanted
property left on the premises, nor the failure to return the keys rendered it a holdover tenant.
It concedes that it is liable for some invoices that it left unpaid and for amounts the Trust
expended to repair the premises. Consumers also asserts that it should not have to pay the
harsh late penalty and interest rate because (1) the Trust waived its right to impose these
penalties by never demanding them over the last five years, and (2) the rate was at a usurious
level and therefore should be void even though Consumers had agreed to those terms in the
contract.
We agree with Consumers that its course of conduct did not amount to a holdover.
Therefore, Consumers only remains liable for any amounts it previously owed to the Trust
and for the cost of repairs. In addition, the Trust acted in contravention of the lease terms
when it transferred the security deposit into its own name and kept the interest from the
account. Therefore, the Trust must compensate Consumers for these wrongfully withheld
interest payments. Finally, we conclude that Consumers is not liable for any interest or
penalties for previous late payments. Although the clause providing for these penalties was
valid, the Trust waived its right to enforce the penalty provision by its consistent failure to
demand interest and penalties over the lease term.
I. Holdover Rent:
[Headnote 1]
Courts generally agree that whether the tenant's failure to repair amounts to a holdover is a
question of fact to be decided in light of the surrounding circumstances. See, e.g., Caserta v.
Action for Bridgeport Community, 377 A.2d 856 (Conn.App. 1976) (leaving personal
property on the premises may constitute holding over; this is a question of fact for the trial
court); Comedy v. Vito, 492 A.2d 276 (D.C.App. 1985) (small amount of property left on
premises was not a holdover); Hoopes v. Prudential Ins. Co. of America, 362 N.E.2d 802
(Ill.App. 1977) (keeping the key and leaving the lights on was not a holdover); Huff v.
Northern Pacific Ry. Co., 228 P.2d 121 (Wash. 1951) (whether leaving property on the
premises amounts to a holdover is a question of fact). These cases show that a trial court may
impose a holdover tenancy if the vacating tenant leaves the premises with substantial damage
or in an unusable condition.
[Headnote 2]
The Trust asserted and the trial court believed that the damage to the building was
extensive. The trial court based its finding on the fact the pictures of the warehouse
depicted a need for numerous repairs.
the fact the pictures of the warehouse depicted a need for numerous repairs. However, the
actual cost of repairs only amounted to about $11,000.00, a figure which equaled less than
one-fourth of one month's rent, or one-fourth of the security deposit. In spite of how the
warehouse may have appeared, these figures show that the damage was not extensive enough
so that operation of law should create a holdover. Also, the Trust made no showing that it
cared when Consumers vacated, or that it would have made efforts to relet the warehouse if it
had been in top condition. Consumers had vacated the warehouse many months before
expiration of the lease and had tried to convince the Trust to terminate the lease early. The
Trust refused this request, but never informed Consumers that it would impose a holdover if
the warehouse needed repairs. In addition, the Trust dragged its feet in informing Consumers
what repairs it would require, by waiting until just before expiration of the lease to deliver the
list of necessary repairs.
[Headnote 3]
The Trust asserts that Consumers held over because: (1) Consumers remained in
possession of the premises to oversee repairs after expiration of the lease term, (2) Consumers
continued to pay the utility bill for the premises, and (3) Consumers neglected to turn over the
core pulling keys, denying the Trust access to three offices in the building. None of these
reasons constitutes sufficient grounds to impose a holdover. Consumers' acts of overseeing
construction and paying the utility bill show that it took its obligation to repair seriously.
These acts should not be used against it to show that it did not relinquish possession. Also,
the cases listed above all agree that the failure to return keys does not constitute a holdover.
If the Trust had made some showing that it encouraged Consumers to have the premises
repaired upon the expiration date or that it completed its obligation to make a list of necessary
repairs in a timely fashion, then we would be more inclined to uphold the imposition of a
holdover tenancy. However, the Trust concedes that if Consumers had abandoned the
premises and left the repairs for the Trust to complete, there would be no holdover. Under
these circumstances, Consumers should not be penalized for merely completing an obligation.
[Headnote 4]
In addition, the Trust makes no showing that it could have relet the premises had
Consumers completed the repairs on time. We do not hold that a landlord's failure to produce
a prospective tenant negates the possibility of a holdover, for poor conditions of the property
may scare away such prospects, and a landlord should not be forced to lose income because
of a prior tenant's failure to repair.
should not be forced to lose income because of a prior tenant's failure to repair. However, a
landlord must show some effort to get the old tenant out and a new tenant in before operation
of law will impose a holdover tenancy.
II. Late Penalties and Interest:
[Headnote 5]
Consumers asserts that the rate of penalties and interest imposed by the contract was
usurious and should be void as a matter of law. However, Nevada has no statute which
precludes high interest rates. Instead, NRS 99.050 states that,
Parties may agree for the payment of any rate of interest on money due or to become
due on any contract, for the compounding of interest if they choose, and for any other
charges or fees. The parties shall specify in writing the rate upon which they agree, that
interest may be compounded if so agreed, and any other charges or fees to which they
have agreed.
Since Consumers entered into this lease contract at arms length, it may not assert that now,
the terms of the contract are unfair.
[Headnote 6]
However, Consumers is correct in its assertion that the Trust waived its right to collect
penalties and interest. The Trust never computed or demanded payment of late penalties or
interest for the entire five years of the lease term. Therefore the Trust lulled Consumers into
believing that it was not required to pay the penalties, and should be estopped from imposing
the penalties now. This reasoning, however sound, creates some friction when compared with
section 26 of the lease, entitled Waiver, which states that,
The waiver by Lessor of any breach of any term, covenant or condition herein contained
shall not be deemed to be a waiver of such term, covenant, or condition or any
subsequent breach of the same or any other term, covenant or condition herein
contained. The subsequent acceptance of rent hereunder by Lessor shall not be deemed
to be a waiver of any preceding breach by Lessee of any term, covenant, or condition of
this lease, other than the failure of Lessee to pay the particular rent so accepted,
regardless of Lessor's knowledge of such preceding breach at the time of acceptance of
such rent.
Consumers asserts that this clause should be unenforceable because acceptance of a debt
without reservation of one's right to receive more, denotes satisfaction of that debt. See,
e.g., Burstein v. Liberty Bell Village, Inc.,
receive more, denotes satisfaction of that debt. See, e.g., Burstein v. Liberty Bell Village, Inc.,
293 A.2d 238 (N.J.Super. 1972) The facts in Burstein are quite similar to the case at bar. In
Burstein, the lease contract had a non-waiver provision similar to the one in this case. At the
end of the lease term, the landlord deducted all the late payments that he had not charged to
the tenant from the security deposit. The court decided that in spite of the non-waiver
provision, a lessor is estopped from asserting a forfeiture for a breach of a lease condition
when he accepts rent with full knowledge of the breach. Id. at 239-240. For the same reason,
the Trust is now estopped from charging late penalties and interest.
[Headnote 7]
We decline to adopt the Burstein rule across the board. This non-waiver clause, which
allows a landlord to accept rent without waiving late penalties or interest, is generally
enforceable. Restatement (Second) of Property, Landlord and Tenant, 12.1 comment c
(1977). However, parties may not sit on their rights forever, and such clauses retain their
force and effect for only a reasonable amount of time. It is unconscionable for a lessor to
assert this provision after it has continually refrained from collecting the penalty for a long
period of time. We conclude that five years was too long a time for the Trust to wait before
demanding the penalty. Therefore, it has waived its right to collect the penalty now.
III. Interest on the Security Deposit:
[Headnotes 8, 9]
The lease required that the Trust hold the security deposit in a separate interest bearing
account and pay the interest to Consumers. However, the Trust started paying the interest to
itself in March 1985, under the theory that defaults by Consumers amounted to more than
interest from the deposit. Although Consumers was in default on certain amounts owed, the
Trust wrongfully withheld interest because it never demanded that Consumers pay the
penalties, and never provided Consumers with an accounting showing the amounts which
satisfied Consumers' debts. A landlord must provide its tenant with an accounting when it
withholds funds, whether or not the lease contract provides that the tenant is entitled to the
accounting. See, e.g., Chinese Hospital Foundation Fund v. Patterson, 81 Cal.Rptr. 795
(Ct.App. 1969) (tenant should receive interest on security deposit so long as landlord retains
it); Pasadena Hudson, Inc. v. Maggiora, 321 P.2d 852 (Cal.App. 1958) (tenant is entitled to
know the formula by which interest on its security deposit should have been calculated).
the formula by which interest on its security deposit should have been calculated).
Conclusion:
Since Consumers is not liable for holdover rent or penalties or interest, the only amounts
that it still owes to the Trust are: (1) amounts owed for invoices as of May 1, 1988, (2) costs
of repairs completed by the Trust, and (3) unpaid trailer storage area rent. However, the Trust
must return to Consumers the entire security deposit, as well as any interest that accrued on
the deposit since March 1985. Also, since most issues on this appeal have been resolved in
favor of Consumers, we vacate the award of attorney's fees and costs which the trial court
granted to the Trust.
Accordingly, we reverse the judgment imposing a holdover tenancy and remand this
matter to the district court for further proceedings consistent with this opinion.
____________
107 Nev. 395, 395 (1991) Jezierski v. State
KENNETH E. JEZIERSKI, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21214
June 6, 1991 812 P.2d 355
This is an appeal from a judgment of conviction, pursuant to a guilty plea, of one count of
child abuse with substantial bodily harm. Eighth Judicial District Court, Clark County;
Addeliar D. Guy, Judge.
Defendant filed presentence motion to withdraw guilty plea to one count of child abuse
with substantial bodily harm. The district court denied motion and sentenced defendant to
twelve years, and defendant appealed. The supreme court, Mowbray, C. J., held that
defendant should have been allowed to withdraw guilty plea, where defendant did not
understand when pleading guilty that allegations made in connection with dismissed counts
could be considered in sentencing him.
Young, and Steffen, JJ., dissented.
Criminal Law.
Defendant should have been allowed, prior to imposition of sentence, to withdraw guilty plea to one count of child abuse with
substantial bodily harm, where defendant had not understood that allegations made in connection with dismissed counts could be
considered in sentencing him, and thus defendant had entered guilty plea without being properly informed of consequences.
OPINION
By the Court, Mowbray, C. J.:
On December 12, 1989, Mr. Jezierski was charged, by way of information, with three
counts of child abuse with substantial bodily harm, one count of child abuse with substantial
mental injury, and one count of sexual assault of a minor under fourteen years of age. On
January 23, 1990, pursuant to a plea negotiation, Jezierski plead guilty to one count of child
abuse with substantial bodily harm.
Prior to sentencing, Jezierski made a motion to withdraw his plea. Mr. Jezierski did not
understand that the allegations made in connection with the dismissed counts could be
considered in sentencing him. The court denied Jezierski's motion and sentenced him to
twelve years.
The State suggests that this case is controlled by Ferris v. State, 100 Nev. 162, 677 P.2d
1066 (1984). In Ferris, appellant moved to strike that portion of the presentence report
pertaining to two of the dismissed charges. This court held that absent an agreement to the
contrary, the State may include information in a presentence report pertaining to dismissed
charges. Ferris, 100 Nev. at 163-164, 677 P.2d at 1067. Unlike Ferris, however, the present
case does not involve a motion to strike portions of the presentence report; rather, it involves
a pre-sentence request to withdraw a guilty plea.
Mr. Jezierski entered a plea without being properly informed of the consequences.
Pleading guilty to one count as part of a negotiated agreement, Mr. Jezierski was suddenly
surprised to learn that the dismissed counts could be used against him anyway. Mr. Jezieski
promptly attempted to withdraw the plea before sentencing. He was denied that opportunity.
Mr. Jezierski should have been allowed to withdraw the plea. No public policy supports
binding a defendant to his plea where the plea was made under misconception, and where the
State has not yet been prejudiced. Such a result is not mandated by Ferris.
For the foregoing reasons, we reverse the judgment of conviction and remand for trial on
all counts.
Springer and Rose, JJ., concur.
Young, J., with whom Steffen, J. joins, dissenting:
Appellant was charged with five counts of child abuse. Four of the charges were dismissed
in return for a guilty plea. The State also agreed not to make any sentencing recommendation.
During the court's canvass prior to the entry of appellant's plea, defense counsel informed the
court that: One of the reasons he is pleading guilty to this offense would be so that he does
not stand trial on the other offenses which carry additional and greater penalties. Appellant
then informed the court that his plea was freely and voluntarily given. He acknowledged that
he faced a sentence of up to twenty years imprisonment. The court accepted his plea.
Prior to sentencing, appellant learned that the four dismissed charges could be considered
by the court in passing sentence. He then moved to withdraw his plea. The court denied this
motion and sentenced appellant to twelve years in the Nevada State Prison.
Appellant now argues that his guilty plea was not entered knowingly and voluntarily
because he was unaware that the dismissed charges would be included in his pre-sentence
report. We have previously held that a pre-sentence report may contain information
concerning charges dismissed pursuant to a plea bargain. Ferris v. State, 100 Nev. 162, 163,
677 P.2d 1066, 1066 (1984).
A plea of guilty is presumptively valid, particularly where it is entered into on the advice
of counsel. Wingfield v. State, 91 Nev. 336, 337, 535 P.2d 1295, 1295-96 (1975). Upon a
motion for withdrawal, the defendant has the burden of proving that the plea was not entered
knowingly or voluntarily. Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986);
Wynn v. State, 96 Nev. 673, 675, 615 P.2d 946, 947 (1980). A motion to withdraw a guilty
plea is addressed to the discretion of the trial court and should not be disturbed on appeal
absent a clear showing of an abuse of discretion. Bryant, 102 Nev. at 272, 721 P.2d at 368;
State v. Adams 94 Nev. 503, 505, 581 P.2d 868, 869 (1978).
Appellant's assertion that he was unaware that the court could consider the dismissed
charges in passing sentence defies reality. In all but a few cases, the judge who accepts the
plea is the same person who passes sentence. Even absent mention of dismissed charges in a
pre-sentence report, the judge will probably be aware of them. Any understanding to the
contrary would ignore the practicality of a district judge's involvement in the entry of the
guilty plea. Ferris, 100 Nev. at 163, 677 P.2d at 1067. Sentencing pursuant to a guilty plea is
vested in the court as a discretionary function. Full knowledge of the facts of the case,
including the defendant's character and potential for further harm to society, constitutes the
foundation for this discretionary authority.
ety, constitutes the foundation for this discretionary authority. Appellant would have the
judge suffer amnesia as to what transpired prior to the moment the guilty plea is entered. The
human mind does not function this way and, surely, our criminal justice system cannot.
One element considered in deciding whether a guilty plea is voluntarily made is whether
the defendant has an adequate appreciation of the possible sentence that could be imposed.
Taylor v. Warden, 96 Nev. 272, 275, 607 P.2d 587, 589 (1980). The record reveals that
appellant had such an understanding. When appellant entered his plea, he acknowledged that
the court could impose a sentence of up to twenty years. The Department of Probation and
Parole recommended a twenty year sentence. Appellant received a twelve year sentence. This
reinforces my opinion that appellant's plea was entered knowingly and voluntarily.
Appellant also asserts that he misunderstood the substantial bodily harm element of the
crime to which he pled. This court has held that a defendant need only understand the
essential nature of the charges against him. Such an understanding does not always require
that a defendant express an understanding of, or admit to, every specific element of the crime
charged. Bryant, 102 Nev. at 273, 721 P.2d at 368. In this case, the record reveals that
appellant not only knew the nature of the charge, but that he fully understood the substantial
bodily harm element. The element was defined for appellant as prolonged physical pain or
impairment of bodily function. The child abuse charge to which appellent pled guilty
involved his using a scouring paid to scrub a young boy's cheek. After the substantial bodily
harm element was defined to appellant, he told the court: I used the abrasive side of the
sponge which caused the severe scratches and caused Andy to cry. This admission
demonstrates sufficient understanding of the offense for the court to have accepted the plea.
My brethren in the majority state that public policy does not support binding a defendant
to his plea where the plea was made under misconception and where the State has not yet
been prejudiced. The record in this case does not reflect that appellant was acting on the basis
of any misconception when he entered his plea. He faced the likelihood of twenty years
imprisonment and received substantially less. If he had gone to trial on all five charges, he
faced the possibility of multiple life sentences. Appellant struck what many experienced
practitioners would consider a deal with the State. I am at a loss to understand why he now
seeks to renege and face a potentially harsher punishment.
I also disagree with the majority's assertion that no prejudice occurs when a defendant is
allowed to withdraw a guilty plea prior to sentencing.
prior to sentencing. The State is prejudiced when defendants are freely allowed to withdraw
guilty pleas any time they have second thoughts about the arrangement. Plea bargaining in our
judicial system is virtually a necessity. It is largely justified in terms of keeping the wheels of
the system turning. If defendants are allowed to freely change their minds after a plea is
entered, the time and resource-saving rationales of the plea bargaining system are defeated.
The majority opinion in this case sets a dangerous precedent. It opens the door to a
multiplicity of appeals based upon claims by defendants that they were unaware of what the
court may consider in passing sentence. I must therefore respectfully dissent.
____________
107 Nev. 399, 399 (1991) Sanborn v. State
HARRY ANDREW SANBORN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 17553
HARRY A. SANBORN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19755
June 6, 1991 812 P.2d 1279
Consolidated appeals from judgment of conviction of first degree murder with use of a
deadly weapon and from denial of appellant's petition for post-conviction relief and motion
for a new trial. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant was convicted before the district court of first degree murder with use of a
deadly weapon, and he appealed, challenging both conviction and denial of post-conviction
relief petition and motion for new trial. The supreme court, Steffen, J., held that: (1) defense
counsel's failure to perform pretrial investigation, to pursue evidence supportive of claim of
self-defense, and to explore allegations of victim's propensity towards violence constituted
ineffective assistance, requiring reversal of conviction, and (2) although police officer's
mishandling of gun and consequent loss of potentially exculpatory evidence was sufficiently
prejudicial to warrant reversal, it did not warrant dismissal of all charges.
Springer, J., dissented in part.
Tufteland, Chief Deputy District Attorney, Bill Berrett, Deputy District Attorney, Clark
1. Criminal Law.
To state a claim of ineffective assistance of counsel sufficient to invalidate a judgment of conviction, defendant must demonstrate
that trial counsel's performance fell below objective standard of reasonableness and that counsel's deficiencies were so severe that they
rendered jury's verdict unreliable. U.S.C.A.Const. amend. 6.
2. Criminal Law.
Defense counsel's representation of murder defendant fell below objective standard of reasonableness, where counsel did not
adequately perform pretrial investigation, failed to pursue evidence supportive of claim of self-defense, and failed to explore allegations
of victim's propensity toward violence; moreover, counsel's failures were so severe that they rendered jury's verdict unreliable; had jury
been properly presented with evidence apparently available to support claim of self-defense, outcome might well have been very
different. U.S.C.A.Const. amend. 6.
3. Criminal Law.
Grant or denial of new trial on ground of newly discovered evidence is within trial court's discretion and will not be reversed on
appeal absent its abuse. NRS 176.515, subd. 1.
4. Criminal Law.
To establish basis for new trial on ground of newly discovered evidence, evidence must be: newly discovered; material to the
defense; such that even with the exercise of reasonable diligence it could not have been discovered and produced for trial;
non-cumulative; such as to render a different result probable upon retrial; not only an attempt to contradict, impeach, or discredit a
former witness, unless the witness is so important that a different result would be reasonably probable; and the best evidence the case
admits. NRS 176.515, subd. 1.
5. Criminal Law.
Although defendant's right to self-representation is sharply curtailed once trial has begun, if the prejudice to legitimate interests of
defendant overbalances potential disruption of proceedings already in progress, then such right must be respected. U.S.C.A.Const.
amend. 6.
6. Criminal Law.
District court committed reversible error by denying defendant's motion to dismiss counsel and represent himself, even though
motion was not made until conclusion of State's case; because defendant's attorney planned to put forward no defense whatsoever,
denial of defendant's legitimate interest in self-representation was so prejudicial that it outweighed considerations pertaining to
disruption of proceedings; thus, defendant was denied his sixth amendment right to self-representation; moreover, denial of motion
deprived defendant of his right to due process because he was denied right to present testimonial evidence concerning violent
propensities of murder victim. U.S.C.A.Const. amends. 6, 14.
7. Criminal Law.
Although police officer's mishandling of gun found at murder scene, with consequent loss of potentially exculpatory evidence,
warranted reversal of murder conviction, it did not warrant dismissal of all charges; rather, in the event State elected to
prosecute defendant anew, trial court would be required to instruct jury that because State failed to test
firearm which was used to inflict wounds on defendant for blood and fingerprints, weapon was irrebuttably
presumed to have been held and fired by victim, leaving to jury to determine whether defendant was shot
by victim in an act of self-defense.
charges; rather, in the event State elected to prosecute defendant anew, trial court would be required to instruct jury that because State
failed to test firearm which was used to inflict wounds on defendant for blood and fingerprints, weapon was irrebuttably presumed to
have been held and fired by victim, leaving to jury to determine whether defendant was shot by victim in an act of self-defense.
8. Criminal Law.
Prosecutor's remarks during closing argument of murder trial concerning his personal beliefs, placing jury in victim's shoes, and
commenting without evidentiary foundation on absence of defensive wounds on persons of both defendant and victim constituted
improper conduct.
OPINION
Appellant, Harry A. Sanborn, was convicted by a jury of first degree murder with use of a
deadly weapon and sentenced to two consecutive terms of life without the possibility of
parole. Thereafter Sanborn filed a petition for post-conviction relief and a motion for a new
trial. Both were denied. In these consolidated appeals, Sanborn challenges his conviction and
the denial of his post-trial petitions for relief. Our review of the record reveals prejudicial
error requiring a new trial. We therefore reverse and remand.
Facts
On the evening of May 30, 1984, officers of the Las Vegas Metropolitan Police
Department were summoned to Sanborn's residence following reports of a shooting. Upon
their arrival, officers found Sanborn's wife in the living room with her husband, who was
bleeding profusely from two bullet wounds. The officers asked Sanborn what happened. In
response, he repeatedly stated that he had shot John Papili, a former business partner. Officers
were forced to restrain the agitated Sanborn in order to prevent an aggravation of his injuries.
Sanborn resisted the officers, rambling on about how he wanted to die. In answer to
additional questions from the officers, Sanborn stated that he had shot himself, a declaration
that he later described as a sarcastic remark. The victim, John Papili, was discovered in the
next room, lying face down in a small amount of blood. His lifeless body revealed nine bullet
wounds.
One of the officers picked up a small handgun found on the carpet inside the residence.
Despite noticing blood on the gun and the area of the carpet from which it was retrieved, the
officer placed the weapon in his right rear pocket without taking any precautionary measures
to preserve its extrinsic evidentiary properties. Later, he placed the gun inside the trunk of his
patrol car.
Although it was subsequently determined that the handgun was the weapon used to shoot
Sanborn, an identification specialist was unable to recover latent fingerprints from the
weapon and did not recall seeing any blood on it. Another handgun, determined to be the
weapon used in shooting Papili, was also obtained at the scene.
The state's theory at trial was that Sanborn intentionally killed Papili and then turned a gun
on himself. Although his attorney put forward no defense at trial, Sanborn claims that Papili
was the initial aggressor and that he killed Papili in self-defense.
At trial, the state called numerous witnesses, including the officers and medical personnel
who reported to the scene, and ballistics and identifications specialists. One ballistics
specialist testified, over objection, that in his opinion a press contact firing (i.e., one inflicted
by pressing a gun directly against the skin or clothing) would not leave a residue but would
pass through the clothing into the flesh. He further testified that Sanborn's t-shirt, which was
in poor condition, had no residue on it. However, pursuant to court order, the specialist had
performed only one test on the weapon; the test did not involve a press contact firing. The
specialist conducted a cylinder gap test to determine whether residue escaping from the
revolver's cylinder gap would have left detectable amounts of residue on Sanborn's t-shirt, but
did not perform a muzzle blast test to determine whether a press contact gunshot would have
projected detectable amount of residue onto the shirt. In addition, Sanborn's surgeon testified
that he did not remember noticing gunshot residue in Sanborn's chest cavity. The jury also
heard from a Sanborn friend and former employee who testified that Sanborn had confessed
to her that he had killed Papili and shot himself.
At the conclusion of the state's case, Sanborn moved to dismiss counsel and represent
himself, claiming that he had just learned that his attorney planned to put forward no defense.
The court denied his motion as untimely and inappropriate. Thereafter, the defense rested
without making an opening statement, calling any witnesses, or presenting any evidence.
Sanborn then insisted on testifying in his own defense. He testified that he and Papili had
both a personal and business relationship for some years that was marred by a falling out a
few years prior to the shooting incident. Sanborn stated that on the day of the killing, Papili
had come to his house and asked him to help with a computer scam against Papili's employer.
During an ensuing argument, Papili assertedly made a derogatory comment about Sanborn's
daughter. Sanborn responded by physically ejecting Papili from the house. Sanborn also
testified that Papili had previously threatened to get a gun and blow him away if he ever laid
a hand on him.
ever laid a hand on him. Fearful, Sanborn got out his gun and sent his wife away. According
to Sanborn, Papili returned and walked into the house carrying a gun. From that point,
Sanborn's only recollection of the incident was that everything just flashed. Upon regaining
consciousness, he remembered seeing people milling around.
With the exception of Sanborn's testimony, no defense was presented to the jury. The jury
returned a verdict of guilty of first degree murder with the use of a deadly weapon. Sanborn
was sentenced to life without the possibility of parole for the murder and a consecutive
identical term for the deadly weapon enhancement. Sanborn filed both a direct appeal and a
petition for post-conviction relief based upon, inter alia, ineffective assistance of trial
counsel. He also filed a motion for a new trial based upon newly discovered evidence
consisting primarily of the results of test firing the gun used to inflict his own injuries. The
post-trial testing was performed to determine whether a press contact gunshot would deposit
residue on a cotton t-shirt (a muzzle blast test). Contrary to the trial opinion of the state's
ballistics expert, the results produced by the test firing reportedly demonstrated that a press
contact gunshot deposits a substantial amount of residue on clothing.
Following an evidentiary hearing, the district court denied both the petition for
post-conviction relief and the motion for a new trial. A motion for rehearing of the petition
for post-conviction relief was denied. Sanborn then appealed from the denial of his petition
and motion. His appeals have been consolidated for consideration by this court.
Discussion
Sanborn first contends that the district court committed reversible error by denying his
petition for post-conviction relief based upon ineffective assistance of trial counsel. Sanborn
primarily emphasizes his counsel's failure to conduct adequate pre-trial investigation and to
present trial evidence concerning the victim's background and Sanborn's theory of
self-defense as evidenced by facts demonstrating that his wounds were not self-inflicted.
Sanborn asserts that as a result of these and other failures, trial counsel was ineffective. We
agree.
[Headnote 1]
To state a claim of ineffective assistance of counsel that is sufficient to invalidate a
judgement of conviction, Sanborn must demonstrate that trial counsel's performance fell
below an objective standard of reasonableness, and that counsel's deficiencies were so severe
that they rendered the jury's verdict unreliable.
See Strickland v. Washington, 466 U.S. 668 (1984); Warden v. Lyons, 100 Nev. 430, 683
P.2d 504 (1984), cert. denied, 471 U.S. 1004 (1985).
[Headnote 2]
Focusing on counsel's performance as a whole, and with due regard for the strong
presumption of effective assistance accorded counsel by this court and Strickland, we hold
that Sanborn's representation indeed fell below an objective standard of reasonableness. Trial
counsel did not adequately perform pretrial investigation, failed to pursue evidence
supportive of a claim of self-defense, and failed to explore allegations of the victim's
propensity towards violence. Thus, he was not functioning as the counsel' guaranteed the
defendant by the Sixth Amendment. Strickland, 466 U.S. at 687. Moreover, we are
compelled to conclude that counsel's failures were so severe that they rendered the jury's
verdict unreliable. Had the jury been properly presented with the evidence apparently
available to support Sanborn's claim of self-defense, the outcome may very well have been
different. Thus, counsel's efforts both before and during trial were sufficiently deficient to
deprive the defendant of a fair trial. Id. Accordingly, as discussed in greater detail below,
Sanborn has stated a claim of ineffective assistance of counsel that warrants reversal of his
conviction.
First, Sanborn contends that because of counsel's inadequate pretrial investigation and
failure to present trial evidence regarding Papili's violent tendencies, Sanborn's own
testimony was strongly devalued by the absence of corroborative evidence that would have
been presented by diligent and effective counsel. In support of his position, Sanborn insists
that, before trial, he had provided his attorney with a list of potential witnesses who were
prepared to testify concerning Papili's aggressive behavior, his custom of carrying a gun, and
his willingness to threaten its use. Sanborn further avers that these witnesses were in the
courtroom, prepared to testify; and that he was led to believe that his theory of self-defense
would be pursued by his counsel.
We reject the state's claim that counsel's failure to present a defense was sound trial
strategy. There was sufficient evidence to present a self-defense claim.
1
In pursuing such a
claim, evidence of the victim's general character would have been admissible.
__________

1
Specifically, we note that Sanborn testified that Papili entered his home with a gun in hand. Additionally,
had counsel pursued it, there was evidence available to corroborate Sanborn's claim that his own wounds were
not self-inflicted, as shown by the subsequent test results. Further, there may have been evidence tending to
support the proposition that Papili was the aggressor.
NRS 48.045(1)(b). Moreover, evidence of acts of violence by the victim, known by Sanborn
prior to the homicide, would have been admissible to show Sanborn's state of mind on the
issue of self-defense. Burgeon v. State, 102 Nev. 43, 714 P.2d 576 (1986).
Second, Sanborn claims that evidence and testimony were available which would have
demonstrably refuted the state's contention that his wounds were self-inflicted. He also
contends that if such proofs had been presented, the remaining inference would have been
that his wounds were inflicted by Papili, thus supporting his claim that he acted in
self-defense. Specifically, Sanborn relies on the post-trial muzzle blast test which showed that
a self-inflicted, hard press contact wound leaves massive residue on clothing. He persuasively
argues that counsel's failure to develop this evidence resulted in the jury hearing only the
state's erroneous conclusion that a press contact firing leaves no residue. Particularly because
the undeveloped evidence belatedly produced from an actual test firing would have directly
contradicted the state's untested opinion evidence, Sanborn was denied the effective
assistance of counsel on this critical aspect of his defense. Sanborn's defense was clearly
prejudiced by his counsel's failure to develop and present evidence which would have
corroborated Sanborn's testimony and discredited the state's expert witness. Because of
counsel's lack of due diligence, Sanborn was deprived of the opportunity to present testimony
material to his defense, and we are therefore unable to place confidence in the reliability of
the verdict. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
2

The instant case is analogous to Warner v. State, 102 Nev. 635, 729 P.2d 1359 (1986), in
which we held that failure to use the public defender's full-time investigator, to investigate the
background of the victim, to present evidence in support of the appellant's character, and to
contact witnesses, employers, and co-workers constituted inadequate pretrial investigation
resulting in the ineffective assistance of counsel. In Sanborn's case, although defense counsel
used an investigator to some degree, he admitted that the information contained in the
witnesses' affidavits was more useful than the investigator had led him to believe. Many other
potential witnesses were never contacted, even though several of them apparently would have
testified that Papili was violent and threatening and carried a gun. Moreover, defense counsel
admitted at the evidentiary hearing that testimony by corroborative witnesses would
have been important.
__________

2
The state's conclusion was based upon evidence consisting of a cylinder gap test and a ballistics specialist's
opinion that, although he did not perform such a test, a press contact firing would not leave residue.
counsel admitted at the evidentiary hearing that testimony by corroborative witnesses would
have been important. Furthermore, additional testing, even if inconclusive, would have
supplied a basis for doubting the state's claim that Sanborn's wounds were self-inflicted.
Sanborn next contends that the district court erred in denying his motion for a new trial
based upon newly discovered evidence. He asserts that the new evidence supports his theory
of self-defense because it demonstrates, in rebuttal to the state's contrary claim, that he could
not have inflicted his own wounds. He maintains that he made diligent efforts to discover this
evidence for trial but that his efforts were stymied by his attorney.
3

[Headnotes 3, 4]
A district court may grant a new trial on the ground of newly discovered evidence. NRS
176.515(1). The grant or denial of a new trial on this ground is within the trial court's
discretion and will not be reversed on appeal absent its abuse. McCabe v. State, 98 Nev. 604,
655 P.2d 536 (1982). To establish a basis for a new trial on this ground, the evidence must
be: newly discovered; material to the defense; such that even with the exercise of reasonable
diligence it could not have been discovered and produced for trial; non-cumulative; such as to
render a different result probable upon retrial; not only an attempt to contradict, impeach, or
discredit a former witness, unless the witness is so important that a different result would be
reasonably probable;
4
and the best evidence the case admits. McLemore v. State, 94 Nev.
237, 577 P.2d 871 (1978).
Although we have determined the need to clarify our case law concerning the criteria for
determining a criminal defendant's right to a new trial, we decline to determine whether the
criteria has been satisfied by Sanborn.
__________

3
At calendar call, Sanborn informed the court that the defense was not ready in part because necessary
firearm tests had not been performed. In addition, during the pretrial evidentiary hearing, Sanborn addressed the
court and reiterated the need to have the proper tests performed. Finally, during an offer of proof outside the
presence of the jury, Sanborn pointed out that the court's original order did not include the test that ultimately
produced the newly discovered exculpatory evidence (the muzzle blast test).

4
In McLemore v. State, 94 Nev. 237, 239-40, 577 P.2d 871, 872 (1978), we perpetuated earlier rulings by
this court which disallowed as a basis for new trial consideration newly discovered impeachment evidence unless
the witness to be impeached was so important that a different result must follow. (Emphasis added.) In view of
the near impossibility of ever satisfying the must burden, and in further recognition of the fact that new trial
criteria addresses the all-important issue of innocence or guilt, we have modified the impeachment standard to
one that would render a different result reasonably probable.
has been satisfied by Sanborn. Having already concluded that Sanborn's conviction must be
reversed because of the ineffective assistance of trial counsel, it is unnecessary for us to
determine that issue.
Sanborn next contends that the district court committed reversible error by denying his
motion to dismiss counsel and represent himself. He asserts that the motion was neither
untimely nor inappropriate because: (1) he made the motion as soon as he discovered that his
attorney intended to present no defense on his behalf; (2) he had on previous occasions
requested additional counsel and more time; (3) he had witnesses in the courtroom who were
prepared to testify; and (4) the denial of his motion deprived him of his rights to
self-representation and due process.
[Headnotes 5, 6]
Although a defendant's right to self-representation is sharply curtailed once trial has begun,
5
if the prejudice to the legitimate interests of the defendant overbalances the potential
disruption of proceedings already in progress, then such right must be respected. Schnepp v.
State, 92 Nev. 557, 560, 554 P.2d 1122, 1124, (1976). In this case, because his attorney
planned to put forward no defense whatsoever, the denial of Sanborn's legitimate interest in
self-representation was so prejudicial that it outweighted considerations pertaining to
disruption of the proceedings. Thus, we conclude that Sanborn was denied his sixth
amendment right to self-representation. Farretta v. California, 422 U.S. 806 (1975). We
further conclude that denial of the motion deprived Sanborn of his right to due process
because he was denied the right to present testimonial evidence concerning the violent
propensities of the victim. See Coombs v. State, 91 Nev. 489, 538 P.2d 162 (1975). We
therefore hold that, under the circumstances of this case, the district court committed
reversible error by denying Sanborn's motion to dismiss counsel and represent himself.
[Headnote 7]
Sanborn next contends that reversal is mandated because the state failed properly to collect
and preserve the firearm which was used to inflict his wounds. He asserts that the state's
mishandling of the gun prejudiced him because analysis of fingerprints and blood from the
gun was crucial to his theory that he acted in self-defense.
In Sparks v. State, 104 Nev. 316, 759 P.2d 180 (1988), we held that a conviction may be
reversed when the state loses evidence if the defendant is prejudiced by the loss. In this case,
although the chain of custody of the gun itself was not broken, the improper handling of
the gun resulted in a loss of evidence similar to Sparks.
__________

5
Lyons v. State, 106 Nev. 438, 796 P.2d 210 (1990).
chain of custody of the gun itself was not broken, the improper handling of the gun resulted in
a loss of evidence similar to Sparks. Mishandling of the gun resulted in a loss of evidence of
blood and fingerprints; the cases are therefore analogous. As in Sparks, there were no
witnesses, other than the accused, to a homicide claimed to have been committed in
self-defense, and Sanborn's self-defense claim rested almost exclusively on his own testimony
at trial. If Sanborn's testimony is true, evidence of blood or fingerprints on the weapon could
have been critical, corroborative evidence of self-defense. The state's case was buttressed by
the absence of this evidence. Therefore, the state cannot be allowed to benefit in such a
manner from its failure to preserve evidence. Id. at 319, 759 P.2d at 182. We hold that
Sanborn was indeed prejudiced by the police officer's mishandling of the gun. However,
unlike the instant case, in Sparks there was substantial corroborative evidence of the
defendant having been subjected to violent abuse by the victim over a period of many years.
Indeed, the police officer who interrogated Cody Sparks saw corroborative evidence of
fingernail file stabbings, burns, and bruises. As a result, in Sparks we were compelled to view
the mishandling and loss of potentially exculpatory evidence by the state as sufficiently
prejudicial to warrant both a reversal and the dismissal of all charges. We need not do so
here.
In the event the state elects to prosecute Sanborn anew, the trial court shall instruct the jury
that because the state failed to test the firearm that was used to inflict wounds on Sanborn for
blood and fingerprints, the weapon is irrebuttably presumed to have been held and fired by
the victim, Papili. Of course, it would be left to the jury to determine, in weighing all of the
evidence, whether Sanborn was shot by the victim in an act of self-defense. We are acutely
aware of the hardship this ruling will impose on the state in any subsequent prosecution of
Sanborn, but conclude that the only alternative to this disposition would be to order the
charges dismissed. We are simply unable to conclude from this record that any other ruling by
this court would provide Sanborn with the prospect of a fair trial.
[Headnote 8]
Sanborn next contends that the prosecutor's conduct during closing argument was
improper and prejudicial. We note, however, that this issue was not preserved for appellate
review because of the failure of defense counsel to object. We nevertheless observe that the
prosecutor's remarks concerning his personal beliefs, placing the jury in the victim's shoes,
and commenting without an evidentiary foundation on the absence of defensive wounds on
the persons of both Sanborn and the victim did constitute improper conduct which we trust
will not be repeated in the event of a retrial.
did constitute improper conduct which we trust will not be repeated in the event of a retrial.
We have considered Sanborn's remaining contentions and conclude that they lack merit.
Accordingly, for the reasons previously discussed, we reverse Sanborn's judgment of
conviction and remand for a new trial should the state elect to prosecute Sanborn under the
constraints established by this opinion.
Mowbray, C. J., Rose and Young, JJ., concur.
Springer, J., concurring in part, and dissenting in part:
While I agree with the majority's decision to reverse Sanborn's conviction, I do not agree
that the case should be remanded for a new trial. In my view, the instant case is controlled by
Sparks v. State, 104 Nev. 316, 319, 759 P.2d 180, 182 (1988). In Sparks, we held that where
the State had mishandled evidence (a gun) that was crucial to the defense, the defendant could
not be retried. Today, on an almost identical set of facts, we hold that the State may retry
Sanborn. As I stated in Haberstroh v. State, 105 Nev. 739, 743, 782 P.2d 1343, 1345 (1989)
(Springer, J., concurring), [W]hat we disapprove of yesterday, we approve of today.
Because I believe that Sparks should be followed and that we should overrule cases explicitly,
or not at all, I dissent.
_____________
107 Nev. 409, 409 (1991) Doleman v. State
MARVIN LEWIS DOLEMAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21479
June 6, 1991 812 P.2d 1287
Appeal from judgment of conviction, pursuant to jury trial, of attempted murder with use
of a deadly weapon, murder with use of a deadly weapon and two counts of robbery with use
of a deadly weapon. Appeal also from sentence of death imposed by jury. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant was convicted before the district court of one count of murder in the first
degree, one count of attempted murder, and two counts of armed robbery, and he appealed.
The supreme court, Rose, J., held that: (1) warrantless arrest of defendant in his hotel room
was justified by probable cause and exigent circumstances (2) trial court did not err in
denying defendant's motion for continuance which defendant sought in order to contact
certain witnesses; and (3) evidence of defendant's culpability in robbery and murder of cab
driver was sufficient to satisfy culpability requirement for imposition of death penalty.
in robbery and murder of cab driver was sufficient to satisfy culpability requirement for
imposition of death penalty.
Affirmed.
Springer, J., dissented in part.
Tufteland, Chief Deputy District Attorney, Thomas L. Leen, Deputy District Attorney, Clark
1. Searches and Seizures.
Warrantless searches and seizures in a home are presumptively unreasonable; however, such searches are permitted if based upon
probable cause and exigent circumstances. U.S.C.A.Const. amend. 4.
2. Searches and Seizures.
Rule that warrantless searches and seizures in a home are presumptively unreasonable applies to hotel rooms as well as private
homes. U.S.C.A.Const. amend. 4.
3. Arrest.
Probable cause to conduct a warrantless arrest exists when police have reasonably trustworthy information of facts and
circumstances that are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being
committed by person to be arrested. U.S.C.A.Const.amend. 4.
4. Arrest.
Probable cause to arrest need not be based on knowledge of a specific police officer, but may be based on the collective knowledge
of all officers involved. U.S.C.A.Const. amend. 4.
5. Arrest.
Police had probable cause to arrest defendant in his hotel room, on suspicion of participation in robbery and shooting of two cab
drivers, where informant told police that she suspected that defendant was involved in shootings because of locations involved, and
after second shooting, police obtained positive identifications of defendant and his accomplice; moreover, accomplice was arrested in
casino of hotel, and confirmed that he and defendant were associates, and that they were at the place where second cab driver picked
up his last ride. U.S.C.A.Const. amend. 4.
6. Arrest.
Warrantless arrest of defendant in his hotel room was justified by exigent circumstances, where police had reasonable belief that
defendant was in hotel room and had possession of weapon used in two shootings. U.S.C.A.Const. amend. 4.
7. Criminal Law.
Granting of motion to continue is within sound discretion of trial court.
8. Criminal Law.
When motion to continue is brought for purpose of producing a witness, trial court is to consider whether facts can be proven by
another available witness.
9. Criminal Law.
Trial court did not abuse its discretion in denying defendant's motion for continuance which defendant sought in order to contact
certain witnesses; facts sought to be proven through testimony of absent witnesses were not essential to defendant's defense; moreover,
neither full names of witnesses nor their locations were known to defense counsel, and even if witnesses had been found, their
testimony would not have exculpated defendant.
10. Criminal Law.
It is not error for court to refuse an instruction when law in that instruction is adequately covered by another instruction given to
the jury.
11. Criminal Law.
Where instruction actually given adequately covered the law with respect to mere presence, trial court did not err in failing to
give defendant's proposed instruction on subject of mere presence, which differed from instruction given only with respect to
inclusion of the word even.
12. Criminal Law.
Determination of culpability necessary for imposition of death penalty under the eighth amendment can be made at any point, and
determination need not be made by the jury. U.S.C.A.Const. amend. 8.
13. Criminal Law.
To receive a death sentence under the eighth amendment, defendant must have, himself, killed, attempted to kill, intended that a
killing take place, intended that lethal force be employed, or have participated in a felony while exhibiting a reckless indifference to
human life. U.S.C.A.Const. amend. 8.
14. Criminal Law.
Evidence was sufficient to find that defendant possessed reckless disregard for human life and intended killing to take place when
he participated in robbery and shooting of cab driver, satisfying culpability requirement for imposition of death penalty under the
eighth amendment; defendant obtained weapon which was used in shooting and in prior shooting of another cab driver; he actively
participated in both robberies, acting as a shill in second robbery; moreover, because second robbery was similar to first and defendant
knew that accomplice had used deadly force in prior crime, defendant was aware that deadly force would be used in perpetration of
second robbery. U.S.C.A.Const. amend. 8.
OPINION
During a ten-day period, appellant Marvin Lewis Doleman was involved in the robbery
and shooting of two cab drivers in Las Vegas. Appellant was convicted of two counts of
armed robbery, one count of attempted murder and one count of murder in the first
degree.
one count of attempted murder and one count of murder in the first degree. On the murder
conviction, appellant was sentenced to death. On appeal, appellant generally challenges all
four convictions and specifically challenges the sentence of death.
On the evening of January 9, 1990, in Las Vegas, a cab driver was shot in the head three
times and robbed by two young black males. The cab driver survived the gunshot wounds. On
the morning of January 19, 1990, in Las Vegas another cab driver was shot twice in the head
and robbed by two young black men. This cab driver died on January 20, 1990, as a result of
the gunshot wounds.
On January 19, 1990, based upon information received from an informant, the police
believed that appellant and Frederick Paine were involved in the shooting of the two cab
drivers and that the two men were staying at the Continental Hotel. Detective Carl Cassell of
the Las Vegas Metropolitan Police Department (Metro) testified that he went to the
Continental Hotel looking for Paine and appellant because he had been informed that the two
men had been identified as suspects in the robbery and shooting of the cab drivers. Cassell
also testified that he could not remember who gave him this information. While talking with
hotel security guards at the Continental Hotel, Cassell and another detective noticed Paine
enter the casino. After Paine sat down in front of a slot machine, the detectives approached
him and arrested him. Paine informed the detectives that appellant was in room 3206 of the
hotel.
After notifying Metro that he had Paine in custody, Cassell and the other detective went to
room 3206 along with two hotel security guards. Paine was left in the custody of another
hotel security guard. Without a warrant, the four men then entered room 3206 unannounced
with a pass key. Appellant was found in the room and immediately arrested, at which time he
stated, You have got the wrong guy. Freddie did it. After being informed of his rights,
appellant stated that Freddie had come to the room earlier that morning with $50.00 from a
robbery.
Detective Cassell testified that he decided to enter the room immediately and unannounced
because there was supposed to be an armed and dangerous person who had shot and robbed
at least one person earlier that day, the safety of the guests in the hotel had to be considered.
He also testified that the fact that they had just learned of appellant's whereabouts made it a
pursuit type immediate follow-up situation and it was also Friday afternoon which means it
was very difficult to reach certain members of the system. Cassell was also concerned
about the existence of a weapon in the room. He stated that they went in unannounced so
that they would not "further arm or alarm the person inside."
went in unannounced so that they would not further arm or alarm the person inside. Cassell
testified that he believed that prior to entering the room he asked Paine where the gun was
and Paine told him it was in the room.
[Headnotes 1, 2]
Appellant first contends that his arrest was illegal and that, therefore, all evidence obtained
as a result of the arrest was improperly admitted at trial. Appellant was arrested in his hotel
room without a warrant. The fourth amendment to the United States Constitution forbids
unreasonable searches and seizures. Warrantless searches and seizures in a home are
presumptively unreasonable. Payton v. New York, 445 U.S. 573, 587 (1980).
1
However,
warrantless searches are permitted if based upon both probable cause and exigent
circumstances. Id. at 588-590.
Appellant maintains that police lacked probable cause to arrest him and that there was no
exigent circumstance to justify entry into his hotel room. Based upon this, appellant argues
that all evidence subsequently acquired must be suppressed. We disagree.
[Headnote 3]
Probable cause to conduct a warrantless arrest exists when police have reasonably
trustworthy information of facts and circumstances that are sufficient in themselves to
warrant a person of reasonable caution to believe that an offense has been or is being
committed by the person to be arrested. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v.
United States, 338 U.S. 160, 175-176 (1949); Carroll v. United States, 267 U.S. 132, 162
(1925).
Appellant argues that the police officer's decision to enter the hotel room and arrest him
was not based upon valid information. He contends that there was no evidence to connect him
or Paine with the shooting of the cab drivers. Appellant further contends that, because the
police officer could not remember who told him that appellant and Paine were involved in the
second shooting, he did not have sufficient evidence to arrest appellant.
[Headnote 4]
Probable cause is not based on the knowledge of a specific police officer but is based on
the collective knowledge of all the officers involved. United States v. Briley, 726 F.2d 1301,
1305 (8th Cir. 1984) (citing United States v. Rose, 541 F.2d 750, 756 {Sth Cir.
__________

1
In United States v. Diaz, 814 F.2d 454 (7th Cir. 1987), cert. denied, 484 U.S. 857 (1987), it was made
clear that the rule from Payton applies to hotel rooms as well as private homes.
(8th Cir. 1976), cert. denied, 430 U.S. 908 (1977)). In the instant case there were numerous
facts and circumstances known to the police which linked appellant to the crimes.
[Headnote 5]
First, because of the similarity between the two shooting-robberies, it was logical for the
police to suspect that the crimes were committed by the same men. The police knew that two
young black men were involved in the January 9 incident, and they knew that two young
black men had been seen at the scene of the January 19 incident.
An informant, who knew Paine and appellant through a mutual acquaintance, told the
police on January 18, 1990, that she suspected that Paine and appellant were involved in the
January 9 shooting based upon the two locations involved and the fact that she connected
Paine and appellant with the locations. On January 19, 1990, after the second shooting, the
police obtained positive identifications of both Paine and appellant, connecting them with the
shootings. Appellant was identified by a witness who had seen him in the vicinity of the
second shooting at the time of the shooting.
After arriving at the Continental Hotel, the place where the second cab driver picked up
his last ride, the police saw Paine enter the casino. After being arrested Paine informed the
police that appellant was in a room in the hotel. This confirmed that Paine and appellant were
associates and that they were at the place where the second cab driver picked up his last ride.
Although Detective Cassell may not have been specifically aware of each and every one of
these facts, collectively the police involved in this investigation were aware of sufficient facts
and circumstances to warrant a person of reasonable caution to believe that a crime had been
committed and that appellant had participated in its commission. The police did possess
probable cause to arrest appellant.
[Headnote 6]
For the arrest of appellant in his hotel room to be justified it must also be found that
exigent circumstances existed at the time of arrest. Exigent circumstances are those
circumstances that would cause a reasonable person to believe that entry (or other relevant
prompt action) was necessary to prevent physical harm to the officers and other persons, the
destruction of relevant evidence, the escape of the suspect, or some other consequence
improperly frustrating legitimate law enforcement efforts. United States v. MaConney, 728
F.2d 1195, 1199 (9th Cir. 1984) (en banc) cert. denied, 469 U.S. 824 (1984); see also United
States v. Good, 7S0 F.2d 773, 775 {9th Cir. 19S6) {citing United States v. Manfredi, 722
F.2d 519, 522 {9th Cir.
States v. Good, 780 F.2d 773, 775 (9th Cir. 1986) (citing United States v. Manfredi, 722 F.2d
519, 522 (9th Cir. 1983)).
In the instant case, Detective Cassell testified that he believed there was an armed and
dangerous man in the room that had shot and robbed at least one person that day. He stated
that he was concerned about the existence of a weapon in the room and about the safety of the
other hotel guests. Cassell also testified that he did not attempt to obtain a warrant because it
was around 5:00 p.m. on Friday afternoon, and it would have been very difficult to obtain a
warrant at that time.
A recognized exigent circumstance in Nevada is the reasonable belief that there is an
urgent need to pursue an investigation which involves a substantial and imminent threat of
death or bodily injury. Johnson v. State, 97 Nev. 621, 624, 637 P.2d 1209, 1211 (1981). This
exigent circumstance was first recognized in State v. Hardin, 90 Nev. 10, 518 P.2d 151
(1974), in which the police, after learning that a murder suspect had entered a particular hotel
room, entered the room with a pass key after knocking on the door elicited no response.
Various evidence of the murder was found in the room and eventually found to be admissible
by this court based upon the fact that the violent homicide reasonably justified fears that the
suspect posed a substantial threat of imminent harm to others. Id. at 15-16, 518 P.2d at 154.
Exigent circumstances were also found in Banks v. State, 94 Nev. 90, 575 P.2d 592
(1978). In Banks, police, while in pursuit of armed robbery suspects, entered an apartment
where they had reason to believe the suspect and a weapon were located. They entered after
seven people had come out of the apartment; none of them armed. This court concluded that
the police had ample grounds . . . for the belief that urgent action was necessary to
investigate and possibly prevent a substantial threat to their own safety as well as that of
others in the vicinity. Id. at 97, 575 P.2d at 596.
In Koza v. State, 100 Nev. 245, 681 P.2d 44 (1984), we again found exigent
circumstances. In Koza police had information that the occupants of a hotel room possessed a
gun and were planning a robbery. Police observed the room and saw a man leave the room
and then return with a woman. The police knocked on the door and said that they wished to
question the occupant, at which point they heard the sliding action of an automatic weapon.
Eventually the man and woman exited the room. The police then entered the room to insure
that there was not another person in the room who could use the unaccounted for weapon. In
the room, police found a weapon in plain view.
We held that under those circumstances the officers had reasonable grounds to believe that
another accomplice might still be in the room and that an urgent need existed to preserve the
life of a possible robbery victim or their own lives. Id. at 253, 681 P.2d at 49.
Based upon the relevant Nevada case law, exigent circumstances did exist in the instant
case. The police had a reasonable belief that appellant was in the hotel room and had
possession of the weapon used in the two shootings. It was reasonable for the police to
believe that quick action was necessary in order to prevent possible danger as a result of
appellant still being in possession of the gun.
Because the police possessed probable cause and because exigent circumstances existed,
the arrest of appellant was proper. The evidence discovered subsequently was correctly
admitted at trial.
[Headnotes 7, 8]
Appellant next contends that the trial court erred in denying his motion for a continuance
in order to contact certain witnesses. It is well settled that the granting of a motion to continue
is within the sound discretion of the trial court. McCabe v. State, 98 Nev. 604, 655 P.2d 536
(1982); Johnson v. State, 90 Nev. 352, 526 P.2d 696 (1974). When a motion to continue is
brought for the purpose of producing a witness, the trial court is to consider whether the facts
can be proven by another available witness. Banks, 101 Nev. at 773, 710 P.2d at 725.
[Headnote 9]
The facts sought to be proven through the testimony of the absent witnesses were not
essential to appellant's defense. Also, neither of the witnesses' full names nor their locations
were known to defense counsel. Even if the alleged witnesses had been found, their testimony
would not have exculpated appellant. Under the rationale of Banks the trial court did not
abuse its discretion in denying appellant's motion for a continuance.
[Headnotes 10, 11]
Appellant also contends that the trial court erred in not giving appellant's proposed jury
instruction with respect to mere presence. A jury instruction was given on the subject of
mere presence. The only difference between the instruction given and appellant's proposed
instruction was that the proposed instruction included the word even while the instruction
given did not. It is not error for a court to refuse an instruction when the law in that
instruction is adequately covered by another instruction given to the jury. Givens v. State, 98
Nev. 573, 578, 655 P.2d 533, 536 (1978) (citations omitted). The instruction actually given
adequately covered the law with respect to "mere presence," therefore the trial court did
not err in failing to give appellant's proposed instruction.
given adequately covered the law with respect to mere presence, therefore the trial court did
not err in failing to give appellant's proposed instruction.
Finally, appellant maintains that the death penalty was improperly imposed because errors
were made with respect to the penalty phase of his trial. We agree that one error occurred at
the penalty phase, this being that no culpability determination was made as to appellant's
involvement in the killing. While the requisite culpability determination was not made by the
jury or the district court, we conclude that we can make this determination from the record in
this case and have done so in the course of our review.
The United States Supreme Court has held that it is improper under the eight amendment
to impose the death penalty on one who does not himself kill, attempt to kill, or intend that a
killing take place or that lethal force will be employed. Enmund v. Florida, 458 U.S. 782,
797 (1981). In Enmund, the Court over-turned a death sentence for felony murder because
there was no proof that Enmund possessed the degree of culpability warranting the death
penalty. Id. at 801. In Tison v. Arizona, 481 U.S. 137 (1987), the Court discussed Enmund,
holding that major participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the Enmund culpability requirement. Id. at
158.
[Headnote 12]
The jury was instructed on various theories of first degree murder including premeditation
and felony murder.
2
The jury was also instructed on aiding and abetting with respect to all
felonies.
3
Appellant contends that because no special verdicts were given to the jury the
Enmund determination of culpability was never made. This Enmund determination can be
made at any point, and the determination need not be made by the jury. Cabana v. Bullock,
474 U.S. 376, 386-387 (1986). Relying upon Cabana, the State argues that the jury need not
make the Enmund determination.
__________

2
Jury Instruction No. 17 provides: Murder of the first degree is murder which is (a) perpetrated by any kind
of willful, deliberate and premeditated killing, or (b) committed in the perpetration or attempted perpetration of a
Robbery.

3
Jury Instruction No. 27 provides:
Every person concerned in the commission of a felony, whether he directly commits the act
constituting the offense, or aids or abets in its commission, and whether present or absent; and every
person who, directly or indirectly, counsels, encourages, hires, commands, induces or otherwise procures
another to commit a felony is a principal, and shall be proceeded against and punished as such.
nation. The State also insists that there is sufficient evidence for this court to make the
Enmund determination.
4

[Headnotes 13, 14]
Although we here emphasize our preference that culpability decisions be made by juries
based upon the trial evidence rather than on appellate review of a cold record, we have no
reservation about making the culpability determination in this case. To receive the death
sentence, appellant must have, himself, killed, attempted to kill, intended that a killing take
place, intended that lethal force be employed or participated in a felony while exhibiting a
reckless indifference to human life. The record contains ample evidence that appellant
possessed a reckless disregard for human life when he participated in the robbery-shooting on
January 19, 1990, and that he intended a killing to take place. He obtained the weapon which
was used in both shootings. He actively participated in both robberies, apparently acting as a
shill in the robbery of January 19. Because the second robbery was so similar to the first and
appellant knew Paine had used deadly force in the prior crime, it is obvious that appellant was
aware that deadly force would be used in the perpetration of the January 19th robbery.
Therefore, we conclude that appellant was an integral part of the crimes committed on
January 19, 1990, and directly culpable in the killing of Kenneth Marcum.
Whenever the sentence of death is imposed, this court must review whether the sentence is
excessive considering both the crime and the defendant. NRS 177.055(2)(d). We conclude
that, given the appellant and the facts of this crime, the imposition of the death sentence was
not excessive.
Accordingly, we affirm appellant's convictions and the sentence of death imposed on him.
Springer, J., concurring in part and dissenting in part:
I join in the majority's opinion with respect to the guilt phase, but I cannot agree with the
court's conclusion regarding the penalty phase of this case. Under Enmund v. Florida, 458
U.S. 782, 797 (1981), a factual determination must be made in every death penalty case as to
defendant's culpability. This court is not in the fact-finding business, and thus I would never
allow a culpability determination to be made on appeal.
__________

4
The State makes this contention on page 46 of its reply brief, as follows:
The Defendant's claim that the lack of an Enmund determination by the jury was unconstitutional is
clearly contrary to Cabana, and should be rejected. If this Court looks to the facts of the case, it is
apparent that the Defendant possessed a reckless disregard for human life when he participated in the
robbery-shooting of January 19, 1990.
culpability determination to be made on appeal. Even if I were willing to make culpability
determinations on appeal, however, I would not be willing to do so in this case. Despite the
majority's assertion to the contrary, Doleman's culpability was not obvious. Appellant did
not pull the trigger, and indeed, may not have even been present at the time of the shooting.
Such a close factual issue should not be determined summarily on the basis of a lifeless
record, but rather should be decided at the district court level, where questions of fact are
generally adjudicated. Accordingly, I would remand this case for a new penalty hearing in
which Doleman's culpability would be addressed by an appropriate finder of fact.
____________
107 Nev. 419, 419 (1991) Woods v. Label Investment Corp.
VIRGINIA L. WOODS, TIMOTHY J. TERRELL AND SUSAN E. TERRELL, Appellants,
v. LABEL INVESTMENT CORPORATION, COLD SPRINGS DEVELOPMENT
CORPORATION, LEON SCHNEIDER, WESTERN HORIZON REALTY; RAY
FARWELL, ESTATE OF JOHN ARDEN, Respondents.
No. 20730
June 6, 1991 812 P.2d 1293
Appeal from district court judgment in favor of respondents in a suit for negligent
misrepresentation and breach of contract. Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Mobile home lot purchaser's action against vendor and vendor's officer/shareholder,
arising from boundary dispute, was consolidated with action by purchasers of adjoining lot
against vendor of adjoining lot and vendor's agent. The district court entered judgment in
favor of defendants, and purchasers appealed. The supreme court held that: (1) neighbor's
comment put purchaser on notice of boundary dispute, so as to commence running of
limitations period; (2) district court did not abuse its discretion in permitting trial to take
place and in evaluating plaintiff's testimony, regardless of any facts initially deemed to be
admitted by defendants' failure to timely respond to requests for admissions; (3) purchasers
did not reasonably rely upon any misrepresentations by vendor or vendor's agent concerning
boundaries of property; but (4) district court should not have awarded attorney fees to vendor
of adjoining lot or vendor's agent.
Affirmed in part; reversed in part.
Jonathan H. King, Reno, for Appellants.
Roger Wright, Reno, for Respondents Label Investment Corporation and Leon Schneider.
Bible, Hoy, Miller, Trachok & Wadhams and Sam Benevento, Reno, for Respondent Cold
Springs Development Corporation.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, Reno, for
Respondents Western Horizon Realty and Ray Farwell.
Gregory F. Wilson, Reno, for Respondent Estate of John Arden.
Statute of limitations with respect to real property damage begins to accrue when plaintiff knows or has reason to know facts
constituting elements of cause of action. NRS 11.190.
Issue of whether warning from neighbor concerning boundary line dispute would put reasonable person on inquiry so as to
commence running of limitations period was question of fact as to which trial court's determinations would not be disturbed unless
clearly erroneous. NRS 11.190.
Mobile home lot purchaser's neighbor, by informing purchaser of possible problem concerning boundary line, put purchaser on
notice of boundary dispute, so as to commence running of limitations period. NRS 11.190.
Where demand is made upon party for admission of facts and such party fails to respond to request, matters contained therein are
deemed admitted. NRCP 36.
District court has discretion with respect to accepting as true request for admission to which late response is filed. NRCP 36.
District court did not abuse its discretion in permitting trial to take place and in evaluating plaintiff's testimony, regardless of any
facts initially deemed to be admitted by defendants' failure to timely respond to requests for admissions, as there was no evidence in
record of any ruling on late responses, and plaintiff did not raise issue at trial. NRCP 36.
Vendor generally has duty to inform herself of true boundaries of land she seeks to sell, but vendor is not held to this responsibility
if purchaser has information which would serve as red light to any normal person of her intelligence and experience that boundaries
are uncertain or that he or she should not rely on vendor to accurately describe property.
If purchaser is aware of facts from which reasonable person would be alerted to make further inquiry concerning boundaries of
property, he or she has duty to investigate further and is not justified in relying on vendor's description of property.
Mobile home lot purchasers did not reasonably rely upon any misrepresentations by vendor or vendor's agent concerning
boundaries of property in light of red lights indicating that purchasers should have either asked vendor to stake boundaries or to
obtain proper survey; no pins or stakes were found on lot to indicate boundaries, neighbor informed purchasers of possible boundary
problem prior to placement of their home, and agent told purchasers that he was unsure of boundaries and that they should be checked
out prior to installation of home.
10. Boundaries.
Attorney fee should not have been awarded to vendor's agent, who prevailed in action brought by mobile home lot purchasers
arising from boundary dispute, as there was no money judgment awarded and no evidence that complaint was brought without
reasonable grounds or to harass. NRS 18.010, subd. 2(a), (b).
11. Costs.
Attorney fees cannot be recovered unless authorized by agreement or by statute or rule. NRS 18.010.
12. Boundaries.
Promissory note payable by purchasers of mobile home lot to vendor only allowed attorney fees for collection on note and, thus,
would not support attorney fee award in purchasers' action against vendor in connection with a boundary line dispute.
13. Costs.
Supreme court may award attorney fees where appellant raises no new legal arguments or where appeal is frivolous. NRAP 38.
14. Costs.
Mobile home lot purchasers' action against vendor for negligent misrepresentation and breach of contract arising from boundary
dispute was brought in good faith and purchasers' appeal from adverse judgment was not frivolous and, thus, purchasers would not be
required to pay vendor's attorney fees for appeal. NRAP 38.
OPINION
Per Curiam:
On April 3, 1978, appellant Virginia Woods purchased a mobile home lot (Lot 47) from
Label Investment Corporation (Label) and Schneider, an officer and shareholder of Label.
According to Woods, she made the purchase in reliance upon the Subdivision Tract Map
provided in the Contract of Sale. The map shows a fifteen foot wide portion of Woods'
property, running along the southern boundary line, to contain an easement for half a drainage
ditch, with the other half of the ditch on the other side of the boundary line on Lot 46. The
ditch was dug, constructed and located by respondents Cold Springs and John Arden, now
deceased, an officer and shareholder of Cold Springs.
and located by respondents Cold Springs and John Arden, now deceased, an officer and
shareholder of Cold Springs. The map also depicts a power pole and service pole running
along the northern boundary line between Lot 47 and Lot 46.
Woods had her mobile home set on her lot in a position with the lot boundary as she
believed it to be, with a sufficient set-back distance from the boundary line in accordance
with local law. On some date after Woods moved into her home, she had a conversation with
a Mr. Sheerman, the then owner of Lot 46. He advised her that there was a serious boundary
problem and that one of them would have to move. Although there is no evidence of the exact
date of this conversation, the district court found that it was sometime prior to April 5, 1979,
when Sheerman quitclaimed his lot to Cold Springs and moved out.
Elmer Plummer, a registered land surveyor, testified at trial that on March 15, 1985, he did
a boundary and topo survey of Woods' property. Using monuments, he determined that the
ditch was constructed north of the official easement depicted in the plat map. He revealed to
Woods that the entire thirty foot ditch is within her property, above the southern boundary
line. He also informed her that the northern boundary line was not where the map showed it
to be, along the line of the power pole and service pole, and that her lot encroached upon Lot
46 by 2.96 feet.
Meanwhile, in the summer of 1983, appellants Timothy and Susan Terrell contacted
respondent Ray Farwell, a salesman for respondent Western Horizon Realty and agent of
Cold Springs, concerning a lot for their mobile home. They went with Farwell to the Cold
Springs office and arranged to view Lot 46, which Cold Springs owned. Farwell obtained a
plat map which was the same or similar to the map Woods relied on in purchasing her lot and
home.
Farwell testified that after showing the Terrells several properties, he took them to Reno
Park to show them Lot 46. First, he looked for some official markers on the lot, but he could
not find any. He says he did not make any definite representations to the Terrells as to the
boundaries because he could not find them himself. He used the map to pace off the
boundaries. However, he cautioned the Terrells to be sure of the boundaries before setting up
their mobile home. Woods also testified that she informed the Terrells of the problem before
they placed their mobile home.
Mr. Terrell testified that on at least two of their initial visits to the property, Farwell
walked the boundaries and showed him that the two telephone poles were the boundary lines.
However, he does not remember if Farwell ever cautioned him with regard to the boundaries
or warned him to be sure of the boundaries before placing the mobile home. Mr. Terrell
presented the plat map to the county and requested a building permit. Mr. Terrell says he
placed his home in reliance on Farwell's pacing, the plat map, the location of Woods'
home, his own observations {planted vegetation by Woods and the granite fill), and
common usage of the light pole, which had water meters for each lot.
placing the mobile home. Mr. Terrell presented the plat map to the county and requested a
building permit. Mr. Terrell says he placed his home in reliance on Farwell's pacing, the plat
map, the location of Woods' home, his own observations (planted vegetation by Woods and
the granite fill), and common usage of the light pole, which had water meters for each lot.
The map indicated that the southern boundary of the mobile home went through the first
telephone pole and terminated at the second one. He admits that he never requested a survey
of the property and he did not do the measurements in 1983 because of the expense. Then, in
October of 1984, when he wanted to put up a fence, he measured the land using survey
monuments, a tape measure, and string.
On September 10, 1986, Plummer surveyed the Terrells' property. He found no stakes on
the property, and he determined that the ditch was not within its easement as depicted on the
plat and that the existing ditch was fifteen feet to the north of where its easement would be.
Plummer also testified that if he were to place a mobile home on this property, he would go
back to the official plat map and measure. He would not rely on existing improvements, such
as ditches, power poles, or buildings on the property.
On May 2, 1985, Woods filed a complaint against Label and Schneider. On September 10,
1985, the Terrells filed a complaint against Cold Springs and Farwell. Because both
complaints concerned contiguous boundary line conflicts, the cases were consolidated by
Order filed October 1, 1987. On June 16, 1987, Woods' attorney filed notice that certain
requested admissions regarding the notice issue were deemed admitted because the
respondents failed to respond. On November 5, 1987, Label and Schneider filed answers and
denials to the requested admissions, stating that they did not admit that Woods had no notice
of the claim and explaining to the court why their answers were late.
After a trial, the district court found that Woods' claim was barred by the statute of
limitations, and it entered judgment in favor of the respondents, requiring appellant to pay
costs of suit. As to the Terrells' complaint, the court found that if any of Farwell's conduct can
be deemed a negligent misrepresentation, the Terrells were not reasonably justified in relying
on such conduct. Finally, the court concluded that there was no breach of contract, and it
awarded $2,000 in attorney fees to Farwell and $5,000 to Cold Springs under NRS 18.010.
WOODS' CLAIM
Woods argues that the district court erred in determining that her complaint was barred by
the statute of limitations. She contends that until the survey report was completed, she did
not know or have reason to know that the boundary lines had been misrepresented.
tends that until the survey report was completed, she did not know or have reason to know
that the boundary lines had been misrepresented. Woods also asserts that her requests for
admissions were deemed admitted, and therefore, the respondents were precluded from
raising the statute of limitations issue at trial. For the reasons discussed below, we conclude
that the court did not err.
A. NOTICE
Woods testified that she had an inkling that her trailer was not located entirely upon her
own premises when Mr. Sheerman came and told her that something was all messed up. He
told her it looked like her front room was eight feet into his property, and if he put up his
fence, it would go right down the middle of her front room. Woods says she cried for a couple
of days, but she did not have money to obtain a lawyer, so she put it off. On December 5,
1984, she retained her attorney, and upon his advice, the survey was prepared on March 15,
1985.
The district court found that the statute of limitations began to run on Woods' cause of
action when Mr. Sheerman notified her of the boundary dispute sometime before he moved
out on April 5, 1979. Because Woods filed her complaint on May 2, 1985, more than six
years after April 5, 1979, the court found that her complaint was time-barred.
[Headnote 1]
The statute of limitations with respect to real property damage begins to accrue when the
plaintiff knows or has reason to know facts constituting the elements of a cause of action.
Oak Grove Investors v. Bell & Gossett Company, 99 Nev. 616, 623, 668 P.2d 1075, 1080
(1983). NRS 11.190 provides a six year limitation period for contract actions and a two year
limitation on tort actions. Therefore, if Woods had notice prior to May 3, 1979, her complaint
would be barred.
[Headnotes 2, 3]
The issue of whether a warning from a neighbor would put a reasonable person on inquiry
is a question of fact, and the district court's factual determinations will not be disturbed unless
clearly erroneous. Ormachea v. Ormachea, 67 Nev. 273, 280, 217 P.2d 355, 359 (1950).
There is evidence in the record that Sheerman informed Woods of the possible problem
before he sold his lot. Therefore, we conclude that the court did not err in determining that
Sheerman's comments to Woods put her on notice of a boundary dispute and that the
conversation took place before May 3, 1979.
B. ADMISSIONS
Woods argues that the requests for admissions were deemed admitted because the
respondents failed to answer in a timely fashion.
[Headnotes 4-6]
Where demand is made upon a party for admission of facts and such party fails to respond
to the request, matters contained therein are deemed admitted. Dzack v. Marshall, 80 Nev.
345, 393 P.2d 610 (1964); NRCP 36. However, the district court has discretion with respect
to accepting as true a request for admission to which a late response is filed. See Wagner v.
Carex Investigations & Sec., 93 Nev. 627, 572 P.2d 921 (1977). Exercising its discretion, the
district court chose to hear testimony and determine the merits of the case. There is no
evidence in the record of any ruling on the late responses, and Woods did not raise the issue
at trial. Therefore, we conclude that the district court did not abuse its discretion in permitting
the trial to take place and in evaluating Woods' testimony, regardless of any facts initially
deemed to be admitted by respondents' failure to timely respond to requests for admissions.
THE TERRELLS' CLAIMS
The Terrells argue that the district court erred in denying them relief for negligent
misrepresentation and breach of contract and in awarding attorney's fees to the respondents.
They contend that they reasonably relied on Cold Springs and Farwell's misrepresentations,
and as a result, they will have to move their home. The district court found that Farwell
expressly advised the Terrells not to proceed any further with the acquisition until the actual
boundaries could be determined, and that Farwell's claim that he gave these warnings seems
eminently reasonable, considering that neither he nor the Terrells were able to locate any
pins or stakes to show the lot line boundaries. The court also found that the Terrells were put
on actual notice when Woods advised them that a potential dispute existed and that they
unreasonably relied on extrinsic features such as power poles, ditches, and neighboring
improvements in subsequently making a determination as to where to place their home.
[Headnotes 7, 8]
In Stone v. Farnell, 239 F.2d 750 (9th Cir. 1957), the court held that the owner of real
property is under a duty to inform herself of the true boundaries of land she seeks to sell, and
any breach of this duty and misrepresentation of the true boundaries in the sale of property
constitutes constructive fraud. The seller of real property generally does have such a duty.
of real property generally does have such a duty. See Fuller v. Incopero, 97 Nev. 448, 634,
P.2d 452 (1981) (while evidence was sufficient to support inference that vendor and agent
negligently failed to ascertain true dimensions of property in question and fraudulently
misrepresented dimensions to purchasers, evidence was not sufficient to justify award of
punitive damages). See also Murphee v. Rawlings, 479 P.2d 139 (Wash. 1970); Weinstein v.
Sprecher, 467 P.2d 890 (Wash. 1970). However, the seller is not held to this responsibility if
the purchaser has information which would serve as a red light to any normal person of her
intelligence and experience that the boundaries are uncertain or that he or she should not rely
on the seller to accurately describe the property. If the purchaser is aware of facts from which
a reasonable person would be alerted to make further inquiry, then he or she has a duty to
investigate further and is not justified in relying on the seller's description of the property.
Collins v. Burns, 103 Nev. 394, 397, 741 P.2d 819, 821 (1987).
[Headnote 9]
The Terrells had the following red lights indicating that they should have either asked
the seller to stake the boundaries or obtain a proper survey: (1) Neither Farwell nor the
Terrells found any pins or stakes on the lot to indicate boundaries; (2) Woods informed the
Terrells of a possible boundary problem prior to the placement of their home; and (3) Farwell
told the Terrells that he was unsure of the boundaries and that they should be checked out
before their home is installed. We conclude that the district court did not err in finding that
the Terrells did not reasonably rely on any of the respondents' misrepresentations.
[Headnotes 10, 11]
Next, the Terrells contend that the district court erred in awarding Farwell attorney's fees
pursuant to NRS 18.010. We agree. In Nevada, attorney's fees cannot be recovered unless
authorized by agreement or by statute or rule. Young v. Nevada Title Co., 103 Nev. 436, 744
P.2d 902 (1987). NRS 18.010 provides in pertinent part:
2. In addition to the cases where an allowance is authorized by specific statute, the
court may make an allowance of attorney's fees to a prevailing party:
(a) When he has not recovered more than $20,000; or
(b) Without regard to the recovery sought, when the court finds that the claim,
counterclaim, cross-claim or third-party complaint or defense of the opposing party was
brought without reasonable ground or to harass the prevailing party . . . .
The court did not specifically state whether it was basing its award on NRS 1S.010{2){a)
or 1S.010{2){b).
award on NRS 18.010(2)(a) or 18.010(2)(b). If the award was based on NRS 18.010(2)(a),
then it was improper because a money judgment is a prerequisite to an award of attorney's
fees under this subsection. Key Bank v. Donnels, 106 Nev. 49, 787 P.2d 382 (1990). If the
district court based the award on NRS 18.010(2)(b), then it was also improper, because there
is no evidence in the record that the complaint was brought without reasonable grounds or to
harass the other party. Therefore, we conclude that the district court abused its discretion in
awarding Farwell attorney's fees.
[Headnote 12]
The Terrells also contend that the district court erred in awarding attorney's fees to
respondent Cold Springs. We agree. The district court awarded attorney's fees without citing
any authority. In its Supplemental Points and Authorities, Cold Springs concedes that the
award was not proper under NRS 18.010 but asserts that the award is supportable based on
the provision in a promissory note payable by the Terrells to Cold Springs. However, the
promissory note only allows attorney's fees for collection on the note and is therefore not
applicable in this case.
[Headnotes 13, 14]
Cold Springs argues that the Terrells should be required to pay their attorney's fees for this
appeal. This court may award attorney's fees where the appellant raises no new legal
arguments or when an appeal is frivolous. In re Herrmann, 100 Nev. 149, 679 P.2d 246
(1984). NRAP 38. After review of the record, we conclude that the Terrells brought this claim
in good faith and that it was not a frivolous appeal. Therefore, Cold Springs must pay its own
attorney's fees.
The award of attorney's fees is hereby reversed and each party is ordered to pay his or her
own attorney's fees. The district court decision is otherwise affirmed.
____________
107 Nev. 428, 428 (1991) Nevada Power v. Clark County
NEVADA POWER COMPANY, a Nevada Corporation, and THOMAS ENGEL,
Appellants, v. CLARK COUNTY, Respondent.
No. 20562
June 13, 1991 813 P.2d 477
Appeal from an order dismissing a third-party complaint. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Driver injured in automobile accident brought suit against other driver and his employer.
Defendants filed third-party complaint against the county, claiming that accident was caused
by lack of traffic control devices at intersection. The district court dismissed third-party
complaint, and defendants appealed. The supreme court, Rose, J., held that municipality's
failure to place traffic signal at intersection was a discretionary act, and municipality was
immune from liability.
Affirmed.
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel Polsenberg, Las Vegas, for
Appellants.
Edwards, Hunt, Hale & Hansen, and Trevor L. Atkin, Las Vegas, for Respondent.
Automobiles.
Municipality's failure to place traffic signal at intersection was a discretionary act, and municipality was immune from liability for
accident allegedly caused by lack of traffic control devices at intersection. NRS 41.032.
OPINION
Nevada Power Company (Nevada Power) sought indemnity from Clark County when an
injured party claimed that the lack of a traffic signal proximately caused an automobile
accident. The district court dismissed the third-party complaint because Clark County was
immune from suit pursuant to NRS 41.032(2). We conclude that the decision to place traffic
signals at a newly constructed or existing intersection or road is a discretionary function and
the municipality is immune from liability pursuant to NRS 41.032(2).
FACTS
Thomas Engel (Engel) was operating a vehicle that belonged to Nevada Power, his
employer, when he collided with a vehicle driven by Linda Allen. The accident occurred on
November 13, 1976, in the intersection of Claymont Street and Flamingo Road in Las Vegas,
Nevada. Linda Allen filed a suit against Engel and Nevada Power for personal injuries she
sustained as a result of the accident.
Nevada Power and Engel brought a third-party complaint against Clark County. They
claimed that the accident was caused by the lack of traffic control devices at the intersection,
and that Clark County knew of the danger because it had received reports of numerous
accidents that had occurred at that same intersection. The third-party plaintiff sought
indemnity from Clark County for any damages it might be required to pay Linda Allen.
Clark County filed a motion to dismiss the third-party complaint, claiming that the
construction and implementation of traffic control devices is a discretionary act for which
NRS 41.032 affords governmental immunity to the county. For that reason, the district court
granted Clark County's motion.
LEGAL DISCUSSION
We have twice commented on whether the failure to install a traffic signal can be the basis
for a suit against a municipality following an accident. Crucil v. Carson City, 95 Nev. 583,
600 P.2d 216 (1979); LaFever v. City of Sparks, 88 Nev. 282, 496 P.2d 750 (1972). These
cases involved automobile accidents which occurred because traffic signals were knocked
down. In each, the plaintiff claimed the municipality was negligent in failing to replace the
fallen signal.
Although Crucil and LaFever are factually different from the case at hand, we clearly
stated as dicta that the failure to place a traffic signal at an intersection is a discretionary act.
Therefore, an accident resulting from the lack of such signal cannot be the basis for an action
against the local governmental entity. In LaFever, we stated that [a] governmental decision
to provide or not to provide traffic control cannot ground a cause of action, 88 Nev. at 284,
496 P.2d at 750, and in Crucil we restated this view:
While the respondent city's initial decision to provide traffic control was a discretionary
act, see LaFever v. City of Sparks, 88 Nev. 282, 496 P.2d 750 (1972), once the decision
to install the stop sign had been made and acted upon, the city's duty to maintain that
sign became an operational one. Thus, NRS 41.032(2) is not applicable.
95 Nev. at 585-586, 600 P.2d at 218.
We are not convinced otherwise by our holding in Foley v. City of Reno, 100 Nev. 307,
680 P.2d 975 (1984). In Foley, we stated:
The decision to construct the intersection and to install the crosswalk may have been a
discretionary decision, but once that decision was made the City was obligated to use
due care to make certain that the intersection met the standard of reasonable safety for
those who chose to use it.
100 Nev. at 309, 680 P.2d at 976 (emphasis added). In that case, we were concerned that in
the construction of the crosswalk, the city must meet reasonable safety standards. Use of the
word intersection in Foley might be misleading. The quoted language would state the
holding more precisely if it were to read, the City became obligated to use due care to make
certain that the pedestrian crosswalk met the standard of reasonable safety for those who
chose to use it. Therefore, Foley is not controlling in this case.
Nevada Power argues that even if the decision to install traffic controls at the construction
of an intersection is discretionary, that the municipality thereafter had an affirmative
nondiscretionary duty to install controls once it learned that the intersection is dangerous.
However, if we adopted such a rule, it would place and enormous burden on the
municipalities in this state. In rapidly growing areas, new traffic controls might be helpful at
many existing intersections. A municipality must determine what funds are available to install
traffic signals and where controls are needed most. Therefore, this is a matter where the
county must have discretion. If we adopted the reasoning of Nevada Power, we would place a
tremendous duty on our municipalities and abrogate the immunity given to them by NRS
41.032(2). This we decline to do.
Consistent with the above reasoning, we hold that the decisions concerning the traffic
controls at an intersection are discretionary. Municipalities are immune from liability based
on the failure to install those controls at either a newly constructed or an existing intersection.
The order of the district court is affirmed.
Steffen and Young, JJ., concur.
Questions of negligence are properly brought before a jury or finder-of-fact. The present
case never made it to a jury because the district court ruled that immunity barred the action.
The district court was wrong.
The present action centers around an accident that occurred at the intersection of Claymont
Street and Flamingo Road in Clark County, Nevada.
County, Nevada. Prior to the date of the accident, respondent, Clark County, received
numerous reports from the Las Vegas Metropolitan Police Department and the Nevada
Department of Transportation, as well as various citizens and groups of citizens, regarding
the hazardous nature of the intersection in question. Clark County ignored these reports. The
present accident ensued and appellants brought a third-party complaint against Clark County.
Clark County moved to dismiss the action based upon NRS 41.032(2) which confers
immunity to governmental entities for failure to exercise a discretionary function. Respondent
contended that the installation of traffic control devices was discretionary, even where the
intersection was known to be hazardous. The district court agreed.
I conclude that immunity is not present in the instant case. Determination as to whether
traffic control devices should be installed are essentially operational in nature. See Foley v.
City of Reno, 100 Nev. 307, 309, 680 P.2d 975, 976 (1984) (decision to construct intersection
discretionary, but once the decision was made, city was obligated to maintain standard of
reasonable safety); State v. Webster, 88 Nev. 690, 693-694, 504 P.2d 1316, 1319 (1972)
(once decision to construct controlled-access freeway was made, state had obligation to
maintain reasonable standard of safety); Harrigan v. City of Reno, 86 Nev. 678, 680, 475 P.2d
94, 95 (1970) (once having decided to construct parking lot, city was obligated to maintain
reasonable standard of safety). Since such decisions are operational rather than discretionary,
NRS 41.032(2) does not apply.
1

The issue of negligence should be presented to a jury. This is particularly true where the
city allegedly knew of the hazardous nature of the intersection and failed to take action. See
Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985) (immunity will not bar
actions based on the public entity's failure to act reasonably after learning of a hazard). To
cloak the city with immunity under such circumstances is unwise and unfair.
I would reverse the order of the district court and allow appellants to proceed on their
original cause of action.
I agree with the majority that a governmental decision to place or not to place a traffic
control device is a discretionary decision and veiled with immunity.
__________

1
The majority concludes that dicta in Crucil and LaFever bars suit against a municipality for failure to
install a traffic signal. However, Crucil merely cites to LaFever, and LaFever is inapplicable as it deals with
another issue entirely (mandatory assignment of a traffic control officer to direct traffic). Thus, the court is free
to adopt the more enlightened approach suggested by Foley, Webster, and Harrigan.
or not to place a traffic control device is a discretionary decision and veiled with immunity.
In addition to its claim against the county for its failure to install traffic signals at the
intersection, Nevada Power avers that the county had notice of the existence of a dangerous
traffic condition at the intersection and that it failed to act timely and reasonably in correcting
a known danger.
Other jurisdictions have recognized tort claims against governmental entitles based on the
unreasonable failure to heed known dangers. In Baldwin v. State, 491 P.2d 1121 (Cal. 1972),
the court noted that design immunity persists only so long as conditions have not changed.
Having approved the plan or design, the governmental entity may not, ostrich-like, hide its
head in the blueprints, blithely ignoring the actual operation of the plan. The city's decision
to allocate its resources in a manner that did not include installation of a traffic signal at the
stated intersection may not subject the city to tort liability, but this does not mean that the city
can, after making such a decision, hide its head and fail to heed notice that the intersection
thereafter presented an ongoing danger in its uncontrolled state. Teall v. City of Cudahy, 386
P.2d 493 (Cal.App. 1963). For this reason, if Nevada Power can establish its claim that the
county had notice that a dangerous condition existed at the intersection because of lack of
traffic controls, then the county should be held liable if it failed to act reasonably to eliminate
a persistently dangerous condition.
____________
107 Nev. 432, 432 (1991) Rodriguez v. State
JOSEPH MANUEL RODRIGUEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21226
June 27, 1991 813 P.2d 992
Appeal from judgment of conviction for one count of first degree kidnapping and three
counts of sexual assault. Eighth Judicial District Court, Clark County, J. Charles Thompson,
Judge.
Defendant was convicted of aiding and abetting commission of first degree kidnapping,
sexual assault as principal, and aiding and abetting others in commission of sexual assault;
judgment was entered in the district court. Appeal was taken. The supreme court held that
there was no evidence supporting convictions for aiding and abetting.
Morgan D. Harris, Public Defender, and Robert L. Miller Deputy and Stephen J. Dahl,
Deputy, Clark County, for Appellant.
James Tufteland, Deputy and Robert Langford, Deputy, Clark County, for Respondent.
1. Criminal Law.
In reviewing sufficiency of evidence supporting jury's verdict, question is whether rational jury could have been convinced of
defendant's guilt beyond reasonable doubt by evidence it had right to consider.
2. Assault and Battery; Kidnapping.
Defendant who had been involved in direct sexual assault did not aid or abet associates in their kidnapping or sexual assault
efforts; victim testified that only defendant's associates were involved in forcing her into a park, that defendant had arrived on scene
only after associates had sexually assaulted her, and that defendant had taken no action except actual sexual assault, and she had made
no mention of anyone acting as a lookout.
3. Criminal Law.
Mere presence at scene of crime cannot support inference that one is party to an offense.
OPINION
Per Curiam:
A jury convicted Joseph Manuel Rodriguez of one count of first degree kidnapping and
three counts of sexual assault. The indictment charged appellant as an aider and abettor in the
commission of the kidnapping, and as an aider and abettor in two of the sexual assault
charges. On appeal, Rodriguez challenges the sufficiency of the evidence supporting the
convictions for which he was charged as an aider and abettor. We hold that there was
insufficient evidence to support the challenged convictions and therefore reverse in part.
FACTS
On August 18, 1989, the victim went to the Guadalajara Bar. While there, she met a male
acquaintance, who was accompanied by four other men. One of these men identified himself
as Carlos. After the victim left the bar on foot, she was accosted by Carlos and another man
from the bar, later identified as William Bermudez. Carlos took the victim's purse. The victim
protested, telling the men she wanted to go home. The men allowed the victim to continue on
her way. The victim then walked in the direction of Fantasy Park.
walked in the direction of Fantasy Park. As she entered the park, the victim was suddenly
grabbed from behind by Bermudez. Bermudez pushed the victim, she slipped, and they fell
down onto the ground. Then, while Carlos held her hands above her head, Bermudez sexually
assaulted the victim. The three other men from the Guadalajara Bar appeared on the scene.
Carlos was the next to sexually assault the victim, followed by two of the other three men
from the bar. Bermudez then got on top of the victim again, and was caught in that position
by the arriving police.
At trial, the victim identified appellant as one of the men who had sexually assaulted her.
Metropolitan Police Department Criminalist Terry Cook testified that appellant was among
the three to three and one-half percent of the population which could not be eliminated as a
donor of sperm found in vaginal swabs taken from the victim on August 18, 1989.
Following trial, the jury found appellant guilty on Count I (aiding and abetting in the
commission of first degree kidnapping), Count IV (sexual assault as a principal), Count XI
(aiding and abetting William Alexander Bermudez in the commission of sexual assault) and
Count XII (aiding and abetting Cristobal Abrejo in the commission of sexual assault).
DISCUSSION
[Headnote 1]
In reviewing the sufficiency of the evidence supporting a jury's verdict, the question is
whether a rational jury could have been convinced of the defendant's guilt beyond a
reasonable doubt by the evidence it had a right to consider. See Holyfield v. State, 101 Nev.
793, 805, 711 P.2d 834, 842 (1985); Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980).
The kidnapping charge was found in Count I of the indictment charging Cristobal Abrejo,
William Alexander Bermudez and appellant. Count I charged the defendants with aiding and
abetting each other in kidnapping the victim by physically restraining her and thereby
preventing her escape, or by acting as lookouts for each other while each defendant sexually
assaulted her.
1
Count XI of the indictment charged appellant with aiding and abetting
William Alexander Bermudez in the sexual assault of the victim by physically restraining
her and thereby preventing her escape, or by acting as a lookout while Bermudez
committed the sexual assault.
__________

1
1. Every person who willfully seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps
or carries away any person by any means whatsoever with the intent to hold or detain, or who holds or
detains, the person for ransom, or reward, or for the purpose of committing sexual assault, extortion or
robbery upon or from the person, or for the purpose of killing the person or inflicting substantial bodily
harm upon him, or to exact from relative, friends, or any other person any money or valuable thing for the
return or disposition of the kidnapped person . . . is guilty of kidnapping in the first degree.
Count XI of the indictment charged appellant with aiding and abetting William Alexander
Bermudez in the sexual assault of the victim by physically restraining her and thereby
preventing her escape, or by acting as a lookout while Bermudez committed the sexual
assault. Count XII charged appellant with aiding and abetting Cristobal Abrejo in the sexual
assault of the victim in the same way.
2

[Headnote 2]
After reviewing the record and the briefs, and after hearing oral argument, we conclude
that there was insufficient evidence to support the jury's verdicts of guilty under Counts I, XI
and XII. While there was ample evidence presented that appellant personally sexually
assaulted the victim, there was no evidence presented that appellant in any way aided and
abetted the other suspects in kidnapping the victim or in sexually assaulting her. On the
contrary, the evidence presented tended to show that appellant did not commit those crimes.
For example, the victim, the sole witness of the attack who testified, stated that only Carlos
and Bermudez were involved in forcing her into the park. The victim likewise identified only
Carlos and Bermudez as having restrained her during the attack. The victim testified that
appellant arrived on the scene after Bermudez had already sexually assaulted her, and testified
to no actions by appellant except for the actual sexual assault. Finally, the victim made
absolutely no mention of anyone acting as a lookout. In summary, the state presented
absolutely no evidence to prove the specific acts charged in the indictment, i.e., that appellant
prevented the victim's escape while others assaulted her, or acted as a lookout while others
sexually assaulted her.
[Headnote 3]
It is well established that mere presence at the scene of a crime cannot support an inference
that one is party to an offense. Winston v. Sheriff, 92 Nev. 616, 555 P.2d 1234 (1976). Thus,
although we share the jury's outrage over the acts of violence perpetrated against this young
woman, we are unable to affirm the convictions that are based on aiding and abetting.
Accordingly, we reverse the judgments of conviction for first degree kidnapping (Count I),
and sexual assault by aiding and abetting (Counts XI and XII). We affirm appellant's
judgment of conviction for sexual assault (Count IV).
__________

2
1. A person who subjects another person to sexual penetration . . . against the victim's will or under
conditions in which the perpetrator knows or should know that the victim is mentally or physically
incapable of resisting or understanding the nature of his conduct, is guilty of sexual assault.
Although mere presence cannot support an inference that one is a party to an offense,
People v. Francis, 450 P.2d 591 (Cal. 1969), presence together with other circumstances may
do so. State v. Cummings, 423 P.2d 438 (Haw. 1967). Winston v. Sheriff, 92 Nev. 616, 618,
555 P.2d 1234, 1235 (1976). The majority concludes that the evidence submitted at trial was
insufficient to support appellant Rodriguez's convictions for kidnapping and sexual assault by
aiding and abetting; however, it is my conclusion that Rodriguez's presence at the scene of the
crimes, combined with his complicity in the crimes and his vicious sexual assault upon the
victim, constitutes more than sufficient evidence to support Rodriguez's convictions for
kidnapping and sexual assault by aiding and abetting.
The facts of this case indicate a coordinated series of events sufficient to support a
conclusion that five men acted in concert when they sexually assaulted a young woman.
Rodriguez stalked the victim in a pick-up truck while two of his friends took her purse and
pursued her into a park. As she entered the park, the two men grabbed the victim, threw her to
the ground, and tore parts of her clothing from her body. One of the assailants sexually
assaulted the victim while the other held her down. Moments later, Rodriguez and two more
men arrived at the scene. The victim was sexually assaulted a second time. At the conclusion
of this attack, one of the victim's assailants said next and the three remaining men
proceeded to sexually assault the ill-fated woman, each taking turns, waiting for others to
consummate their cruel invasion of the victim's body before commencing their own. The
appellant was not the first man to assault the victim on that night; nor was he the last.
It was appropriate for the jury to conclude that the five men, all acquaintances, were not by
happenstance drawn to the same park, at the same time in the middle of the night, with the
same desire to sexually assault the same woman, each man taking turns. Simple logic
demands a conclusion that these five men coordinated their efforts in this attack. A contrary
conclusion is untenable.
When five men sexually assault a woman in this brutal and coordinated fashion, the group
effort assists each individual in the perpetration of their crimes: each assailant directly and
indirectly encourages and induces the others to commit sexual assault through emulation and
example. The combined presence of the assailants enhances the ability of each individual to
consummate their crime by increasing the intimidation the victim must feel, and by limiting
the victim's ability to flee, resist, or protect herself.
and by limiting the victim's ability to flee, resist, or protect herself. The group assault also
works to intimidate anyone who might otherwise intervene on the victim's behalf, and in the
minds of men enervated by moral corruption, the evil acts of the group work to justify the
perverted thoughts and actions of each individual.
Understandably, in the course of the madness that occurred in the park that night, the
victim did not see any of the men acting as a lookout, and it was difficult for her to
specifically identify those who may have held her arms and legs during the assaults.
Nonetheless, in a very real sense, every man who was present that night and who sexually
assaulted the victim assisted the other men in assaulting the victim as well: each man
effectively held the victim's body at bay and physically restrained her, not only by his
presence and complicity in the others' crimes, but by a demonstrated bent for malevolence.
Each man encouraged and induced the others to act through example, and provided the others
with an opportunity to emotionally detach themselves from their individual crimes because of
the group assault.
[E]very person who, directly or indirectly, counsels, encourages, hires, commands,
induces or otherwise procures another to commit a felony . . . is a principal, and shall be
proceeded against and punished as such. NRS 195.020. A rational trier of fact could have
found, beyond a reasonable doubt, the elements of kidnapping and sexual assault by aiding
and abetting from the facts of this case and from appellant's actions on the night in question;
this court should not usurp the jury's function by ruling otherwise. See Jackson v. Virginia,
443 U.S. 307 (1978); Koza v. State, 100 Nev. 245, 250 681 P.2d 44, 47 (1984).
It is my position that a principle of law should not be used to obscure the facts of a given
case; nor should it be used to eclipse common sense. Rodriguez was not merely present at the
scene of the crime as the majority suggests. The record supports a conclusion that Rodriguez,
both directly and indirectly, assisted, encouraged and induced his friends to physically
restrain and assault a hapless woman in a vicious gang attack. His convictions for kidnapping
and sexual assault by aiding and abetting should be affirmed by this court.
Accordingly, I dissent.
__________
107 Nev. 438, 438 (1991) Sims v. State
ANTHONY EDWARD SIMS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20926
June 27, 1991 814 P.2d 63
Appeal from judgment of conviction of one count of grand larceny and habitual criminal
sentence of life without possibility of parole. Eighth Judicial District Court, Clark County; J.
Following jury trial before the district court, defendant was convicted of one count of
larceny and sentenced to life imprisonment without the possibility of parole as habitual
offender. Defendant appealed. The supreme court, Steffen, J., held that: (1) supreme court
would not disturb sentence of life imprisonment that was within parameters of Nevada law,
even if it might have imposed more lenient sentence, and (2) prosecutor did not improperly
comment on defendant's post-arrest silence in cross-examining defendant about
inconsistencies between his trial testimony and statements he gave arresting officers.
Affirmed.
Morgan D. Harris, Public Defender, and Marcus D. Cooper, Deputy Public Defender,
Clark County, for Appellant.
1. Criminal Law.
Imposition of sentence of life imprisonment without possibility of parole on habitual offender upon his conviction of one count of
grand larceny would not be disturbed on appeal, notwithstanding what might appear to be unduly harsh sentence based upon record; it
was presumptively improper for supreme court to superimpose its own views upon sentences of incarceration lawfully pronounced by
sentencing judge where defendant was sentenced within parameters of Nevada law.
2. Criminal Law.
Prosecutor did not improperly comment on defendant's post-arrest silence by cross-examining him on inconsistencies between his
trial testimony and his statements to arresting officers and in asking defendant whether his trial testimony was first time that we've
heard version of events contained in testimony.
107 Nev. 438, 439 (1991) Sims v. State
OPINION
Appellant Anthony Edward Sims was convicted, pursuant to a jury verdict, of one count of
grand larceny. Sims was also adjudged an habitual criminal and sentenced to a term of life
without the possibility of parole. The primary issue Sims raises on appeal is whether his
sentence is disproportionate to the crime and therefore violative of the Eighth Amendment's
proscription against cruel and unusual punishment. We conclude that Sims was fairly tried,
convicted and sentenced and therefore affirm.
The instant grand larceny offense involved the unlawful taking of a purse and wallet
containing $476.00. The record reveals ample evidence of Sims' guilt.
[Headnote 1]
At a post-trial hearing before the lower court, Sims was adjudicated an habitual criminal
and sentenced to life imprisonment without the possibility of parole. Citing Solem v. Helm,
463 U.S. 277 (1983), Sims contends that his sentence was disproportionate to the gravity of
the underlying offense and his prior criminal history, and that the sentence therefore
constituted a violation of the Eighth Amendment's proscription against cruel and unusual
punishment. We disagree.
The Solem court, without purporting to overrule Rummell v. Estelle, 445 U.S. 263 (1980),
reacted strongly, albeit by a five to four vote, to a sentence of life without the possibility of
parole pronounced upon a criminal defendant whose crimes had been non-violent, never
directed against a person, and facilitated by an alcohol component. Nevertheless, the Solem
majority observed that [i]n view of the substantial deference that must be accorded
legislatures and sentencing courts, a reviewing court rarely will be required to engage in
extended analysis to determine that a sentence is not constitutionally disproportionate.
Solem, 463 U.S. at 290 n.16. Moreover, in Rummel the court said that one could argue
without fear of contradiction by any decision of this Court that for crimes concededly
classified and classifiable as felonies, that is, as punishable by significant terms of
imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a
matter of legislative prerogative. Rummel, 445 U.S. at 274. Despite the Solem court's
characterization of the quoted language in Rummel as argument only, the comment
concerning the quoted material, set forth in footnote 11 of the Rummel opinion, clearly tends
to validate the actual premise.1 In any event, considering both the rarity with which the
Solem-type of appellate review was projected by the Solem court, and the remaining
vitality of Rummel, we are persuaded that no Solem analysis is warranted in the instant
case.
107 Nev. 438, 440 (1991) Sims v. State
Rummel opinion, clearly tends to validate the textual premise.
1
In any event, considering
both the rarity with which the Solem-type of appellate review was projected by the Solem
court, and the remaining vitality of Rummel, we are persuaded that no Solem analysis is
warranted in the instant case.
The district court judge, who is far more familiar with Sims' criminal background and
attitude than the members of this court, sentenced Sims within the parameters of Nevada law.
Although we may very well have imposed a different, more lenient sentence, we do not view
the proper role of this court to be that of an appellate sentencing body. Moreover, because the
Legislature has determined the sentencing limitations and alternatives that our district courts
may impose on criminals who habitually offend society's laws, we deem it presumptively
improper for this court to superimpose its own views on sentences of incarceration lawfully
pronounced by our sentencing judges. See Rummel v. Estelle, 445 U.S. 263 (1980). In that
respect, we note that our prerogatives and responsibilities are different in capital cases where
the Legislature has statutorily mandated a sentence review by this court to assure that the
sentence of death is not excessive given the defendant and the crime.
Despite what may appear to be an unduly harsh sentence based upon the record before us,
the sentence was lawful and presumably consonant with the judge's perceptions of Sims' just
deserts and the punitive attitude of the community in which the judge serves.
2
We therefore
sustain the judgement of the sentencing court in the sentence imposed on Sims as an habitual
offender.
__________

1
The referenced footnote reads as follows: This is not to say that a proportionality principle would not
come into play in the extreme example mentioned by the dissent, post, at 288, if a legislature made overtime
parking a felony punishable by life imprisonment. Rummel, 445 U.S. at 274 n.11.

2
The sentencing judge was undoubtedly aware of Sims' extensive criminal history, and concluded from that
history that Sims was deserving of the harsh sentence he received. According to the State, Sims had not only
committed three prior felonies, including a conviction for armed robbery with use of a deadly weapon, but he
had also been arrested forty-one times as an adult, nine of which resulted in misdemeanor convictions. He also
had a history of parole violation.
Additionally, we also recognize the very real possibility that Sims will eventually be accorded clemency by
the State Board of Pardons. In our recent decision of Smith v. State, 106 Nev. 781, 802 P.2d 628 (1990), we
held that the Board of Pardons retains the power under Nevada constitutional and statutory law to commute a
sentence of life without the possibility of parole to a sentence allowing for parole. Id. at 784, 802 P.2d at 630.
This means that Sims could receive parole consideration after only ten years beyond the ten-year sentence he
could have received for the immediate offense of grand larceny.
107 Nev. 438, 441 (1991) Sims v. State
[Headnote 2]
Sims also contends that he was denied a fair trial because of the prosecutor's comments
concerning Sims' post-arrest silence. Again, we disagree. Our review of the record reflects
that the prosecutor only questioned Sims concerning the inconsistencies between Sims' trial
testimony and his statements to the arresting officers.
3
Specifically, both Officers Blasko and
Guenther testified that Sims admitted that he took the purse. Indeed, Sims admitted during
trial that he told the officers that he would show them where the purse was if they would
return his cigarettes and let him go. At trial Sims also testified that he knew where the wallet
was because he had seen it thrown out of a passing car. The prosecutor had the right to
inquire about the inconsistency during his cross-examination of Sims.
For the reasons noted above, we conclude that Sims' contentions are without merit. We
therefore affirm both the judgment of conviction and sentence entered by the district court.
Anthony Sims (Sims) took a purse from a desk at the office of the Las Vegas Sun
newspaper. He threw the purse and wallet away and kept the money he had found inside.
When Sims was apprehended by police, he returned the money and showed them where he
had discarded the purse and wallet. He pleaded guilty to grand larceny. For this non-violent
crime, the district court sentenced him as an habitual criminal, giving him life imprisonment
without the possibility of parole. He will not be eligible for any relief from his sentence until
20 calendar years have passed.
__________

3
The exchange that Sims characterizes as an improper comment on his post-arrest silence is as follows:
PROSECUTION: So, the fact of the matter is, sir, that this is the first time that we've heard this story
about the mystery vehicle, the story about the Moulin Rouge
DEFENSE COUNSEL: Your Honor, I'm going to object. I mean that's an improper question. This is the
first time. This the first time this jury's sat on this case. He knows that the defendant's testified consistent
with this same version.
PROSECUTOR: I'm going to object to this argument.
COURT: Wait a minute. Arguing with each other isn't going to help any.
DEFENSE COUNSEL: He's trying to give the impression, judge,
COURT: He's cross-examining him. Objection's overruled.
PROSECUTOR: The fact of the matter is that you never told the police officers anything like that, isn't
that right, sir?
DEFENDANT: Anything like where I've been?
PROSECUTOR: Correct.
DEFENDANT: No, I didn't tell them nothing.
107 Nev. 438, 442 (1991) Sims v. State
any relief from his sentence until 20 calendar years have passed. This is an excessive sentence
and should be modified by this court. The majority's failure to do so is an abdication of our
responsibility and a refusal to correct an injustice when brought to our attention.
The supreme court of this state has repeatedly abstained from appellate review of
sentencings when the district court has imposed sentences within statutory limits. I find it
disheartening that the part of the criminal process that has the greatest ultimate effect on the
defendantthe imposition of his or her sentenceis the part we decline to review.
We place many important issues such as admissibility of evidence, conduct of the trial,
permissibility of discovery, and the sanctity of privileged information within the discretion of
our district courts. However, this court has always retained the right to review whether the
district court abused its discretion on any ruling made in the course of a trial. While we show
deference to the district court's exercise of discretion, we are not hesitant to reverse a case
because a district judge abused that discretion in admitting outlandishly prejudicial evidence
or refusing to grant a continuance which was clearly warranted. I see no reason for this court
to abstain from reviewing the same kind of error made in the exercise of discretion when
sentencing. Such an error was made in this case, and we should not allow a broad policy of
abstention to keep us from recognizing an abuse of discretion.
Those who oppose appellate review of sentences might argue that the legislature has
provided broad parameters defining the range of sentences that trial courts may impose, and
that these parameters sufficiently keep sentences in proportion. However, as evinced by this
case, that theory does not work. The legislature has made the parameters broad so that trial
courts can make sentences proportionally sound by taking into account both (1) the crime
committed, and (2) extraneous facts about the perpetrator. It has also provided mandatory
enhancement terms for some crimes
1
and minimum sentences for others. While latitude
affords trial courts the ability to impose appropriate sentences, it also permits them to impose
a sentence that results in an injustice in an individual case. Sentences can be disproportionate
in light of punishments imposed for comparable crimes in this jurisdiction, or in light of the
degree of danger the offender poses to society.
__________

1
NRS 193.165 provides that the trial court double the sentence if a defendant uses a firearm or deadly
weapon in the commission of certain crimes and NRS 193.167 requires that the trial court double the sentence if
the victim of certain crimes is over 65 years of age. These are some of the most severe enhancements in the
United States.
107 Nev. 438, 443 (1991) Sims v. State
We often observe two sentences which vary dramatically, even though the two defendants'
crimes and backgrounds are similar.
I do not seek to deprive the legislature of its plenary power to weigh the severity of
different crimes and to dictate appropriate sentences through statutory law. However, the
argument that this court would be usurping legislative functions by reviewing sentences is
pure sophistry. Legislatures cannot create enough sentencing law to match the nuances of
each crime and perpetrator, and thus they confer on their respective judiciaries some
discretion in sentencing. This court, as the highest court in the State of Nevada, has the
authority to review any discretionary matter specifically delegated to the judiciary. Since the
exercise of discretion in sentencing is an integral part of the criminal judicial process, it
should be subject to our review.
The United States Supreme Court has determined that appellate courts may review
sentences which are so disproportionate to the crime committed that the punishment violates
the Eighth Amendment proscription against cruel and unusual punishment. Solem v. Helm,
463 U.S. 277 (1983). In Solem, the defendant was convicted of uttering a no account check
for $100. The trial court sentenced him to life imprisonment without possibility of parole
under South Dakota's recidivist statute because he had six prior non-violent felony
convictions. The Court concluded that the Eighth Amendment prohibits not only barbaric
punishments, but also sentences which are disproportionate to the crime committed. Id. at
284. In finding that proportionality analysis can apply to any kind of sentence, the Court
stated, It would be anomalous indeed if the lesser punishment of a fine and the greater
punishment of death were both subject to proportionality analysis, but the intermediate
punishment of imprisonment were not. Id. at 289.
Like those who argue that proportionality review should only apply in cases where the
punishment is cruel and unusual in kind,
2
the Solem court only calls for appellate review
where the punishment is so grossly disproportionate that the injustice reaches constitutional
proportions. Id. at 290. Whether the concept of constitutional proportions is truly a type of
proportionality as opposed to a degree of proportionality is a question of semantics rather
than legal theory. State judiciaries have the power to determine the extent to which their
appellate systems will provide for review of sentencing.
__________

2
Courts generally have held that capital punishment differs from all other forms of criminal punishment, in
kind rather than in degree. See Enmund v. Florida, 458 U.S. 782 (1982); Coker v. Georgia, 433 U.S. 584 (1977);
Furman v. Georgia, 408 U.S. 238, 306 (1972).
107 Nev. 438, 444 (1991) Sims v. State
Many states already provide for this type of review in several different forms. For
example, Washington allows for appellate review of sentencing through its state constitution.
State v. Fain, 617 P.2d 720 (Wash. 1980). In Fain, the court reasoned that the purpose of
proportionality analysis, and the objective factors that such analysis requires, is to minimize
the possibility that the personal preferences of judges will determine the course of a convict's
life. Id. at 725; see also Coker v. Georgia, 433 U.S. 584, 592 (1977). Fain was decided before
Solem, at a time when the most recent Supreme Court decision upheld the constitutionality of
a life sentence for a non-violent felony. Cf. Rummel v. Estelle, 445 U.S. 263 (1980). In
concluding that it must reduce the defendant's sentence, the Fain court realized that whether
or not the Constitution requires proportionality review, such review is mandated by a general
sense of justice and duty. State v. Fain, 617 P.2d at 728.
The California Supreme Court determined that its responsibility extends to the
determination of whether a particular sentence is proportional to the crime. See In re
Rodriguez, 537 P.2d 384 (Cal. 1975). In Rodriguez, the court determined that a life term is
excessive punishment for a defendant convicted of committing lewd or lascivious acts with a
child. The court found that a life term is not always excessive for that particular offense
because the offense is one that could result in grave injury or death in some cases. Id. at 390.
However, that was not the case in Rodriguez, where the court found an abuse in the
administration of an otherwise valid, indeterminate sentencing law. Hence, the highest court
in California recognized that trial courts must be granted both discretion and deference, but
that complete deference could result in grave injustice without some avenue for review.
In a concurrence to an opinion vacating a thirty-six-year sentence for passing bad checks,
one justice on the Alaska Supreme Court wrote that, sentencing is a discretionary judicial
function and that it is the province of the judiciary itself, not the executive branch
3
of our
government, to correct abuses of such discretion.
__________

3
In accord with this reference, the justice also notes that the alternatives of parole and executive clemency
are too speculative for legitimate consideration. See Bear v. State, 439 P.2d 432, 440 (Alaska 1968)
(Rabinowitz, J., dissenting). This observation applies equally to Nevada. Parole consideration is not available for
certain crimes until an inmate serves a specific number of years, and unavailable until one-third of any sentence
has been served. With an excessive sentence, any parole consideration can be greatly postponed. The Nevada
Pardons Board meets twice a year and considers about a dozen cases a year for sentence reduction. The Board is
designed to provide clemency in a few extraordinary cases and not for a systematic review of sentences imposed
throughout Nevada.
107 Nev. 438, 445 (1991) Sims v. State
Faulkner v. State, 445 P.2d 815, 822 (Alaska 1968) (Rabinowitz, J., concurring). With that
definitive language, the justice recognized that the appellate judiciary is in the best position to
impose a sense of fairness in sentencing, and that the concepts of separation of powers,
deference, and abstention do not come into play in this arena.
While vacating the sentence imposed in Solem, the Court noted three factors that courts
use when considering the proportionality of a sentence. These factors are: (1) the gravity of
the offense and the harshness of the penalty,
4
(2) the sentences imposed on other criminals
for other crimes in the same jurisdiction, and (3) the sentences imposed for commission of the
same crime in other jurisdictions. Solem, 463 U.S. at 292. These same factors should apply
whether a jurisdiction uses an Eighth Amendment analysis or simple appellate review under
an abuse of discretion standard to determine if a particular sentence is excessive. I would
prefer the abuse of discretion standard.
Application of these factors reveals the injustice of this case. The crime that precipitated
Sims being sentenced to life without the possibility of parole was a non-violent taking of
property that he returned when he was apprehended. Sims was convicted of only one violent
crime, an armed robbery occurring over sixteen years ago. I agree that Sims' record justifies
the trial court's classification of him as an habitual criminal. However, the lesser sentence of
life with the possibility of parole is a more appropriate punishment for the crime that he
committed in this case.
5
Considering the first factor of the Solem test, the penalty imposed is
disproportionately harsh in light of the gravity of Sims' crime.
Sims notes that the maximum punishment for the crime of grand larceny, standing alone,
is ten years in prison and a $10,000 fine. NRS 205.220. On the other hand, crimes which
carry a mandatory or possible life sentence without the possibility of parole are of a more
serious nature and include (1) first degree murder, (2) first degree kidnapping with substantial
bodily harm, and {3) sexual assault with substantial bodily harm.
__________

4
Some courts have included in this factor, the nature of the office or offender with particular regard to the
degree of danger that each presents to society. See In Re Lynch, 503 P.2d 921 (Cal. 1972)

5
NRS 207.010(2) provides that the punishment for an habitual criminal like Sims is either life with or life
without the possibility of parole. The difference between life with and life without the possibility of parole is
significant. If given life with, an inmate is eligible for parole when he or she has served 10 calendar years in
prison. NRS 200.030(4)(b). If sentenced to life without, the inmate is never eligible for parole, unless his
sentence is commuted to life with by the Pardons Board, and thereafter the Parole Board cannot take any action
to parole until the inmate has served 20 calendar years. Nev. Const. art. 5, 14(2); Smith v. State, 106 Nev. 781,
802 P.2d 628 (1990).
107 Nev. 438, 446 (1991) Sims v. State
and (3) sexual assault with substantial bodily harm. Sims' crime could not have caused bodily
harm to another person. Therefore, it should result in a lesser punishment as suggested by the
second factor of the Solem test, which provides that the sentence should be proportional to
other sentences imposed in the same jurisdiction.
The final factor, comparison of Sims' sentence to those imposed in other jurisdictions, was
examined by the Solem court itself. The Court stated, The Court of Appeals found that,
Helm could have received a life sentence in only one other state, Nevada,' 384 F.2d at 586,
and we have no reason to doubt this finding. Solem, 463 U.S. at 299. Not only did the Solem
court require the state to commute the defendant's sentence, but it cited Nevada as the only
other state in which the error it corrected could have occurred.
Since our legislature drafts statutes which are broad enough to sustain a margin for error,
this court should review sentences claimed to be excessive and thereby provide a remedy
when errors do occur. Refusal to do so means that all sentences imposed by the district courts
will not be subject to judicial review if it were legally possible to assess them, regardless of
how disproportionate the punishment is to the crime committed.
____________
107 Nev. 446, 446 (1991) Fernandez v. Kozar
VIRGINIA T. FERNANDEZ, ROMAN P. FERNANDEZ, JR., EVELYN FERNANDEZ and
ALLEN FERNANDEZ, Sole Heirs of ROMAN P. FERNANDEZ, Decedent,
Appellants, v. MARK KOZAR, M.D.; WASHOE MEDICAL CENTER, INC.,
Respondents.
No. 21096
June 27, 1991 814 P.2d 68
Appeal from a district court order granting summary judgment. NRCP 56(c). Second
Judicial District Court, Washoe County; Robert Schouweiler, Judge.
Heirs of patient were substituted for patient, upon his death, in medical malpractice action.
Heirs filed second amended complaint seeking relief under wrongful death theory. The
district court entered summary judgment against heirs, and they appealed. The supreme court
held that: (1) wrongful death claims did not accrue until death of patient, and (2) statute of
limitations was tolled while claims were under consideration by Medical Legal Screening
Panel.
Peter J. Sferrazza, Reno, for Appellants.
Margo Piscevich and Kimberley Palmer Fenner, Reno, for Respondent Washoe Medical
Center, Inc.
Hibbs, Roberts, Lemons, Grundy & Eisenberg, Reno, for Respondent Mark Kozar, M.D.
1. Death.
Wrongful death claims of patient's heirs, who alleged that patient died early death due to medical malpractice, did not accrue until
patient's death, irrespective of heirs' prior knowledge of medical problems besetting patient during course of his treatment. NRS
41A.097, subd. 1.
Cause of action for wrongful death premised on allegations of medical malpractice was statutorily tolled while claim was under
consideration by Medical Legal Screening Panel. NRS 41A.097, subd. 2(b).
When patient's heirs were substituted for patient, upon his death, in medical malpractice action, they stated newly accrued cause of
action for wrongful death in what became second amended complaint, which was functional equivalent of original, timely complaint as
matter of law. NRCP 25; NRS 41A.097, subd. 1.
OPINION
Per Curiam:
Appellants, heirs of the late Roman Fernandez, Sr. (Roman), have appealed from
summary judgment entered below on grounds that their wrongful death claim was untimely
filed. The district court ruled that the claims filed against respondents Dr. Mark Kozar and
Washoe Medical Center as substituted Doe defendants in a second amended complaint filed
on August 18, 1989, were not within the purview of NRCP 10(a)
1
and therefore did not
relate back to the original complaint filed on December 31, 1985. Because we have concluded
that the district court did not apply the correct legal standard to the statute of limitations for a
wrongful death cause of action, we reverse.
Summary judgment is proper only when the moving party is entitled to judgment as a
matter of law, and no genuine issue of material fact remains for trial. Wiltsie v. Baby Grand
Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989); Morrow v. Barger, 103 Nev. 247, 250,
737 P.2d 1153, 1154 (1987). NRCP 56{c).
__________

1
NRCP 10(a) states in pertinent part: A party whose name is not known may be designated by any name,
and when his true name is discovered, the pleading may be amended accordingly.
56(c). The sole issue before us is one of law, as there are no disputed material facts relevant
to the resolution of this appeal.
Roman died on October 17, 1986. His heirs argue that he died an early death due to
medical malpractice. However, the merits of the underlying action are not at issue in the
instant appeal. We are here concerned only with discerning the appropriate statute of
limitations in a wrongful death cause of action.
The evidence of record reveals that the original complaint was filed before all defendants
were known, before Roman had died, and before all the causes of action had fully accrued.
2
The heirs chronicle a series of alleged medical mishaps
3
that, as previously noted, are not
relevant to the single issue before us. We therefore will avoid burdening this opinion with the
factual basis for recovery asserted by appellant against respondents. Suffice it to say that
appellants complained that Roman's death was accelerated as a result of respondents'
negligence.
Following Roman's death, his heirs successfully substituted themselves as plaintiffs
pursuant to NRCP 25.
4
Thereafter, in a second amended complaint, appellants sought relief
for injury to the heirs under a wrongful death theory. In its order granting summary judgment
in favor of respondents, the district court based its decision on Lunn v. American
Maintenance Corp., 96 Nev. 787, 618 P.2d 343 (1980), and the Lunn court's ruling
concerning the requirements and effect of NRCP 10(a) and 15(c) as they relate to Doe
defendants and the relation back of an amended pleading to the original complaint.
Unfortunately, the district court's reliance on the law pertaining to the application of NRCP
10(a) and 15(c) was misplaced. Neither rule is relevant to the resolution of the issue before us
because, as we will demonstrate hereafter, the statute of limitations had not expired with
respect to the heirs' wrongful death action; there was no need for the second amended
complaint to relate back to the original complaint in order to save the heirs' action.
The district court's reasoning was flawed in that it failed to take into meaningful
consideration the fact that at the time of the filing of the original complaint Roman was still
alive.
__________

2
The original complaint alleged that the plaintiff's physical condition is in such a pathetic state that a few
months' delay may bar his testimony forever.

3
In another action, appellants have also appealed an involuntary dismissal under NRCP 41(b) in favor of
two additional treating physicians named as defendants in the original complaint.

4
NRCP 25(a)(1) states in pertinent part: If a party dies and the claim is not thereby extinguished, the court
may order substitution of the proper parties. The motion for substitution may be made by any party or by the
successors or representatives of the deceased party . . . .
of the original complaint Roman was still alive. The heirs' claim for wrongful death was
nonexistent at that point.
[Headnotes 1-3]
Our previous decisions have made clear that in an action for wrongful death, the injury
contemplated by NRS 41A.097 is the death of the malpractice victim and two-year period of
limitation begins to run from the time of death or the discovery thereof. Gilloon v. Humana,
Inc., 100 Nev. 518, 519-20, 687 P.2d 80, 81 (1984). [T]he very earliest that the statute of
limitations could begin to run for a wrongful death action would be at death, and not before.
Pope v. Gray, 104 Nev. 358, 363 n.6, 760 P.2d 763, 766 n.6 (1988).
Although the heirs were aware of the medical problems besetting Roman during the course
of his treatment, the heirs had no basis for a claim for wrongful death until Roman's demise,
and death was the final element necessary to trigger the two year statute of limitations.
Pope v. Gray, 104 Nev. 358, 363 n.6, 760 P.2d 763, 766 n.6 (1988). The statute of limitations
for wrongful death began to run in the instant case upon Roman's death, and absent a period
of tolling, would have expired two years later, that is, on October 17, 1988. However, the
cause of action was statutorily tolled for ten months and seven days while the claim was
under consideration by the Nevada Medical Legal Screening Panel. NRS 41A.097(2)(b).
5
By
adding the tolling interval to the two-year period starting with Roman's death, a cause of
action for wrongful death would have been timely until August 24, 1989, the date on which
the statute of limitations would expire. The second amended complaint was filed on August
18, 1989, six days before the running of the statute of limitations.
6

A wrongful death statute makes no account of the wrong done to the deceased; it is only
concerned with the loss to the relatives. Perry v. Tonopah Mining Co., 13 F.2d 865, 870
(D.Nev. 1915). The cause of action has no existence before the death of the decedent has
occurred. Gilloon v. Humana, Inc., 100 Nev. 518, 520, 687 P.2d 80, 81 (1984). [A]
wrongful death action . . . creates an independent right in designated survivors for damages
they sustain by reason of the decedent's death. Fisher v. Missoula White Pine Sash Co., 518
P.2d 795, 797 (Mont. 1974). NRS 41A.097(1) gives the heirs such a cause of action against a
"provider of health care."
__________

5
The extension of tolling in the present statute for thirty additional days after notification by the panel was
added by 1989 amendment and is not relevant to the instant case. 1989 Nev. Stat. 424.

6
Appellants do not contend that they were unaware of the injury and that the wrongful death claim is further
tolled through the discovery rule adopted in Pope v. Gray, 104 Nev. 358, 362, 760 P.2d 763, 764 (1988).
against a provider of health care. It is thus clear that a wrongful death claim is an entirely
new cause of action created in the heirs. At the time the heirs were substituted in as plaintiffs
under NRCP 25, they stated a newly accrued cause of action in what became the second
amended complaint.
7
We therefore conclude that the second amended complaint, which
named new plaintiffs and new defendants, was the functional equivalent of an original, timely
complaint as a matter of law.
For the reasons stated above, the order granting summary judgment in favor of respondents
was erroneously granted. We therefore reverse and remand for further proceedings.
____________
107 Nev. 450, 450 (1991) Rivera v. Nevada Medical Liab. Ins. Co.
ELIZABETH ANN RIVERA, Appellant v. NEVADA MEDICAL LIABILITY INSURANCE
COMPANY, Respondent.
No. 21183
June 27, 1991 814 P.2d 71
Appeal from an order of the district court granting respondent's motion for summary
judgement. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Patient filed declaratory relief action to determine that physician's insurer had to provide
coverage for physician's sexual assault on patient. The district court entered summary
judgment in favor of insurer. Patient appealed. The supreme court, Rose, J., held that: (1)
sexual misconduct exclusion in professional liability policy specifically meant sexual assault
that arose out of professional services; (2) for purposes of professional liability insurance,
forcible rape was act which physician knew with substantial certainty would cause harm to
victim regardless of age, and thus, intent to injure exclusion precluded patient's claim
regardless of physician's subjective intent; and (3) enforcement of intentional, criminal, and
sexual act exclusions in professional liability policy did not violate public policy.
Affirmed.
__________

7
Respondents argue that since the decedent filed a complaint in this action while he was still living, the
statute of limitations even in a wrongful death claim would begin to run from the date of Roman's awareness of
his injury and its wrongful cause. Respondents distinguish Gilloon in this respect. In Gilloon, medical injury to
the decedent occurred some three years before her death. Gilloon, 100 Nev. at 519, 687 P.2d at 81. No
complaint was filed during her lifetime. We conclude that such a strained distinction is without merit.
Appellant.
Miles, Pico & Mitchell and E. Breen Arntz, Las Vegas, for Respondent.
1. Insurance.
Professional liability policy exclusion for sexual assault, meant sexual assault that arose out of professional services; separate and
distinct act of rape by physician outside office would not be within purview of professional liability policy and would not need to be
excluded.
2. Insurance.
For purposes of professional liability insurance coverage, forcible rape was act which physician knew with substantial certainty
would cause harm to victim of any age, and thus, intent to injure exclusion in professional liability policy precluded claim of patient
alleging sexual assault by physician regardless of physician's subjective intent.
3. Insurance.
Intentional, criminal and sexual act exclusions in professional liability policy were not void as matter of public policy.
OPINION
Appellant Elizabeth Ann Rivera (Rivera) went to see her gynecologist on Saturday,
January 2, 1988, because she noticed a dark discharge from her breast. Dr. Kimble McNair
(McNair) performed a breast, vaginal, and rectal examination on Rivera. McNair informed
her that the results of her examination were favorable, but that he was concerned that he may
have injured her during the rectal examination and needed to examine her again. Then
McNair pulled Rivera across the table with her face down and sodomized her.
After this incident, Rivera contacted Rape Crisis and filed a police report and a medical
malpractice complaint before the Nevada Medical-Legal Screening Panel. Dr. McNair was
subsequently convicted of sexual assault.
At the time of the incident, respondent Nevada Medical Liability Insurance Company
(NMLIC) insured McNair for professional liability. The policy covered damages incurred by
the insured as a result of claims made against the insured because of injury arising out of the
rendering or failure to render professional services by the insured performed in the practice of
the insured's profession. The policy contained a list of twenty-three exclusions, three of
which are pertinent to this case.
exclusions, three of which are pertinent to this case. These three exclude coverage for
criminal acts, intentional injuries, and sexual acts which arise out of the rendering of
professional services. The exact wording of the exclusions are as follows:
II. EXCLUSIONS
This insurance does not apply:
. . . .
(k) to claims made against an insured which resulted from the performance of a
criminal act or services rendered while under the influence of any intoxicants,
narcotics or psychoactive drugs;
. . . .
(o) to claims made against an insured which result from the commission,
authorization, or ratification of any act intended by the doer thereof or by the insured
to inflict injury or damage;
. . . .
(r) to claims made against an insured which result from sexual intimacy, sexual
molestation, sexual harassment, sexual exploitation, or sexual assault. . . .
Rivera filed a declaratory relief action asking the district court to find that NMLIC must
provide coverage for this sexual assault. The court granted NMLIC's motion for summary
judgment, holding that NMLIC's policy did not cover McNair's action. Rivera now appeals,
asserting that she should recover under McNair's policy because (1) coverage is proper when
the sexual act is so much a part of the rendering of professional services that it is considered
malpractice; (2) the arising out of language in the policy is ambiguous and therefore must
be construed generally, and in Rivera's favor; (3) McNair did not intend injury, making
exclusion o inapplicable; and (4) the need to compensate the victim should make the
criminal and sexual act exclusions (k and r) void as a matter of public policy. We
conclude that none of these contentions have merit and affirm the order of the district court.
BREADTH AND AMBIGUITY OF THE POLICY
[Headnote 1]
Rivera asserts that her injury is covered by the policy because it resulted from the
rendering of professional services. The policy states that it covers acts that arise out of the
rendering of or failure to render professional services. Rivera asserts that the term arising
out of is broader than the term caused by. Cf. Carter v. Bergeron, 160 A.2d 348 (N.H.
1960) (arising out of only means that the use was connected with the injury); Manufacturers
Cas.
turers Cas. Ins. Co. v. Goodville Mut. Cas. Co., 170 A.2d 571, 573 (Pa. 1961) (arising out of
means causally connected and not proximately caused by). Therefore, the terms of the policy
require only a general causal connection between the injury and the services, and the
ambiguous term arising out of must be construed against the insurer and cover McNair's
act.
NMLIC denies that the sexual assault arose out of the rendering of professional services.
However, NMLIC need not make this argument.
1
The policy specifically excluded coverage
for sexual misconduct. Even though NMLIC's policy has broad language that otherwise might
cover NcNair's act, the exclusions preclude coverage in this case.
Rivera asserts that the exclusions only preclude coverage for injuries that stem from
tortious conduct which is separate and distinct from the rendering or failure to render
professional services. In fact, NMLIC would not need to exclude a separate and distinct act
like a rape outside the office, because such an act would not fall within the purview of a
professional liability policy. Therefore, when the policy excludes sexual assault, it
specifically means sexual assault that arises out of professional services.
One court did find that a gynecologist's act of sexual misconduct was covered by his
malpractice policy. St. Paul Fire & Marine Ins. Co. v. Asbury, 720 P.2d 540 (Ariz. 1986).
However, in that case, the policy contained no exclusions for injuries that result from
unprofessional acts. Id. at 541. Since this policy specifically excludes sexual misconduct in
three separate clauses, the reasoning in Asbury does not apply in this case.
APPLICABILITY OF THE INTENT TO INJURE EXCLUSION
[Headnote 2]
Rivera contends that exclusion o, the intent to injure clause, does not apply because
McNair intended the rape, but not her injuries. Some courts have held that intent to injure
must be proved even in a case of sexual misconduct.
__________

1
Nevertheless, NMLIC's reasoning goes as follows: Generally, sexual misconduct of a psychiatrist amounts
to professional malpractice, but the same act by a doctor does not. This is because of the natural emotional
reaction of a patient toward an analyst. Washington Ins. Guar. Ass'n v. Hicks, 744 P.2d 625 (Wash.App. 1987)
(physicians' policies do not cover sexual misconduct because they do not offer a course of treatment which
transfers emotions to themselves like a therapist's treatment might). Other courts simply have concluded that
sexual misconduct does not arise out of professional services. Smith v. St. Paul Fire & Marine Ins. Co., 353
N.W.2d 130 (Minn. 1984) (the policy covers injury from medical treatment, not injury from acts which satisfied
the doctor's own prurient interest); Eberdt v. St. Paul Fire & Marine Ins. Co., 585 P.2d 711 (Ore. 1978) (carrier
need not defend doctor because an intentional tort cannot be committed in a negligent manner).
proved even in a case of sexual misconduct. State Auto Mut. Ins. Co. v. McIntyre, 652
F.Supp. 1177 (N.D. Ala. 1987) (intentional injury exclusion does not apply to all injuries
which are the natural and probable consequences of an act; instead, it applies when the
insurer proves intent); Allstate Ins. Co. v. Troelstrup, 768 P.2d 731, 732 (Colo.App. 1988)
(intentional injury exclusion did not apply to the sexual molestation of minors because the
insured had no subjective intent to cause harm).
However, at least five jurisdictions have held to the contrary.
2
The courts in those states
determined that intent to injure is inferred when an insured commits a sexual assault on a
minor. Although Nevada has no case law on point, two federal cases have interpreted Nevada
law to hold the same way. State Farm Fire & Cas. Co. v. Smith, 907 F.2d 900 (9th Cir. 1990)
(Nevada law conclusively presumes that molesting a child is harmful in every caseNRS
201.230 (lewdness with a minor)); Allstate Ins. Co. v. Foster, 693 F.Supp. 886 (D.Nev. 1988)
(lewdness with a minor is so nearly certain to produce injury that intent to injure is inferred).
At least one court inferred injury when an adult was the victim of a sexual assault. Altena
v. United Fire and Cas. Co., 422 N.W.2d 485 (Iowa 1988) (an act of forcible intercourse with
a 20 year old is of such a character that intent to cause injury can be inferred as a matter of
law). We agree that for purposes of insurance coverage, forcible rape is an act which the
assailant knows with substantial certainty will cause harm to a victim of any age. Therefore,
exclusion o precludes Rivera's claim regardless of McNair's subjective intent.
VALIDITY OF THE CRIMINAL AND SEXUAL ACT EXCLUSIONS
[Headnote 3]
Professional liability policies exist for the protection of both the insured tortfeasor and the
injured party. Rivera asserts that if coverage were allowed, NMLIC could sue McNair for
indemnification. Therefore, nullifying the exclusions could compensate Rivera without
punishing NMLIC. Insurance companies generally may exclude coverage for intentional acts
as a means of limiting their liability and deterring wrongful conduct. However, Rivera
reasons that permitting these exclusions makes bad public policy when the tortfeasor never
contemplated that his or her intentional act was insured.
__________

2
These jurisdictions and corresponding cases are: Roe v. State Farm Fire & Casualty Company, 376 S.E.2d
876 (Ga. 1989); Auto-Owners Ins. Co. v. Gardipey, 434 N.W.2d 220 (Mich.App. 1988); Farmers Ins. Co. of
Wash. v. Edie, 763 P.2d 454 (Wash.App. 1988); Horace Mann Ins. Co. v. Leeber, 376 S.E. 2d 581 (W.Va.
1988); K.A.G. By Carson v. Stanford, 434 N.W.2d 790 (Wis.App. 1988).
policy when the tortfeasor never contemplated that his or her intentional act was insured. She
asserts that McNair probably did not purchase insurance to cover his own wrongful conduct
and hence his act should remain covered. See New Amsterdam Casualty Co. v. Jones, 135
F.2d 191 (6th Cir. 1943) (victim of intentional shooting could recover from tortfeasor's policy
because the shooting could not have been in contemplation of the insured when he purchased
the insurance).
There are three problems with Rivera's rationale. First, how does one distinguish between
an act that the tortfeasor would have committed anyway, and an act that the tortfeasor
committed because he knew he was insured? We see no reason why an insured professional
would be less likely to purchase insurance in contemplation of tortious conduct than anyone
else who would buy coverage for that purpose.
Second, even though the basic idea behind insurance is to compensate the injured, an
insurance policy is nothing more than a contract between the insured and the carrier. If the
insured does not purchase a specific kind of insurance, the carrier has no obligation to pay,
even if an injured person deserves to be compensated. Therefore, insurance companies may
specifically exclude anything from their policy that state law does not forbid them from
excluding.
Finally, insurance companies base their premiums on the items covered in the policies.
The average law-abiding professional would not desire to pay more so that the policy would
cover their own criminal or intentionally tortious conduct. See Washington Ins. Guar. Ass'n v.
Hicks, 744 P.2d 625 (Wash.App. 1987) (purchasers of professional liability coverage contract
do not expect coverage for sexual assault).
We conclude that these three explanations amply refute Rivera's contention that public
policy considerations disfavor the enforcement of intentional, criminal, and sexual act
exclusions in professional liability policies. Since NMLIC specifically excluded McNair's act
from its policy, the company has no obligation to pay for Rivera's injuries. We therefore
affirm the district court's order granting NMLIC's motion for summary judgment.
Springer, Steffen and Young, JJ., concur.
The central question presented by this case is whether this court should recognize a policy
exclusion for an act of sexual molestation committed by a gynecologist. I suggest that such an
exclusion is void as against public policy.
The majority concludes that an insurance policy is nothing more than a contract between
the insured and the carrier. Such a simplistic view ignores the reality that medical
malpractice insurance is a means of providing compensation to injured parties. Indeed, many
courts have recognized that liability policies exist for the benefit of the injured party as well
as the insured. St. Paul Fire & Marine Ins. Co. v. Asbury, 720 P.2d 540, 542 (Ariz.App.
1986); St. Paul Fire & Marine Ins. Co. v. Mitchell, 296 S.E.2d 126, 128 (Ga.App. 1982);
Vigilant Ins. Co. v. Kamby, 319 N.W.2d 382, 385 (Mich.Ct.App. 1982); Hartogs v.
Employers Mut. Liab. Ins. Co. of Wisc., 391 N.Y.S.2d 962, 964 (Wis. 1977); L.L. v. Medical
Protective Co., 362 N.W.2d 174, 179 (Wis.Ct.App. 1984).
The focus should be on the injured victim. A woman is vulnerable to her gynecologist.
There could be no greater exploitation of a patient's inherent vulnerability than nonconsensual
sexual assault. In such cases, when women are being subjected to traumatic, emotional and
physical injury, an adequate system of compensation must be available.
Insurance is a means for compensating the victims of such malpractice injuries. Coverage
is reasonable where the tortious act is also an act of malpractice. See, e.g., Cotton v. Kambly,
300 N.W.2d 627, 629 (Mich.App. 1981) (potential criminal liability does not negate
malpractice claim against psychiatrist for inducing patient into sexual relationship); see also
St. Paul Fire & Marine Ins. Co. v. Asbury, 720 P.2d 540, 542 (Ariz.App. 1986) (public policy
supports finding of insurance coverage where improper sexual manipulations occurred during
gynecological examination).
For these reasons I would reverse the order of the district court.
___________
107 Nev. 456, 456 (1991) State, Dep't of Mtr. Vehicles v. Becksted
SAFETY, Appellant, v. MARK E. BECKSTED, Respondent.
No. 21308
June 27, 1991 813 P.2d 995
Appeal from an order of the district court reversing a Department of Motor Vehicles
hearing officer's decision to revoke respondent's driving privileges. Fifth Judicial Court, Nye
County; Paul C. Parraguirre, Judge.
Driver brought action to challenge revocation of driving privileges by Department of
Motor Vehicles and Public Safety. The district court ruled in favor of driver.
district court ruled in favor of driver. Department appealed. The supreme court held that: (1)
evidence supported conclusion that driver did not consent to evidentiary test for drug-alcohol
intoxication, and (2) driver's voluntary intoxication, combined with commingling of implied
consent warnings and Miranda recitation, did not render driver incompetent to refuse test.
Reversed.
Frankie Sue Del Papa, Attorney General, Carson City; Keith D. Marcher, Deputy
Attorney General, Las Vegas; Rex Bell, District Attorney, Clark County, for Appellant.
J. Forest Cahlan, Pahrump, for Respondent.
Review of administrative agency's decision is limited to determination of whether there is substantial evidence in support of
decision; court may not substitute its judgment for that of agency as to weight of evidence on questions of fact.
2. Automobiles.
Evidence supported conclusion of Department of Motor Vehicles and Public Safety that driver failed to submit to evidentiary test
for drug-alcohol intoxication after being warned that failure to submit would result in revocation of license; driver initially refused to
take any tests, and a subsequent statement Well, do what you have to do could be interpreted as consent or as a statement to take
away license.
3. Automobiles.
Voluntary intoxication by itself may not render driver incapable of refusing to take evidentiary test.
4. Automobiles.
Driver's voluntary intoxication, combined with commingling of implied consent warnings and Miranda recitation, did not render
driver incompetent to refuse drug-alcohol test; driver did not invoke right to counsel. U.S.C.A.Const. amends. 5, 6.
OPINION
Per Curiam:
On March 24, 1989, at approximately 10:30 A.M., Officer Van Cleef, while traveling
westbound on Russell Road, observed a white Jeep speeding northbound on Mountain Vista.
Officer Van Cleef paced the vehicle at 70 to 75 miles per hour in a posted 35 mile per hour
speed zone. The vehicle was observed crossing into oncoming traffic and passing another
vehicle on the right. The vehicle stopped at Mountain Vista and Tropicana and the officer
executed a traffic stop. The driver of the vehicle was identified as Mark E. Becksted, the
respondent.
Respondent had an odor of alcohol on his breath, his speech was slurred, and when he
exited the vehicle, he had difficulty in standing.
standing. Officer Van Cleef testified that there were eight Miller Lite beer bottles in the
Jeep. No field sobriety test was administered for safety reasons.
1
Respondent was arrested
for driving under the influence and transported to the Clark County Detention Facility.
En route to the jail, Officer Phillips, who was riding with Officer Van Cleef, read the
implied consent admonition to respondent. Respondent stated that he would not take a breath,
blood or urine test. Officer Van Cleef then completed a notice of revocation form.
Respondent testified that on the way to the station, Officer Van Cleef turned around and
asked him if he would submit to a blood alcohol test. Respondent replied: Yes, do whatever
you have to do. Officer Van Cleef responded to this testimony with the following statement:
I, the only response I have to it is the fact that Mr. Becksted was highly intoxicated to
the point where he was oblivious to what was going on around him and when I advised
him that he would lose his driver's license for a period of one year if he did not submit
to a test he said well you do what you have to do and that's when he said that.
[Headnote 1]
Review of an administrative agency's decision is limited to the determination of whether
there is substantial evidence
2
in support of the decision. State Dep't Mtr. Veh. v. Jenkins, 99
Nev. 460, 663 P.2d 1186 (1983). A court may not substitute its judgment for that of the
administrative agency as to the weight of the evidence on questions of fact. Id.
[Headnote 2]
The administration hearing officer determined that respondent failed to submit to an
evidentiary test (for drug-alcohol intoxication) after being warned by the police that failure to
submit would result in the revocation of his license. The district court reversed the hearing
officer, determining that respondent did give his consent to submit to an evidentiary test. The
present question is whether the administrative hearing officer's decision was supported by
__________

1
Respondent was subsequently placed under arrest for possession of an unregistered firearm which was in
the vehicle. Additionally, respondent became violent and tried to run when the officers attempted to handcuff
him. Respondent was advised of additional chargesresisting arrest.

2
In State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 729 P.2d 497 (1986), this court defined substantial
evidence as that which a reasonable mind might accept as adequate to support a conclusion. Id. at 608, 729
P.2d at 498.
Officer Van Cleef testified that Officer Phillips read respondent the implied consent
warning, at which time respondent indicated that he would not take any breath, blood or urine
tests. Respondent testified that Officer Van Cleef asked him if he would take a blood alcohol
test to which he responded: Yes, do whatever you have to do. Officer Van Cleef then
testified that, upon advising respondent that he would lose his driver's license for a period of
one year if he did not submit to a test, respondent replied: Well, do what you have to do.
The present ambiguity stems from the meaning of respondent's statement: Well do what
you have to do. Such a statement could mean do the blood test or it could mean take
away my license.
3
The administrative officer was in the best position to determine what
respondent meant by that statement. The administrative officer determined that respondent
did not consent to an evidentiary test, and we conclude that his decision was supported by
[Headnotes 3, 4]
Appellant also contends that he was incapable of refusing to take an evidentiary test.
Voluntary intoxication, by itself, may not render an individual incapable of refusing to take an
evidentiary test. See State, Dep't Mtr. Vehicles v. Brown, 104 Nev. 524, 762 P.2d 882 (1988).
However, appellant contends that intoxication, combined with a commingling of implied
consent warnings and a Miranda recitation, can render one incompetent to refuse a
drug-alcohol test. See Schroeder v. State, Dep't of Motor Vehicles, 105 Nev. 179, 772 P.2d
1278 (1989).
In Schroeder, appellant requested an attorney before submitting to a chemical sobriety test.
Id. at 181, 772 P.2d at 1279. Because the right to counsel does not attach in implied consent
situations, this court treated appellant's response as a refusal to take the test. Id. The court
noted that appellant was read his Miranda rights after the invocation of counsel. Thus, we
concluded that Schroeder's refusal to take a test was not the result of any commingling of the
implied consent law warnings and a recitation of Schroeder's Miranda rights. Id.
In the present case, respondent was read his Miranda rights and his implied consent
warning at the same time. Unlike Schroeder, however, respondent did not invoke counsel. We
conclude that the holding in Schroeder is limited to cases where the defendant refuses to
take an evidentiary test based upon his invocation of counsel.
__________

3
Even if the statement is construed to mean do the blood test, respondent's initial refusal to take the test
would still control. See Schroeder v. State, Dep't of Motor Vehicles, 105 Nev. 179, 772 P.2d 1278 (1989) (initial
refusal to take chemical sobriety test is final; accused has no right to cure the original refusal).
the defendant refuses to take an evidentiary test based upon his invocation of counsel. Thus,
Schroeder has no applicability to the present case.
For the foregoing reasons, we reverse the judgment of the district court.
___________
107 Nev. 460, 460 (1991) Roy v. Lancaster
LEONARD A. ROY, SR. and SHIRLEY H. ROY, Appellants, v. J. C. LANCASTER and
FERN LANCASTER, Respondents.
No. 21332
June 27, 1991 814 P.2d 75
Appeal from a partial summary judgment and a judgment granting respondents sole title
and interest in real property. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Quiet title action was filed regarding land encompassed by unpatented mining claims.
Defendants counterclaimed for slander of title. The district court granted summary judgment
in favor of plaintiffs on fee simple title issue, and after two-day bench trial, ruled that
defendants had failed to take title by adverse possession. Defendants appealed. The supreme
court, Young, J., held that: (1) genuine issue of material fact existed as to whether mining
claims had ever been patented so as to authorize Reconstruction Finance Corporation to
transfer fee simple title to grantees on behalf of United States, and (2) United States was
indispensable party in adverse possession action.
Lamond R. Mills, Las Vegas; Miller & Leher, Littleton, Colorado, for Appellants.
Joseph W. Houston, Las Vegas, for Respondents.
1. Judgment.
Genuine issues of material fact existed as to whether mining claims at issue were ever patented and whether fee simple title to
them remained vested in United States or passed to grantees precluding summary judgment in favor of grantees in quiet title action. 30
U.S.C.A. 29.
2. Mines and Minerals.
Unpatented mining claim represents only possessory interest; it does not confer fee simple title. 30 U.S.C.A. 29.
3. Mines and Minerals.
United States, as original grantor, was indispensable party to adverse possession action regarding mining claims absent any
evidence that disputed mining claims were duly patented so as to give Reconstruction Finance Corporation authority to transfer fee
simple title on behalf of United States to claimants.
OPINION
Both parties to this appeal claim title to real property in Henderson, Nevada. Prior to trial,
the district court granted partial summary judgment to respondents. The court ruled as a
matter of law that respondents held fee simple title to the property in question. The court also
denied appellants' motion to join the United States as a party. The court subsequently granted
sole title and interest in the property to respondents.
Proper resolution of this appeal requires that we trace the chain of title to the property in
question. On May 13, 1955, the United States, through the Reconstruction Finance
Corporation (RFC), quitclaimed surplus real property to Manganese, Inc. The quitclaim deed
described thirteen patented mining claims and thirty-two other claims characterized as
UNPATENTED CLAIMS (LOCATED). The claims are referred to in the RFC deed and in
succeeding deeds as the Hydro-A claims. The unpatented claims are the subject of this
case.
On November 16, 1961, Manganese, Inc., quitclaimed its interest in the unpatented
Hydro-A claims to the Milton J. Wershow Company (Wershow). Wershow, in turn,
quitclaimed them to the Clark County Land & Water Company on February 13, 1963. On
March 15, 1976, Valley Bank of Nevada, as trustee for the Clark County Land & Water
Company, deeded the claims to respondents J. C. and Fern Lancaster.
On January 30, 1980, appellants Leonard and Shirley Roy secured a quitclaim deed to
approximately six hundred acres of property from Howmet Corporation, the successor in
interest to Manganese, Inc. The Roy's deed encompassed the same Hydro-A unpatented
claims that Valley Bank had quitclaimed to the Lancasters in 1976, as well as additional
claims not included in the Lancaster deed.
Appellants and respondents both claim that the original 1955 conveyance by RFC to
Manganese, Inc., transferred a fee simple interest in the land encompassed by the unpatented
Hydro-A claims. However, appellants claim that Manganese, Inc., merely conveyed the
unpatented claims to Wershow Co., respondents' predecessor in interest, while it retained
the fee simple title for itself.
predecessor in interest, while it retained the fee simple title for itself. Appellants claim the fee
simple title was conveyed to them by Howmet Corporation in 1980, and that respondents'
interest in the unpatented claim has lapsed through their failure to file annual reports and
proof of assessment work with the Bureau of Land Management (BLM).
Respondents filed a quiet title action in the Eighth Judicial District Court in March 1989.
Appellants counterclaimed for slander of title. Both parties filed cross-motions for summary
judgment, each alleging they held fee simple title. The district court reviewed the various
deeds and concluded that respondents were the fee simple title holders. The court also found
that there were material questions of fact on whether appellants had assumed title by adverse
possession. A trial date was set. Two days prior to trial, appellants moved for joinder of the
United States as an indispensable party and for reversal of the court's order granting summary
judgment on the fee simple title issue. Both motions were denied. After a two-day bench trial,
the court ruled that appellants had failed to take title by adverse possession and awarded title
to respondents. Appellants appeal from this ruling.
[Headnote 1]
We believe the court below erred in concluding, as a matter of law, that the respondents
held fee simple title to the Hydro-A unpatented claims. Summary judgment is only
appropriate where, absent genuine issues of material fact, one party is entitled to judgment as
a matter of law. Leven v. Wheatherstone Condominium Corp., 106 Nev. 307, 309, 791 P.2d
450, 451 (1990). A litigant has the right to trial whenever the slightest doubt as to remaining
issues of fact exists. Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 623, 668 P.2d 1075,
1079 (1983). We are convinced that the determinative issue of who held fee simple title to the
subject property remained unresolved when the district court granted summary judgment.
We believe the district court was misled by the parties' agreement that a fee simple title to
the unpatented claims was created when RFC transferred the claims to Manganese, Inc., in
1955. Neither party disputed the grant of a fee simple title because the existence of such title
was necessary to their respective claims. The district court reviewed the deeds and agreed that
RFC had conveyed a fee simple title. The court then ruled, as a matter of law, that title was
vested in respondents. Apparently, appellants acquiesced in this finding because it did not
detract from their continuing adverse possession claim. The court subsequently ruled that
appellants had failed to take title by adverse possession.
[Headnote 2]
It is undisputed that the deeds in question conveyed unpatented claims. An unpatented
mining claim represents only a possessory interest. It does not confer fee simple title.
Congress has seen fit to make possession of that part of the public lands which is valuable
for minerals separable from the fee . . . . Belk v. Meagher, 104 U.S. 279, 283 (1881). The
patent is the instrument by which the fee simple title to the mining claim is granted. Creede
& Cripple Creek Mining & Milling Co. v. Uinta Tunnel Mining & Transp. Co., 196 U.S. 337,
347 (1905). See also St. Louis Smelting & Refining Co. v. Kemp, 104 U.S. 636, 640 (1881);
North Alaska Envtl. Center v. Lujan, 872 F.2d 901, 904 n.2 (9th Cir. 1989) (claimant does
not obtain fee simple absolute in the claim until it is patented). Therefore, in the absence of
proof that the Hydro-A claims at issue were ever patented, fee simple title to them remains
vested in the United States.
The General Mining Law of 1872 established detailed procedures for the patenting of
mining claims that are still followed today. The act requires that a mining claimant file an
application for a patent with the appropriate federal land office.
1
If no adverse claims are
filed within sixty days of the application, the patent is normally granted and the claimant
gains fee simple title upon payment of the appropriate fees. 30 U.S.C. 29 (1990).
The district court was not presented with evidence that either of the parties had complied
with the federal patenting requirements. Allowing respondents to obtain fee simple title to the
disputed claims by virtue of a quitclaim deed renders the federal patenting procedure
meaningless. It would also endanger the possessory interests of untold thousands of
unpatented claim holders. For these reasons, we are compelled to reverse the district court's
award of fee simple title to respondents.
__________

1
Prior to application, the claimant must have the claim surveyed by a mineral surveyor qualified by the
BLM. The survey must establish the exterior boundaries of the claim as marked by monuments on the ground,
any intersection with the lines of conflicting prior surveys, and any conflicts with unsurveyed claims. The
applicant is responsible for payment of the mineral surveyor. The application must be followed within sixty days
by certification that the claimant or parties acting on his behalf have expended $500 worth of labor or
improvements upon the claim. The mineral surveyor is required to report the value of all improvements having a
direct relation to development of the claim. The BLM will then plat the claim. The applicant must pay the costs
of preparing the plat, as well as any other office costs incurred by the BLM. The applicant is required to post a
copy of the plat of survey in a conspicuous place on the claim itself, together with notice of his intention to apply
for a patent therefor. After posting the plat, the applicant must file the plat and surveyor's field notes with the
appropriate land office along with the statements of two credible witnesses that the claim was properly and
conspicuously posted. 43 C.F.R. 3861.1-3861.7 (1990).
[Headnote 3]
We also conclude that the district court erred in failing to join the United States as a party.
Any action to gain title to real property by adverse possession requires the joinder as
defendants of all other persons who are known, or by the exercise of reasonable diligence
could be known, to plaintiff to have some claim to an estate, interest, right, title, lien, or cloud
in or on the land described in the complaint adverse to plaintiff's ownership . . . . NRS
40.090(2). We believe respondents, as plaintiffs below, were aware, or should have been
aware through the exercise of reasonable diligence, of the United States' interest in the subject
property. In the absence of a patent on the disputed claims, the United States retains fee
simple title to the land in question. Respondents would have this court ignore the federal
government's interest in this matter on the assumption that long ago it somehow transferred
all of its interest in the property through the actions of RFC. This assumption is incorrect in
the absence of proof that the disputed claims were duly patented. Respondents have failed to
present any authority stating that the RFC had the power to transfer fee simple title on behalf
of the United States.
Additionally, if a fee simple title is deemed to exist by virtue of the unpatented claims, we
are at a loss to see how the boundaries of the subject property can be determined to a legally
recognized certainty. The deeds relied upon by the parties refer only to Certificates of
Location filed when the claims were first staked some forty or more years ago. The markers
establishing these locations have perhaps long since deteriorated or disappeared. Unless the
Certificates of Location establish claim boundaries by reference to government surveys, we
do not believe they rise to the level of precision which would be desirable for a fee simple
estate.
For these reasons, we reverse and remand this matter to the court below.
Mowbray, C. J., Springer, Rose and Steffen, JJ., concur.
_____________
107 Nev. 465, 465 (1991) Villalpando v. State
MARSELINO ALVAREZ VILLALPANDO, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 20893
June 28, 1991 814 P.2d 78
Appeal from a district court order denying appellant's motion to vacate his guilty plea and
sentence. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Defendant was sentenced to imprisonment for robbery by the district court and he
appealed. The supreme court held that where defendant had breached plea agreement by
failing to appear for sentencing and lapse of time rendered trial difficult if not impossible,
prosecution would be instructed to recommend probation in accordance with the plea
agreement, but sentencing judge was not bound by the recommendation.
Reversed and remanded with instructions.
Dennis E. Widdis, Reno, for Appellant.
Attorney, Scott Edwards, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Defendant's appearance at sentencing was implied condition of plea agreement by which prosecution was to recommend
probation, where trial court warned defendant at time plea was entered that if he failed to appear for sentencing, possibility of leniency
would be gone.
2. Criminal Law.
Where defendant, by failing to appear for sentencing, breached plea agreement by which prosecution was to recommend probation,
and seven years had elapsed so that trial would be difficult if not impossible, defendant would not be allowed to withdraw his plea and
prosecution would be instructed to conform to its agreement to recommend probation, but sentencing judge was not bound by the
recommendation and could consider defendant's failure to appear at original sentencing as well as subsequent activities.
OPINION
Per Curiam:
Appellant, Marselino Villalpando, through appointed counsel, entered into a plea
agreement with the prosecution under which the prosecution had agreed to recommend
probation in exchange for appellant's plea of guilty to robbery. Appellant was then released
on his own recognizance and failed to appear at his sentencing.
sentencing. More than four years later, appellant was found and returned to court for
sentencing. At that time, the prosecution recommended a prison sentence, and appellant was
sentenced to six years in prison. We hereby reverse appellant's sentence and remand the case
to the district court for resentencing.
Appellant initially contends that he should have been allowed to withdraw his guilty plea
because the prosecution breached the plea agreement by failing to recommend probation. The
State counters that an implied condition of the plea agreement was that appellant would
appear for sentencing and that his failure to do so amounted to a breach of the agreement
which justified the prosecution's refusal to recommend probation.
[Headnote 1]
It will prove helpful to consider whether appellant's appearance at the sentencing hearing
was an implied condition of the plea agreement. Although appearance at the sentencing was
not an explicit element of the agreement, the district judge did give the following warning to
appellant at the time the plea was entered:
THE COURT: Alright. You understand, sir, that if I release you on your own
recognizance and you fail to appear for sentencing, you will be returned
here and any possibility you might have for leniency will be gone?
THE INTERPRETER: Yes, your honor.
We conclude that this warning by the judge made it clear that the appellant's appearance at
sentencing was a condition of the plea agreement. Further, without such a condition the plea
agreement itself would be illusory.
[Headnote 2]
The more complex question is whether appellant's breach of the plea agreement justifies
the prosecution's breach at the same time appellant remained bound by his guilty plea.
Appellant asserts that the prosecution's failure to recommend probation as agreed may have
stripped appellant's guilty plea of its voluntariness.
This court addressed a very similar situation in Gamble v. State, 95 Nev. 904, 604 P.2d
335 (1979). In Gamble, the defendant agreed to plead guilty to grand larceny and to stipulate
to probation revocation in exchange for the prosecution's promise not to file a separate
unrelated charge and to agree to concurrent sentences for the grand larceny and the probation
revocation. Some months after the plea agreement was reached a hearing was held to revoke
the defendant's probation. Gamble was represented by a different public defender than had
struck the plea agreement, and the State was also represented by a different deputy
district attorney. Id. at 906, 604 P.2d at 336.
sented by a different public defender than had struck the plea agreement, and the State was
also represented by a different deputy district attorney. Id. at 906, 604 P.2d at 336.
Subsequently, in Gamble a sentencing hearing was held with respect to the grand larceny
charge. At that hearing, the deputy district attorney recommended that the maximum sentence
be given and that it be set to run consecutively to the sentence imposed as a result of the
probation revocation. The district court followed the prosecutor's recommendation and
imposed a five-year sentence to run consecutively to the sentence on the probation revocation.
Gamble then sought and was denied post-conviction relief, contending that the plea
agreement was not followed and therefore the plea was involuntary. Id. at 906-907, 604 P.2d
at 336.
In Gamble we held that an evidentiary hearing is necessary to determine if a defendant has
breached a plea agreement and if so whether the breach is sufficiently material to warrant
releasing the prosecution from its promises. Id. at 907, 604 P.2d at 337. We noted that
because the defendant's rights are violated when a plea agreement is violated, the cause of
the prosecution's failure to keep its promises is irrelevant. Id. at 908, 604 P.2d at 337
(citations omitted). Finally, we held that if the defendant's actions are found to be a deliberate
repudiation of the plea agreement the proper remedy is the nullification of the plea bargain
and the withdrawal of the guilty plea thereon, since, if the bargain which is part of the
inducement of the plea is removed, the plea itself becomes a nullity. Id. at 908-909, 604 P.2d
at 337-338.
The Gamble decision repeatedly refers to and is consistent with Santobello v. New York,
404 U.S. 257 (1971), which held that when 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. In Santobello, the court remanded the case to
the state court for a determination as to whether the best result would be specific performance
of the plea agreement or withdrawal of defendant's guilty plea. Id. at 262.
In the instant case it is clear that appellant was induced into pleading guilty by the
prosecution's promise to recommend probation. Under Santobello, if appellant is to remain
bound by his guilty plea, so too is the prosecution to remain bound by its promise to
recommend probation.
In applying Gamble, it must first be determined whether the defendant or the prosecution
is to blame for the breach of the plea agreement. In the instant case, it is apparent that
defendant's failure to appear at his sentencing was to blame for the breakdown of the plea
agreement. Because Villalpando is obviously to blame in the instant case, we conclude that
an evidentiary hearing to determine blameworthiness is unnecessary.
blame in the instant case, we conclude that an evidentiary hearing to determine
blameworthiness is unnecessary. Based upon Villalpando's blameworthiness with respect to
breach of the plea agreement, a strict application of Gamble would require us to allow
appellant to withdraw his plea. We are unwilling to do so on the facts of this case. The
problem with allowing appellant in this case simply to withdraw his plea is that because this
case is now more than six years old and because the victim was seventy years old at the time
of the crime, prosecution and trial at this time would be very difficult if not impossible.
For the foregoing reasons, we order that the plea agreement be followed and that the case
be remanded to the district court for resentencing. The case is to be assigned to a judge other
than Judge Adams, and the prosecution is instructed to recommend probation in accordance
with the plea agreement. The sentencing judge is not bound by the prosecution's
recommendation and is free to consider Villalpando's failure to appear at his original
sentencing as well as his subsequent activities.
The other issues raised by appellant lack merit. We reverse appellant's sentence and
remand the case to the district court.
___________
107 Nev. 468, 468 (1991) Clayton v. Gardner
GENE D. CLAYTON and LINDA R. CLAYTON, Jointly and Severally, Appellants, v.
WILLARD O. GARDNER, Respondent.
No. 21260
June 28, 1991 813 P.2d 997
Appeal from an order of the district court granting summary judgment in favor of
respondent. Fourth Judicial District Court, Elko County; Thomas L. Stringfield, Judge.
Lender brought action for collection of debt under two promissory notes. On lender's
motion for summary judgement of the district court, district judge granted summary judgment
on installment payments that were due no more than six years before commencement of
action. Borrower appealed. The supreme court held that: (1) no implied acceleration took
place on borrower's default, and (2) prior to acceleration, applicable six-year statute of
limitations began to run only with respect to each installment when due.
Affirmed.
Houston & Freeman and Moreen Scully, Reno, for Appellants.
Vaughan, Hull, Copenhaven & Zingale, Elko, for Respondent.
1. Bills and Notes.
Activation of acceleration clause requires some affirmative conduct on part of lender.
Where contract obligations are payable by installments, limitations statute begins to run only with respect to each installment when
due, unless lender exercises his or her option under acceleration clause to declare entire note due.
3. Bills and Notes; Limitation of Actions.
No implied acceleration of borrower's obligations under two promissory notes occurred, even though no installment payments were
made, until lender took affirmative action to accelerate debt; thus, until debts were accelerated, applicable six-year statute of
limitations began to run only with respect to each installment when due.
OPINION
Per Curiam:
In April of 1981, appellant Gene Clayton (Clayton) delivered to respondent Willard
Gardner (Gardner) two promissory notes, one for $60,550.00 and another for $110,000.00.
Each note provided that Clayton was to satisfy his debt to Gardner through a series of
installment payments. In addition, each note contained an acceleration clause, which provided
that, if Clayton should miss one of the installment payments, Gardner had the option of
declaring the entire note due. Clayton never made a single payment on either of the notes. In
1988, therefore, Gardner activated the acceleration clauses, and demanded the entire balance
from Clayton. When Clayton still failed to pay, Gardner brought this action for collection in
1989.
Clayton's sole defense to Gardner's action was that, since Gardner's lawsuit was brought in
1989, and the initial defaults occurred in 1982, collection of the debts was barred by the
six-year statute of limitations.
1
The district court held however, that the limitations statute
had run only on the installment payments that were due more than six years before Gardner
commenced this action. In addition, because Clayton asserted no defense other than the
statute of limitations, the district court granted summary judgment in favor of Gardner on
those installment payments that were not time barred.
__________

1
The applicable statute of limitations in this action is NRS 11.190, which provides, in pertinent part:
Actions . . . can only be commenced as follows: 1. Within six years: . . . (b) An action upon a contract,
obligation or liability founded upon an instrument in writing . . . .
Clayton now appeals. On appeal, Clayton again argues that collection of the entire debt
was foreclosed by the statute of limitations.
2
We have concluded, however, that the action of
the court below was proper, and we therefore affirm.
Appellant contends that Gardner's entire action is barred by the statute of limitations. The
premise of this argument is that the acceleration clauses operated automatically upon
Clayton's initial defaults, and that therefore, the entire balance on the notes came due at that
time. Further, appellant asserts, because the entire balance on each note became collectable
soon after the initial default, the six-year statute of limitations began to run, and expired some
time in 1988. Since Gardner did not bring this lawsuit until 1989, Clayton contends this
action is time barred.
[Headnote 1]
Although the issue is one of first impression in Nevada, this area of the law has been
discussed often by the courts in other states. To begin, many courts have held that the
activation of an acceleration clause requires some affirmative conduct on the part of the
lender. In Moresi v. Far West Services, 291 F.Supp. 586, 588 (D. Hawaii 1968), the court
stated that,
[t]he law is well settled that where the acceleration of the installment payments in
cases of default is optional on the part of the holder, then the entire debt does not
become due on the mere default of payment but affirmative action on the part of the
creditor must be taken. . . .
In addition, the court in United States v. Feterl, 849 F.2d 354, 357 (8th Cir. 1988), observed
that acceleration is seldom implied, and courts usually require that an acceleration be
exercised in a manner so clear and unequivocal that it leaves no doubt as to the lender's
intention. . . .
[Headnote 2]
It is further settled that where contract obligations are payable by installments, the
limitations statute begins to run only with respect to each installment when due, unless the
lender exercises his or her option to declare the entire note due. Trigg v. Arnott, 71 P.2d 330
(Cal.App. 1937); In re Light, 585 P.2d 311, 312 (Colo.App. 1978); Thomas v. Goff, 596 P.2d
794, 797 (Idaho 1979); Welty v. Western Bank of Las Cruces, 740 P.2d 120, 122 {N.M.
19S7).3
__________

2
Additionally, Clayton contends that the district court erred when it denied his request to extend discovery.
We have concluded that this contention is without merit.
1979); Welty v. Western Bank of Las Cruces, 740 P.2d 120, 122 (N.M. 1987).
3

[Headnote 3]
An application of these principles to the instant case reveals that the action taken by the
district court was clearly proper. To begin, the trial court was correct in holding that no
implied acceleration took place, since the acceleration clause required affirmative action on
the part of the lender, and Gardner took no such action until 1988. Thus, until 1988, the
statute of limitations began to run only with respect to each installment when due.
Consequently, only those installments that were due more than six years prior to January 11,
1989 (the day when this action was initiated), are barred by the limitations statute. Because
the district court so held, we affirm the ruling of the district court.
____________
107 Nev. 471, 471 (1991) Western Heritage Thrift & Loan v. Cloutier
WESTERN HERITAGE THRIFT AND LOAN, Appellant, v. JAMES MITCH CLOUTIER
AND G. NORMAN CLOUTIER, Respondents.
No. 21299
June 28, 1991 813 P.2d 999
Appeal from an order of the district court granting respondents' motion to set aside a
foreign judgment. Second Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Lender sought to enforce Utah deficiency judgment against equipment lessees. The district
court determined that Utah court lacked personal jurisdiction over lessees. Lender appealed.
The supreme court, Young, J., held that lessees lacked sufficient contacts with Utah to permit
exercise of personal jurisdiction in lender's action for deficiency judgment.
Affirmed.
__________

3
The rationale behind this rule is that if the statute of limitations were to begin to run on the entire debt
immediately following default on a single installment, then lenders would be forced to file suit immediately,
rather than allow borrowers a chance to cure. Such an outcome, courts have observed, would increase the
amount of litigation in these matters, as well as make the consequences of a single default far more severe to
borrowers.
Silverman and Decaria, and Victoria S. Mendoza, Reno, for Appellant.
Paul A. Richards, Reno, for Respondents.
Constitutional Law; Courts.
Nevada equipment lessees lacked sufficient contacts with Utah to support Utah court's exercise of specific jurisdiction in
compliance with due process in Utah lender's action for deficiency judgment; lessees did business with Nevada lessor that arranged for
financing, and all direct contact between lessees and lender occurred after conclusion of financing arrangements and was random,
fortuitous, or attenuated. U.S.C.A.Const. amends. 5, 14; Utah Code Ann. 78-27-24(1) (1953).
OPINION
Respondents leased a loader and trailer from the Case Equipment Company dealership in
Reno. The dealership arranged for financing through appellant, a thrift institution located in
Sandy, Utah. Respondents filled out a credit application at the Case dealership in Reno. Case
sent the application to appellant, which approved the loan and sent a check to the dealership.
Respondents sent their payments to Utah.
Respondents subsequently defaulted on their payments. Appellant repossessed the loader
and trailer and took them to Utah. Respondents corresponded with appellant in an effort to
redeem the property. When these negotiations proved fruitless, appellant sold the equipment
for less than the balance owed on the lease agreement. Appellant then obtained a Utah
deficiency judgment. The judgment was filed with the Nevada Second Judicial District Court
under the Uniform Foreign Judgments Act, NRS 17.330-17.400.
Respondents moved for dismissal of the foreign judgment, alleging that the Utah court
lacked jurisdiction. In granting respondents' motion, the trial court stated:
Subjecting the Cloutiers to the jurisdiction of the Utah court would be inconsistent
with the due process clause of the Fourteenth Amendment. They purchased the Case
loader in Nevada from a Nevada dealer to be used in Nevada, and the dealer provided
financing through a Utah lending institution. There were no actual activities of any kind
in the State of Utah by the defendants. This Court cannot find that the execution of the
lease to finance purchase of the equipment in the State of Nevada created activities or
consequences substantial enough to make the exercise of jurisdiction by the State of
Utah reasonable.
substantial enough to make the exercise of jurisdiction by the State of Utah reasonable.
The court then ruled that the Utah long-arm statute
1
unconstitutionally exceeded the bounds
of the Fourteenth Amendment Due Process Clause.
While appellant is correct in stating that the district court erred in declaring the Utah
long-arm statute unconstitutional, we disagree with appellant's assertion that reasonableness
should not be considered in determining the existence of specific jurisdiction. The trial court's
refusal to apply the Utah statute was correct as an as applied due process violation. We
have previously held that, where a cause of action does not arise out of a nonresident
defendant's acts in the forum, the assertion of specific jurisdiction would be unreasonable.
Munley v. District Court, 104 Nev. 492, 495, 762 P.2d 414, 416 (1988); Shapiro v.
Pavlikowski, 98 Nev. 548, 550, 654 P.2d 1030, 1031 (1982).
This case is controlled by the decision in Burger King Corp. v. Rudzewicz, 471 U.S. 462
(1985). In upholding the exercise of jurisdiction by a Florida court over a Michigan
defendant, the Court determined that Rudzewicz had deliberately reached out beyond
Michigan to establish a contractual relationship with a Florida corporation. 471 U.S. at 479.
The Court opined that in no sense can this relationship be viewed as random,' fortuitous,'
or attenuated.' 471 U.S. at 475, quoted in Munley, 104 Nev. at 495, 762 P.2d at 416.
Appellant has failed to establish that the respondents reached out to Utah when they
leased their backhoe and trailer. They did business with a Reno dealership. The dealer
arranged for financing with the appellant. All direct contact between appellant and
respondents occurred after the financing arrangements were concluded. This type of contact
approximates the random, fortuitous, or attenuated contact distinguished by the Court
in Burger King. We therefore hold that respondents' contacts with Utah were insufficient to
support the exercise of specific jurisdiction by the Utah court.
We are also mindful that dismissal of this appeal will not leave appellant without recourse
to satisfy its deficiency. Appellant remains free to sue respondents in Nevada for any funds
remaining due on the lease agreement. Accordingly, we hereby affirm the ruling of the district
court setting aside the foreign judgment.
Springer, Rose and Steffen, JJ., concur.
__________

1
Utah Code Ann. 78-27-24(1) (1953 as amended).
The present question is whether the State of Utah has jurisdiction to render judgment on a
contract entered into by a Utah thrift institution and Nevada residents.
This case is controlled by Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). In
Burger King, a Michigan resident contracted with a Florida corporation in order to establish a
franchise relationship. The Florida corporation, Burger King, brought suit in Florida alleging
breach of contract for failure to make the required franchise payments (payments to be made
in Miami, Florida). Respondent Rudzewicz contested jurisdiction on the grounds that he did
not have the requisite minimum contacts with Florida. Rudzewicz had no physical ties to
Florida, other than a brief training course in Miami. Id. at 479.
The Court determined that Florida had jurisdiction over Rudzewicz. The Court concluded
that the contractual relationship was sufficient to establish minimum contacts for
jurisdictional purposes. See id. at 479. Rudzewicz had reached out beyond Michigan by
negotiating with a Florida corporation for the purchase of a long-term franchise. Id.
In the present case, respondents reached out beyond Nevada when they agreed to
financing by a Utah thrift institution. Respondents filled out a credit application which was
sent to appellant for approval of the loan. Upon approval of the loan, respondents sent their
payments to Utah. When respondents subsequently defaulted on the loan, appellant brought a
breach of contract action in Utah and obtained a deficiency judgment.
The present case is indistinguishable from Burger King. In both cases, a corporation sued a
non-resident for breach of contract. In both cases, the non-resident failed to make required
payments at an address located in the forum state. In both cases, the non-resident deliberately
reached out beyond, establishing contact with a foreign state. Since Burger King cannot be
distinguished, jurisdiction is present in the instant case.
For the above reasons, I conclude that Utah had jurisdiction to entertain a deficiency
judgment action, and maintain that this court is obligated to give Full Faith and Credit to the
judgment delivered by our sister state.
____________
107 Nev. 475, 475 (1991) State, Dep't of Mtr. Vehicles v. Rowland
SAFETY, Appellant, v. ROBERT ROWLAND, Respondent.
No. 21471
June 28, 1991 814 P.2d 80
Appeal from district court order reinstating respondent's driving privileges. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
After driver's permit was revoked for driving under the influence of alcohol, order
reinstating driving privileges was issued by the district court and State appealed. The supreme
court held that: (1) district court placed undue importance on fact that two paragraphs of
breath-testing machine checklist were allegedly not checked; (2) district court also accorded
undue importance to conflict in the dates of testing officer's certification; (3) there was no
requirement that margin of error inherent in breath-test machine be taken into account; (4) it
was error to base decision to reinstate driving privileges on failure of the Department of
Motor Vehicles to produce original documents at administrative hearing; and (5) relief was
not warranted on ground that there was no evidence that breath-testing device was properly
maintained.
Reversed.
[Rehearing denied October 8, 1991]
Frankie Sue Del Papa, Attorney General, Carson City, and Keith D. Marcher, Deputy
1. Automobiles.
Paragraphs on checklist for blood alcohol breath test, directing officer to remove test printout and fill in information on all copies
and to record necessary information below and in logbook, are self-authenticating and checking the boxes next to the paragraphs was
mere formality, so that omission did not invalidate the test, where the substantive information called for was supplied by the testing
officer. NRS 484.379, subd. 1.
2. Automobiles.
Conflicting exhibits as to date of testing officer's certification did not invalidate breath test results so as to preclude license
revocation based thereon, where, according to either exhibit, officer was certified at the time the breath test was conducted.
3. Automobiles.
Margin of error did not have to be taken into account before determining whether motorist had 0.10 percent or more alcohol in his
blood, for purposes of revocation of driver's license.
blood, for purposes of revocation of driver's license. NRS 484.379, subd. 1.
Generally, unsupported arguments are summarily rejected on appeal.
5. Automobiles.
Findings supporting revocation of driver's permit for operating vehicle while under the influence of intoxicating liquor were
supported by substantial evidence, including failure to pass field sobriety tests, as well as breath test showing 0.11 percent blood
alcohol. NRS 484.379, subd. 1.
Within statute providing that documentary evidence may be received in the form of authenticated copies or excerpts if the original
is not readily available, interest in protecting original documents from loss or destruction is sufficient reason to declare them not
readily available at an administrative hearing, unless a subpoena duces tecum is issued. NRS 233B.123, subd. 2.
7. Automobiles.
It was error to reinstate driver's permit in driving under the influence case on ground that Department of Motor Vehicles failed to
produce original documents at administrative hearing, where motorist did not summon originals by means of subpoena duces tecum,
compare certified copies with originals, or have someone do so, but merely sent a letter requesting to view the originals. NRCP 45(b),
(c); NRS 233B.123, subd. 2.
8. Automobiles.
In proceeding for revocation of driver's permit for driving under the influence, it was burden of motorist to establish that
breath-testing machine was not properly maintained, or to show that he had unsuccessfully tried to inspect or obtain information about
the machine.
OPINION
Per Curiam:
The State of Nevada, Department of Motor Vehicles and Public Safety (DMV),
challenges the district court's order reinstating respondent Rowland's driving privileges after
the DMV, through its hearing officer, determined that the arresting officer was correct in
revoking Rowland's driver's permit for driving under the influence of alcohol. After
reviewing the record, we are convinced that the lower court erred in its ruling and therefore
reverse.
Officer Mahoney of the Las Vegas Metropolitan Police Department was traveling
southbound on Jones Boulevard in Las Vegas when a vehicle made a right turn from an
eastbound street onto Jones Boulevard and proceeded ahead of Mahoney. Officer Mahoney
paced the vehicle and determined that it was traveling in excess of 55 miles per hour in a
45-miles-per-hour posted zone.
zone. Mahoney and the other vehicle stopped at a red light at the Jones Boulevard and Spring
Mountain Road intersection. Mahoney notice that the other vehicle waited approximately ten
to fifteen seconds after the light turned green before it proceeded through the intersection.
After the two vehicles passed through the intersection, Mahoney conducted an investigatory
stop. Respondent Rowland was the driver of the other vehicle.
After Rowland stepped out of his vehicle in accordance with Officer Mahoney's request,
the officer noticed that Rowland's gait was unsteady. Mahoney also noticed that Rowland's
speech was slurred and that his breath smelled of alcohol. Rowland admitted to drinking a
few beers earlier that evening at a bachelor party. Rowland agreed to take a series of five field
sobriety tests and failed each test. The officer thereafter arrested Rowland for
DUI-intoxication, read him the Nevada Implied Consent warning, and transported him to the
Clark County Detention Center for testing.
Rowland chose to take a breath test, the results of which revealed a blood alcohol level of
0.11. Mahoney then gave Rowland a DMV notice of revocation and a seven-day temporary
driver's license. Rowland's Nevada driver's license was confiscated.
Rowland challenged the revocation of his driver's license in an administrative proceeding
held on November 30, 1989. The hearing officer found that there was sufficient proof that
Rowland was operating his vehicle while under the influence of an intoxicating liquor and
affirmed the revocation. Rowland petitioned the district court for judicial review. The district
court held that:
(1) the breath operator did not follow and complete the checklist as required by the
committee on testing for intoxication; (2) the evidence presented as to the breath
operator's certification was in conflict; (3) there was a lack of substantial evidence to
show that petitioners [sic] blood alcohol was a .10 or more percent by weight of alcohol
because of the error factor in the breath testing; (4) the petitioner was not given the
opportunity to compare the originals with copies that were presented as evidence in
violation of NRS 233B.123(2); and (5) there was no evidence presented that the breath
machine was maintained as required by the regulations which have been adopted by the
committee for testing on intoxication (see NRS 484.398(4)) [NRS 484.389(4)].
The district court reversed the revocation and reinstated Rowland's driving privileges.
Analysis
A. The Verax BAC Verifier Checklist
[Headnote 1]
The district court first placed undue, if not unjustified, importance on the fact that
paragraphs 12 and 13 of the Verax BAC Verifier checklist were allegedly not checked. This
omission, which appeared to be effectively refuted by the DMV's more legible copy of the
checklist which the district judge declined to consider, should not have been, in any event, a
basis in whole or in part for overruling the administrative agency. NRS 484.379(1) reads:
It is unlawful for any person who . . . [i]s under the influence of intoxicating liquor; or .
. . [h]as 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.
The reliable information which may be gleaned from the checklist amply supports the hearing
officer's finding that Rowland was operating his vehicle in violation of the statute.
Paragraph 12 of the checklist reads: Instrument will automatically print out the results.
REMOVE TEST PRINTOUT and fill in information ON ALL COPIES. CORRECT
TIME/DATE IF NECESSARY. INITIAL. (Emphasis original.) The DMV's exhibit 8 is a
copy of the completed test printout referred to in paragraph 12. The testing officer properly
provided the necessary information. Paragraph 13 reads: RECORD necessary information
below and in the D.U.I. LOGBOOK.
(Emphasis added.) Below this paragraph, the results of the tests were filled in by the testing
officer. Therefore, paragraphs 12 and 13 are self-authenticating.
Moreover, the intent of paragraphs 12 and 13 is to ensure that the appropriate
informationthe test resultsis provided by the testing officer once it becomes available.
NAC 484.670(1).
1
As noted above, the testing officer did this. Checking the boxes next to
the paragraphs, even if omitted, was merely a formality given the substantive information
supplied by the testing officer. Any such omission was therefore not material.
__________

1
The code provision reads:
A certified operator of an evidential breath-testing device:
1. In the ordinary course of his business and at the time he is performing a test of a person's breath,
shall use, follow the instructions in, and enter the appropriate information on the Checklist for Operators
of Breath-Testing Devices which is prepared by the director of the department of motor vehicles and
public safety for use with the specific type of device that he is operating.
Our review of the record causes us to conclude that at the very least, the DMV
substantially complied with the mandates of NAC 484.670(1) and that there is substantial
evidence that Rowland operated his vehicle with a blood alcohol level in excess of 0.10
percent. The hearing officer did not err by considering this document when he upheld
Rowland's revocation.
B. Conflict in the Certification Dates of the Testing Officer
[Headnote 2]
The district court also accorded undue importance to a conflict in the dates of the testing
officer's certification. Although the conflict exists, Rowland suffered no prejudice therefrom.
DMV's Exhibit 2 indicates that Officer Korb was certified on August 4, 1989, and its Exhibit
3 reflects a certification date in July, 1989. It is of no great concern in this case whether Korb
was first certified in July or August of 1989. There is no evidence suggesting that Korb was
not certified when the breath test was conducted in October of 1989.
C. The Margin of Error of the Breath Testing Device
[Headnotes 3, 4]
The district court accepted Rowland's rather novel position that a ten percent margin of
error inherent in the Verax BAC Verifier should be taken into account before the DMV
revokes an individual's driver's license. We reject this position for three reasons. First,
Rowland gives no legal authority to support his position. Generally, unsupported arguments
are summarily rejected on appeal. See Randall v. Salvation Army, 100 Nev. 466, 470-71, 686
P.2d 241, 244 (1984) (court may decline consideration of issues lacking citation to relevant
legal authority). Moreover, without citation to authority, there was no reason for the district
court to have considered this argument.
We nevertheless note that there is persuasive legal authority which is contrary to the
position adopted by the district court. In People v. Randolph, 262 Cal.Rptr. 378 (Cal.Super.
1989), appellant chose to submit to a breath test after his arrest. Both tests revealed a
blood-alcohol level of 0.10. The Ventura County Superior Court Appellate Department held
that there was sufficient evidence to sustain appellant's conviction for driving a vehicle while
having 0.10 percent or more alcohol in his blood. The Randolph court stated:
This case addresses the issue whether the Legislature limited evidence to prove a
violation of Vehicle Code section 23152, subdivision (b), solely to chemical tests with
results so far above 0.10 percent that the range of the margin of error cannot extend
below 0.10 percent. We conclude that neither the statute nor general principles of
law support such a limitation to the evidence.
neither the statute nor general principles of law support such a limitation to the
evidence.
Id. at 380.
Second, the relevant statute provides that a person's license shall be revoked if he or she
has 0.10 percent or more by weight of alcohol in his or her blood. NRS 484.385(1). Neither
statute nor administrative code provision mandate that a margin of error be considered before
a license is revoked. This implies that the legislature and the Committee on Testing for
Intoxication (CTI) either accept or are unconcerned about the extent of margins of error
inherent in the approved breath-testing machinery. Rowland was tested two times on the
Verax BAC Verifier, which is certified by CTI. NAC 484.600(12). He was found to have
0.11 percent by weight of alcohol in his blood both times. It was not error for the hearing
officer to rely on this evidence when he upheld Rowland's revocation.
[Headnote 5]
Third, there was substantial evidence to support the hearing officer's findings. Officer
Mahoney noticed that Rowland was speeding, that he paused at an intersection for an unusual
length of time after the light had turned green, that he smelled of alcohol, and had an unsteady
gait. Additionally, Rowland failed five field sobriety tests and admitted that he had drunk
beer at a bachelor party earlier in the evening. Finally, Rowland's blood alcohol level was
tested at 0.11 percent.
D. Production of Original Documents
[Headnotes 6, 7]
The district court also concluded that the DMV failed to produce original documents at the
administrative hearing, as required. NRS 233B.123(2) reads: 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.
This court has stated:
The DMV next contends that the authenticated copy of the crime lab report was
admissible pursuant to NRS 233B.123(2). NRS 233.123(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. . . . 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.
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.
State, Dep't of Mtr. Vehicles v. Clements, 106 Nev. 516, 519, 796 P.2d 588, 589-90 (1990)
(emphasis in original). There are good reasons to apply the Clements holding in the instant
case despite the fact that the original documents at issue here were maintained at DMV
headquarters in Carson City. Keeping the original documents in a central location protects
them from being lost, altered or damaged. Unless a subpoena duces tecum is issued, the
interest in protecting original documents from loss or destruction is sufficient reason to
declare them not readily available at an administrative hearing.
Moreover, if Rowland had any legitimate reason to doubt the authenticity of the certified
copies, he could have arranged to compare them with the originals in advance of the
revocation hearing. Rowland could have compared them with the originals at DMV
headquarters. Id. Second, he could have arranged for someone in Carson City to compare
them with the originals. Third, he could have summoned the originals by means of a
subpoena duces tecum. NRCP 45(b), (c). The record indicates that Rowland did none of the
above. He merely sent a letter to the DMV requesting to view the originals. There is no
indication that Rowland in fact made an effort to compare or subpoena the originals. Rowland
did not follow the procedures set forth by our holding in Clements when we interpreted NRS
233B.123(2). It was therefore error for the district court to base its decision to reinstate
Rowland's driving privileges on this point.
E. Proper Maintenance of the Breath-Testing Device
[Headnote 8]
Finally, the district court erroneously concluded that relief was warranted because there
was no evidence that the breath-testing device was properly maintained. Rowland, however,
did not meet his burden of establishing that the machine was improperly maintained at the
hearing. State v. Hall, 105 Nev. 7, 768 P.2d 349 (1989). This court has stated: Nevada has
enacted statutory regulations to protect a defendant from the admission of inaccurate
test results.
Nevada has enacted statutory regulations to protect a defendant from the admission of
inaccurate test results. Specifically, a defendant is entitled to receive full information
regarding the machine used to test his blood samples and is entitled to inspect the
machine. . . . If a defendant can establish that the machine was improperly maintained,
he can move to have the test results suppressed for that reason.
Id. at 10, 768 P.2d at 350 (emphasis added). Rowland offered no evidence at the hearing to
prove that the machine was not properly maintained; and he has made no showing that he
unsuccessfully tried to inspect or obtain information about the machine. The fact that a
breathalizer machine was used here in lieu of the machine used for testing blood samples
mentioned in Hall is of no moment. The same principle applies in either case.
For the foregoing reasons, we reverse the district court's order reinstating Rowland's
driving privileges and reinstate the decision of the hearing officer.
____________
107 Nev. 482, 482 (1991) Glauner v. State
DALE ALLEN GLAUNER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21628
June 28, 1991 813 P.2d 1001
Appeal from order of the district court denying appellant's petition for post-conviction
relief. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Defendant petitioned for post-conviction relief and moved to reconsider, both of which
were denied by the district court. Defendant appealed. The supreme court held that: (1) date
remittitur is filed on direct appeal is final decision for purposes of filing petition for
post-conviction relief; (2) defendant's petition for post-conviction relief was timely; and (3)
denial of defendant's motion to reconsider was error even if financial certificate was not
properly authorized.
Vacated and remanded.
Terri Steik Roeser, State Public Defender, and Janet S. Bessemer, Deputy Public Defender,
for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Noel Waters, District Attorney and
Eric S. Hoshizaki, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Supreme court retains jurisdiction over appeal until remittitur is filed; thus, decision in any appeal is not final until date remittitur
is filed.
2. Criminal Law.
Final decision, within meaning of statute which requires filing of petition for post-conviction relief within one year after final
decision, meant date of remittitur on defendant's direct appeal, rather than date order was entered; thus, defendant's petition for
post-conviction relief was timely when filed within one year of remittitur, even though order dismissing direct appeal was entered more
than one year before petition was filed. NRS 177.315, subd. 3.
3. Criminal Law.
Sua sponte dismissal of petition for post-conviction relief on grounds that petition was untimely when filed more than one year
after final decision on defendant's direct appeal was error where petition was timely when first submitted, even though financial
certificate did not appear to contain authorized signature, and alleged procedural default was only on order of couple of days; State
should have been required to raise any procedural defenses by way of answer or motion and defendant permitted to respond. NRS
177.315, subd. 3, 177.355, subds. 2, 3.
4. Criminal Law.
Time requirement for filing petition for post-conviction relief is not statute of limitations and, thus, defendant whose procedural
default, if any, was only on order of couple of days, should be given opportunity to show either that no default occurred or that there
was good cause. NRS 177.315, subd. 3.
Clerk of court has ministerial duty to file legal documents submitted so long as those documents appear to be in proper form; clerk
has no discretion to check substance of documents and decide which ones will be filed.
Even where court clerk receives documents which are not in proper form, clerk must stamp those documents with date on which
they were received.
7. Criminal Law.
Denial of defendant's motion to reconsider dismissal of his petition for post-conviction relief was error, even if financial certificate
was not properly authorized, because petition for post-conviction relief does not require financial certificate for motion to proceed in
forma pauperis and, thus, petition could not be refused even if petitioner failed to demonstrate indigency necessary for appointment of
counsel at public expense.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's petition for
post-conviction relief. On June 7, 1988, appellant was convicted, pursuant to a jury verdict, of
one count each of sexual assault, incest, statutory sexual seduction, and two counts of
lewdness with a child under the age of fourteen years.
Appellant was sentenced to a term of life plus twenty years in the Nevada State Prison. This
court dismissed appellant's direct appeal. Glauner v. State, Docket No. 19341 (Order
Dismissing Appeal, September 18, 1989). This court filed its remittitur on October 10, 1989.
On September 21, 1990, appellant filed in the district court a petition for post-conviction
relief. On October 4, 1990, the district court entered its order denying appellant's petition.
The district court noted that this court entered its order dismissing appellant's direct appeal
on September 18, 1989, and that appellant waited until September 21, 1990, before filing his
petition for post-conviction relief. Therefore, the district court concluded that appellant's
petition was filed more than one year after the final decision of appellant's direct appeal and
that the petition was untimely.
On October 17, 1990, appellant filed a notice of appeal as well as a motion to reconsider
the order denying his petition for post-conviction relief. In his motion to reconsider, appellant
demonstrated that the clerk of the district court declined on at least two occasions to file
appellant's petition for post-conviction relief because the space for the signature on
appellant's financial certificate (in connection with his request to proceed in forma pauperis)
did not appear to contain an authorized signature.
1
On November 9, 1990, the district court
denied appellant's motion for reconsideration. The district court stated that appellant was
required to file a properly filled out financial certificate, and that his failure to do so was good
cause for the refusal of the clerk to file appellant's petition. This appeal followed.
Appellant contends that the district court erred in dismissing his petition and in denying
his motion for reconsideration. We agree. Initially, we note that the district court denied
appellant's petition on the basis of NRS 177.315(3), which reads as follows:
Unless there is good cause shown for delay, a proceeding under NRS 177.315 to
177.385, inclusive, must be filed within 1 year after entry of judgment of conviction or,
if an appeal has been taken from such judgment, within 1 year after the final decision
upon or pursuant to the appeal.
[Headnotes 1, 2]
This court retains jurisdiction over an appeal until the remittitur is filed. Accordingly the
decision in any appeal is not final until the date the remittitur is filed.
__________

1
Apparently the district court clerk's office had exemplars of the signatures of those officials at the prison
who were authorized to sign financial certificates. It seems that the signature on appellant's form did not match
those exemplars.
until the date the remittitur is filed. In the instant case, the date of the remittitur, and hence the
date of the final decision on appellant's direct appeal, was October 10, 1989. Although the
term final decision is ambiguous, we conclude that the better policy is to interpret final
decision to refer to the date that the remittitur is issued by this court. Accordingly,
appellant's petition, filed on September 21, 1990, was timely.
[Headnotes 3, 4]
Further, even if appellant's petition had been untimely, a petitioner for post-conviction
relief may be able to show good cause for failure to file a timely petition. NRS 177.315(3).
Following a petition for post-conviction relief, a response by the state is mandatory. NRS
177.355(2). Because appellant's petition was timely when it was submitted, appellant had no
reason to suspect that he should discuss good cause for any procedural default.
2
Under the
facts of this case, the district court should have required the state to raise any procedural
defenses by way of the answer or motion mandated in NRS 177.355(2), and then permitted a
response by the petitioner as required by NRS 177.355(3).
3
The sua sponte dismissal by the
district court was error.
[Headnotes 5, 6]
The district court erred in denying appellant's motion to reconsider. The clerk of a court
has a ministerial duty to file legal documents submitted to the court so long as those
documents appear to be in the proper form; the clerk has no discretion to check the substance
of those documents (such as the authenticity of signatures) and decide which ones will be
filed. Bowman v. District Court, 102 Nev. 474, 728 P.2d 433 (1986). Even when the court
clerk receives documents which are not in the proper form, there is no excuse for failing to
stamp those documents with the date on which they are received. The clerk of the district
court committed a dereliction of duty in failing to file appellant's petition for post-conviction
relief. See Huebner v. State, 107 Nev. 328, 810 P.2d 1209 (1991).
__________

2
Even if we were to interpret final decision to refer to the date of the order dismissing appellant's direct
appeal rather than the date of the remittitur, appellant's first submission of his petition was timely.

3
We do not mean to imply that every sua sponte dismissal of a petition for post-conviction relief would be
an abuse of discretion. However, in the instant case the procedural default (if any) was only on the order of a
couple of days. The time requirement of NRS 177.315(3) is not a statute of limitations; appellant should have
been given an opportunity to show either that no default occurred or that there was good cause.
[Headnote 7]
Even if there was a problem with the financial certificate, appellant's motion to reconsider
could not have been denied properly on that basis because a petition for post-conviction relief
does not require a financial certificate or a motion to proceed in forma pauperis. Because
there are no filing fees for a petition for post-conviction there is no need for a petitioner for
post-conviction relief to obtain permission to proceed in forma pauperis. The district court
cannot appoint counsel for the petitioner at public expense unless the petitioner demonstrates
indigency, but this does not authorize the district court to refuse to file the petition itself.
Accordingly, we vacate the order of the district court dismissing appellant's petition for
post-conviction relief, and we remand this case to the district court for further proceedings
consistent with this opinion.
4

____________
107 Nev. 486, 486 (1991) Fitzpatrick v. State, Dep't of Commerce
PATRICK M. FITZPATRICK, Appellant, v. THE STATE OF NEVADA, ex rel.,
DEPARTMENT OF COMMERCE, INSURANCE DIVISION, Respondent.
No. 21356
July 2, 1991 813 P.2d 1004
Appeal from an order of the district court dismissing a petition for judicial review. First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
Terminated state employee petitioned for judicial review. The district court dismissed the
petition, and employee appealed. The supreme court held that district court erred when it
concluded it was without jurisdiction to consider merits of claim that appellant had good
cause for filing tardy memorandum of points and authority in support of timely filed petition
for judicial review.
Jeffrey Friedman, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General and Melanie Foster, Deputy Attorney General,
__________

4
We express no opinion on the merits of appellant's petition.
Administrative Law and Procedure.
Time allotted by statute for taking an administrative appeal is jurisdictional, and to invoke appellate jurisdiction of district court,
petition for judicial review must be timely filed; however, if petition is timely filed, statute allows district court to accept tardy
memorandum of points and authorities in support of the petition. NRS 233B.130, subd. 2(c), 233B.133.
OPINION
Per Curiam:
The appellant, Patrick Fitzpatrick, began working for respondent State of Nevada
Department of Commerce, Insurance Division (Insurance Division) on May 10, 1985.
1
He
received above-standard and standard work performance evaluations from the Insurance
Division in 1985, 1986 and the first half of 1987. However, on November 10, 1987, the
Insurance Division charged Fitzpatrick with inexcusable neglect of duty and discourteous
treatment of the public, and suspended him for three days without pay.
2
See NAC
284.650(7); NAC 284.650(4).
Approximately one year later, on November 8, 1988, the Insurance Division charged
Fitzpatrick with insubordinate and disobedient behavior arising from an unauthorized,
unreported two hour and twenty minute absence from work. See NAC 284.650(6); NAC
284.650(15). For this violation, Fitzpatrick's unauthorized leave time was deducted from his
paycheck and he was suspended for four hours without pay. Fitzpatrick appealed this
suspension to an administrative hearing officer.
Finally, on January 6, 1989, the Insurance Division charged Fitzpatrick with: (1)
disgraceful personal conduct that impaired job performance or caused discredit to the
Insurance Division; (2) discourteous treatment of the public or fellow employees while on
duty; (3) incompetence or inefficiency; (4) inexcusable neglect of duty; and (5) unauthorized
absence from duty or abuse of leave privileges. The discipline Fitzpatrick received for these
infractions was termination. See NAC 284.650(2); NAC 284.650(4); NAC 284.650(5); NAC
284.650(7); NAC 284.650(15). A second appeal was taken to an administrative hearing
officer who consolidated both of Fitzpatrick's pending appeals in one action. A three day
administrative hearing was held in November, 19S9 and on February 9, 1990, the
administrative hearing officer affirmed the Insurance Division's decision to terminate
Fitzpatrick.
__________

1
Prior to this time, Fitzpatrick had worked for various state agencies since 1972.

2
Specifically, Fitzpatrick allegedly failed to promptly and appropriately respond to a private party's request
for an advisory opinion.
held in November, 1989 and on February 9, 1990, the administrative hearing officer affirmed
the Insurance Division's decision to terminate Fitzpatrick.
A petition for judicial review was timely filed with the district court pursuant to the
requisites of NRS 233B.130(2)(c).
3
Thereafter, the Insurance Division filed a motion to
dismiss the petition based upon Fitzpatrick's undisputed failure to timely file a memorandum
of points and authorities in support of the petition. Fitzpatrick responded to the motion to
dismiss with an assertion that he had good cause for filing his memorandum of points and
authorities beyond the filing deadline. The matter was submitted to the district court judge
who concluded that Fitzpatrick's failure to timely file the memorandum of points and
authorities deprived the district court of jurisdiction to consider the timely filed petition for
judicial review. We disagree with the district court's reasoning and, accordingly, we reverse.
In Crane v. Continental Telephone, 105 Nev. 399, 775 P.2d 705 (1989) we held that
[c]ourts have no inherent appellate jurisdiction over official acts of administrative agencies
except where the legislature has made some statutory provision for judicial review. Id. at
401, 775 P.2d at 706. Therefore, the time allotted by statute for taking an administrative
appeal is jurisdictional, and to invoke the appellate jurisdiction of the district court, a petition
for judicial review must be timely filed. Id. However, if the petition for judicial review is
timely filed, NRS 233B.133 allows the district court to accept a tardy memorandum of points
and authorities in support of the petition.
4
Accordingly, the district court erred when it
concluded it was without jurisdiction to consider the merits of Fitzpatrick's claim that he
had good cause for filing a tardy memorandum of points and authorities in support of the
timely filed petition for judicial review.
__________

3
NRS 233B.130(2)(c) provides:
2. Petitions for judicial review must:
. . . .
(c) Be filed within 30 days after service of the final decision of the agency. Cross-petitions for judicial
review must be filed within 10 days after service of a petition for judicial review.

4
NRS 233B.133 provides in relevant part:
233B.133 Memoranda of points and authorities: Time for filing memorandum and reply; request for
hearing; required form.
1. A petitioner or cross-petitioner who is seeking judicial review must serve and file a memorandum of
points and authorities within 40 days after the agency gives written notice to the parties that the record of the
proceeding under review has been filed with the court.
. . . .
6. The court, for good cause, may extend the times allowed in its section for filing memoranda.
(Emphasis added.) In deference to the district court's ruling, we note that counsel for both parties failed to
direct the district court's attention to the referenced paragraph (6) which is obviously dispositive concerning the
jurisdiction issue.
the district court erred when it concluded it was without jurisdiction to consider the merits of
Fitzpatrick's claim that he had good cause for filing a tardy memorandum of points and
authorities in support of the timely filed petition for judicial review. We reverse and remand
this matter back to the district court for further consideration.
Mowbray, C. J., Springer, Steffen and Young, JJ., and Lane, D. J.,
5
concur.
____________
107 Nev. 489, 489 (1991) Clark Co. v. State, Equal Rights Comm'n
CLARK COUNTY, a Political Subdivision of the State of Nevada, Appellant, v. THE
STATE OF NEVADA, EQUAL RIGHTS COMMISSION, Respondent.
No. 21586
July 3, 1991 813 P.2d 1006
This is an appeal from the district court's decision denying a preliminary injunction to
restrain the Nevada Equal Rights Commission from issuing or enforcing any subpoena prior
to exhaustion of informal mechanisms for dispute resolution required by statute. Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
Appeal was taken from order of the district court which denied preliminary injunction to
restrain Equal Rights Commission from issuing or enforcing subpoena. The supreme court
held that the Equal Rights Commission has subpoena power only for public hearings.
Rex Bell, District Attorney, Paul D. Johnson, Deputy District Attorney, Clark County, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City, Keith D. Marcher, Deputy
Attorney General, Las Vegas, for Respondent.
1. Administrative Law and Procedure; Civil Rights.
Nevada Equal Rights Commission has subpoena power only for public hearings. NRS 233.170.
__________

5
The Honorable Mills Lane, Judge of the Second Judicial District Court, was designated by the Governor to
sit in place of The Honorable Robert E. Rose, Justice. Nev. Const. art. VI, 4.
2. Statutes.
When statute is repealed, it is ordinarily presumed that the legislature intended a substantial change in the law.
Administrative agencies have only those powers which the legislature expressly or implicitly delegates.
4. Administrative Law and Procedure: Civil Rights.
Once the Nevada Equal Rights Commission determines that public hearing is necessary and notices the matter for hearing, it may
issue subpoenas compelling production of any documents at a specific date a reasonable time prior to the public hearing. NRS
233.170.
OPINION
Per Curiam:
The Nevada Equal Rights Commission (NERC) received a complaint alleging that Clark
County (the County) discriminated against an employee by failing to hire her for the position
of Executive Assistant due to her age. In accordance with NRS 233.170(1), NERC held an
informal meeting on February 15, 1990, in an attempt to mediate the dispute. This meeting
proved unsuccessful, and an investigation was initiated, as mandated by NRS 233.170(2). To
determine whether probable cause of age discrimination existed, NERC made requests to the
Clark County General Services Department (General Services) for production of an eligibility
list and selection procedures used in the hiring of the Executive Assistant position. However,
NERC's request for these documents was denied. On May 15, 1990, NERC issued a subpoena
compelling the Clark County Personnel Systems Manager to testify before NERC's executive
director on June 7, 1990, and ordering General Services to produce documents at that time.
On June 5, 1990, the County filed a complaint seeking declaratory and injunctive relief to
the effect that NERC's subpoena power cannot be invoked prior to exhaustion of the informal
dispute resolution procedures of NRS 233.170(1) and (2).
1
The district court denied the
County's motion and found that NERC has power to issue subpoenas for private hearings
held during the investigative stage of a case.
__________

1
NRS 233.170 set forth an order by which NERC is to conduct its investigations. It provides in pertinent
part:
1. When a complaint is filed whose allegations if true would support a finding of unlawful practice,
the commission shall hold an informal meeting to attempt a settlement of the dispute. To prepare for the
informal meeting, the executive director may request from each party an information which is reasonably
relevant to the complaint. No further action may be taken if the parties agree to a settlement.
2. If an agreement is not reached, the executive director of the commission shall conduct an
investigation into the alleged unlawful practice. After the investigation, if the executive director
determines that an unlawful practice has occurred, he shall attempt to mediate
district court denied the County's motion and found that NERC has power to issue subpoenas
for private hearings held during the investigative stage of a case.
[Headnote 1]
The County contends that NERC's power to issue and enforce subpoenas is limited to use
in connection with authorized public hearings and that it may not require parties to produce
any information prior to a public hearing. After review of the legislative intent and statutory
amendments, we conclude that NERC has subpoena power for public hearings only.
[Headnote 2]
Prior to 1977, NRS 233.070 authorized NERC to conduct private or public hearings with
regard to its investigations. However, that statute was repealed in 1977 and the phrase public
or private hearings was deleted. The new law set up a process for the receipt of a complaint,
an informal meeting, or investigation and mediation if the matter was not resolved, and
ultimately a public hearing. Nowhere was reference made to a private hearing. This
amendment to NRS 233.070 was made with NRS 233.150 in effect and it provided that the
subpoena power granted to NERC exists only for evidence relevant to any hearings
conducted by the Commission. Therefore, the legislature granted NERC the power to
subpoena documents only when relevant to a hearing, and eliminated NERC's right to hold
private hearings. When a statute is repealed, it is ordinarily presumed that the legislature
intended a substantial change in the law. McKay v. Bd. of Supervisors, 102 Nev. 644, 730
P.2d 438 (1986). The rules of statutory construction demonstrate that the legislature intended
to prohibit NERC from issuing subpoenas during its investigative stage or for any private
hearing.
[Headnote 3]
Our conclusion is confirmed by legislative actions since 1977. In 1983, the Committee on
Government Affairs attempted to have the legislature amend NRS 233.150 to specifically
grant NERC subpoena power in connection with its investigations, as well as its hearings. See
62nd Session, Assembly Bill No. 93 (Jan. 26, 19S3).
__________
between or reconcile the parties. The party against whom a complaint was filed may agree to cease the
unlawful practice. If an agreement is reached, no further action may be taken by the complainant or by
the commission.
3. If the attempts at mediation or conciliation fail, the commission may hold a public hearing on the
matter.
(Emphasis added).
1983). However, that bill was rejected. Administrative agencies have only those powers
which the legislature expressly or implicitly delegates. Andrews v. Nevada State Board of
Cosmetology, 86 Nev. 207, 467 P.2d 96 (1970). Because NRS 233.070 has been repealed,
and the new statutory scheme does not mention private hearings, we conclude that the
legislature intended the words any hearings to mean public hearings.
We hereby reverse the district court's decision and, on remand, we instruct the district
court to permanently enjoin NERC from issuing subpoenas during the investigative stage of
this case. See Boyes v. Valley Bank, 101 Nev. 287, 701 P.2d 1008 (1985) (where only legal
issues are in dispute, the court may instruct the district court to enter a permanent injunction
on remand); NRS 33.010(1).
2
Once NERC determines that a public hearing is necessary and
notices the matter for hearing, it may issue subpoenas compelling production of any
documents at a specific date, a reasonable time prior to the public hearing. See Brooks v.
Pool-Leffler, 636 S.W.2d 113 (Mo.App. 1982). This will permit NERC to secure the
necessary documents for review before the public hearing. Prior to the notice of public
hearing, subpoena power is not available to NERC.
Accordingly, the case is reversed with instructions to the district court to issue the
permanent injunction referred to in this opinion.
Mowbray, C. J., Rose, Steffen and Young, JJ., and Breen, D. J.,
3
concur.
__________

2
NRS 33.010 provides, in pertinent part, that an injunction may be granted:
1. When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such
relief or any part thereof consists in restraining the commission or continuance of the act complained of,
either for a limited period or perpetually.

3
The Honorable Bob Miller, Governor, designated The Honorable Peter I. Breen, District Judge of the
Second Judicial District, to sit in this case in place of The Honorable Charles E. Springer, Justice. Nev. Const.
art. VI, 4.
____________
107 Nev. 493, 493 (1991) Washoe Medical Center v. Lyon County
WASHOE MEDICAL CENTER, INC., a Non-Profit Nevada Corporation, Appellant, v.
LYON COUNTY, a Political Subdivision of the State of Nevada, Respondent.
No. 21669
July 3, 1991 813 P.2d 1008
Appeal from an order granting respondent's motion for summary judgment. Third Judicial
District Court, Lyon County; Mario G. Recanzone, Judge.
Hospital which provided medical care to patient believed to be indigent filed action
against resident county seeking reimbursement for medical services provided. The district
court granted summary judgment for county, and hospital appealed. The supreme court held
that: (1) actual notice would fulfill purposes of requirement that hospital give board of
commissioners of resident county written notice of patient's presence in hospital, and (2)
material issues of fact existed, precluding summary judgment as to whether board of county
commissioners had actual notice of medical services provided by hospital.
Keith S. K. Ching, Robert E. Nelson-Kortland, Terrance Shea, Reno, for Appellant.
Keith Loomis, District Attorney, and Robert E. Estes, Deputy District Attorney, Lyon
1. Hospitals.
Purpose of statutory requirement that board of county commissioners of resident county be notified of outside hospital's provision
of medical services to indigent county resident was to enable commissioners to remove a patient to local hospital so that hospitalized
person was closer to family and friends and so that local facilities were utilized. NRS 450.400
2. Hospitals.
County board of commissioners' actual notice of outside hospital's provision of medical services to indigent county resident
fulfilled purposes of statutory requirement that board be given notice of medical services provided to indigent patient in order to enable
commissioners to remove patient to local hospital so that hospitalized person was closer to her family and friends and so that local
facilities were utilized. NRS 450.400.
3. Judgment.
Material issues of fact existed, precluding summary judgment as to whether board of county commissioners had actual notice of
medical services provided by hospital seeking reimbursement for services rendered to indigent county resident.
OPINION
Per Curiam:
Appellant Washoe Medical Center (WMC) provided medical care to a resident of
respondent Lyon County. Believing the resident was an indigent, WMC notified the Lyon
County Clerk of its medical services and requested payment for those services pursuant to
statute. After the County refused to provide reimbursement, appellant filed its initial
complaint in Washoe County on July 14, 1987, praying for $13,254.87, interest, and
attorney's fees. Respondent moved for summary judgment after successfully contesting the
venue.
1
The district court granted summary judgment to respondent, concluding that the
notice provided was not to the board of county commissioners and was therefore statutorily
defective. On appeal, appellant contends that summary judgment was improper because
genuine issues of material fact remain. We agree.
[Headnotes 1, 2]
The determinative issue on appeal is whether the Lyon County Board of Commissioners
had actual notice of the medical services provided by WMC. Although NRS 450.400
2
states
that notice shall be in writing . . . addressed to the board of county commissioners, we
conclude that actual notice would satisfy the requirements of NRS 450.400. The purpose of
the notice requirement is to enable the commissioners of the resident county to remove a
patient to the local hospital so that the hospitalized person is closer to her family and friends,
and so that local facilities are utilized. See Att'y Gen. Op. No. 36, at 87 (1971). Actual notice
fulfills all of the purposes of the notice requirement. See also Washoe Co. v. Eureka Co., 25
Nev. 356, 60 P. 376 (1900).
__________

1
After the district court denied respondent's motion for change of venue, we reversed and remanded the case
with directions to vacate the order denying change of venue and to issue an order changing venue to Lyon
County. Lyon County v. Washoe Medical Center, 104 Nev. 765, 766 P.2d 902 (1988).

2
NRS 450.400 reads in pertinent part:
1. When the privileges and use of the hospital are extended to a resident of another county who is
entitled under the laws of this state to relief, support, care, nursing, medicine, medical or surgical aid
from the other county, or to one who is injured, maimed or falls sick in the other county, the governing
head shall immediately notify the board of county commissioners of that county.
2. The notice must be in writing and addressed to the board of county commissioners of that county.
(Emphasis added.)
[Headnote 3]
No discovery was conducted in this case prior to summary judgment. Accordingly, the
possibility remains that the board of county commissioners had actual notice of the medical
services provided by WMC. Because of this possibility, a genuine issue of material fact
persists and we cannot affirm the award of summary judgment to Lyon County. Butler v.
Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985) (summary judgment is only
appropriate when, after a review of the record, in a light most favorable to the nonmoving
party, there remain no issues of material fact).
3
Accordingly, we reverse the district court's
award of summary judgment and remand for proceedings consistent with this opinion.
Mowbray, C. J., Rose, Steffen and Young, JJ., and Breen, D. J.,
4
concur.
____________
107 Nev. 495, 495 (1991) Minnear v. Minnear
RICHARD MINNEAR, Appellant, v. BEVERLY MINNEAR, Respondent.
No. 21273
July 12, 1991 814 P.2d 85
Appeal from an order of the district court modifying a divorce decree. Eighth Judicial
District Court, Clark County; Stephen L. Huffaker, Judge.
Former wife filed motion to modify divorce decree, seeking extension of former husband's
support obligation for his eldest daughter beyond statutory age of majority and seeking
increase in amount of support for both daughters. The district court accepted referee's
recommendation and found that daughter apparently was handicapped and in need of
support from her father and the husband was willfully underemployed, and thus support
obligation should be increased.
__________

3
We reject appellant's remaining contention that an alternative claim under NRS Chapter 428 precluded
summary judgment. The procedure for such a claim is set out in NRS 439B.330. NRS 439B.330(3) requires a
hospital which treats an indigent inpatient to submit a discharge form identifying the patient as a possible
indigent to the board of county commissioners of the county of residence. NRS 450.400(1) and (2) require a
hospital which extends medical services to a resident of another county to immediately notify in writing the
board of county commissioners of that county. We are not persuaded that the procedure in NRS 439B.330(3)
serves to rescind the more precise requirement in NRS 450.400.

4
The Honorable Peter I. Breen, Judge of the Second Judicial District Court, was designated by the Governor
to sit in place of The Honorable Charles E. Springer, Justice. Nev. Const. art. VI, 4.
was handicapped and in need of support from her father and that husband was willfully
underemployed, and thus support obligation should be increased. Husband appealed. The
supreme court held that: (1) trial court did not abuse its discretion in ordering extended
support for daughter, and (2) where evidence of willful underemployment preponderates,
presumption will arise that such underemployment is for purpose of avoiding support.
Affirmed.
Leslie Mark Stovall, Las Vegas, for Appellant.
William R. Phillips and Frances-Anne Fine, Las Vegas, for Respondent.
1. Divorce.
Revisions to provisions within divorce decrees pertaining to child support are reviewable by supreme court only for abuse of
discretion. NRS 125.210, subd. 3.
2. Divorce.
Trial court did not abuse its discretion in ordering extended support for eldest daughter; referee was presented with conflicting
evidence and he used his discretion in recommending extended support based on testimony that daughter was handicapped and unable
to support herself. NRS 125.210, subd. 3, 125B.080, subd. 8, 125B.110, subd. 1.
Where evidence of willful underemployment of supporting parent preponderates, presumption will arise that such
underemployment is for purpose of avoiding support; once presumption arises, burden of proving willful underemployment for reasons
other than avoidance of support obligation will shift to supporting parent. NRS 125B.080, subd. 8.
OPINION
Per Curiam:
[Headnote 1]
The parties to this appeal were divorced in 1981. They have two daughters. Respondent
filed a motion to modify the divorce decree, seeking an extension of appellant's support
obligation for his eldest daughter beyond the statutory age of majority. Respondent also
sought an increase in the amount of support for both daughters. NRS 125.210(3) gives the
trial court discretionary authority to change, modify or revoke provisions within divorce
decrees pertaining to child support. Such revisions are reviewable by this court only for abuse
of discretion. Edwards v. Edwards, 82 Nev. 392, 393, 419 P.2d 637, 638 (1966).
An evidentiary hearing was held before a domestic relations referee. Respondent presented
medical testimony that her eldest daughter, Jennifer, was handicapped and unable to support
herself. Appellant, a board certified physician, disputed the severity of his daughter's illness.
He also filed an Affidavit of Financial Condition stating that his monthly income did not
exceed $1,200 per month. Appellant and his current wife own numerous rental properties as
community property. Appellant indicated that his monthly rental income from the properties
was $6,045; however, after deducting mortgage payments and operating expenses, he claimed
a net income of only $18.31 per month on the properties.
The referee found that Jennifer currently was handicapped and in need of support from her
father. This order was made pursuant to NRS 125B.110(1).
1
The referee also found that
appellant was willfully underemployed and, pursuant to NRS 125B.080(8), recommended
that his support obligation be increased to $500 per month per child.
2
The district court
accepted the referee's recommendation in its entirety.
[Headnote 2]
Appellant argues that the court below abused its discretion in ordering extended support
for Jennifer because there was no evidence to support this decision. He claims that Jennifer's
condition is in remission and that she is no longer handicapped as required by the statute.
Respondent relies on the testimony of Jennifer and her doctors concerning her continuing
health problems. We believe the referee was presented with conflicting evidence and used his
discretion in recommending extended support. Appellant fails to point to any particularized
abuse of discretion by the district court in its adoption of the referee's report. The record does
not reflect any abuse of discretion. Accordingly, the decision extending appellant's support
obligation is affirmed.
[Headnote 3]
Appellant also challenges the ruling that he was willfully underemployed and the court's
corresponding order that his support obligation be increased to $500 per month for each
of his daughters.
__________

1
NRS 125B.110(1) states:
A parent shall support beyond the age of majority his child who is physically or mentally handicapped
until the child is no longer handicapped or until the child becomes self-supporting. The handicap of the
child must have occurred before the age of majority for this duty to apply.

2
NRS 125B.080(8) states:
If a parent who has an obligation for support is willfully underemployed or unemployed, for the
purpose of avoiding an obligation for support of a child, that obligation must be based upon the parent's
true potential earning capacity.
underemployed and the court's corresponding order that his support obligation be increased to
$500 per month for each of his daughters. The referee's decision to increase support was
premised on a finding that appellant was willfully underemployed. Under NRS 125B.080(8),
this constitutes a valid reason for increasing a parent's support payments. While we believe
that deliberate avoidance may be inferred from the record in this case, we are mindful that
NRS 125B.080(8) requires an additional finding that a parent's willful underemployment be
for the purpose of avoiding an obligation for support of a child. . . . We now hold that,
henceforth, where evidence of willful underemployment preponderates, a presumption will
arise that such underemployment is for the purpose of avoiding support. Once this
presumption arises, the burden of proving willful underemployment for reasons other than
avoidance of a support obligation will shift to the supporting parent. See People v. Sorensen,
437, P.2d 495, 500 (Cal. 1968).
Accordingly, we hereby affirm the district court's order.
Mowbray, C. J., Steffen and Young, JJ., and Christensen, D. J.,
3
concur.
I agree with the majority's conclusion that NRS 125B.080(8) requires not only a finding of
willful underemployment, and requires the further finding that such underemployment was
for the purpose of avoiding an obligation for support. In addition, I agree that once a finding
of willful underemployment is made, the burden is properly placed on the underemployed
party to show the reason for his or her underemployment. Nevertheless, I dissent. No finding
was ever made as to the reasons for Dr. Minnear's underemployment, and in my view it is not
the province of this court to make such findings simply on the basis of the cold record. I
would remand this case, so that the district court could inquire into the reasons for Dr.
Minnear's underemployment.
__________

3
The Honorable Carl J. Christensen, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Robert E. Rose, Justice. Nev. Const. art. VI, 4.
____________
107 Nev. 499, 499 (1991) Kirksey v. State
JIMMY TODD KIRKSEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20852
July 12, 1991 814 P.2d 1008
Appeal from judgment of conviction of one count of murder in the first degree and
sentence of death. Eighth Judicial District Court, Clark County; Jack Lehman, Brent T.
Adams and David R. Gamble, Judges.
Defendant was convicted in the district court of first degree murder and he was sentenced
to death. Defendant appealed. The supreme court held that: (1) sentencing judges in death
penalty hearing improperly found aggravating circumstances of which State gave no notice to
defendant, and (2) properly found aggravating circumstance of previous conviction of felony
involving violence was sufficient to justify death penalty.
Affirmed.
Morgan D. Harris, Public Defender and Robert Miller, Deputy Public Defender, Clark
William P. Henry, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
When defendant desires to waive appellate review of conviction that resulted in sentence of death, waiver is addressed to district
court in first instance. NRS 177.055, 177.055, subds. 1, 2; NRAP 42(a).
2. Criminal Law.
Before district court accepts waiver of appellate review of conviction that resulted in sentence of death, it must conduct evidentiary
hearing at which defendant is present and represented by counsel and must determine whether defendant is competent to waive appeal.
NRS 177.055, 177.055, subds. 1, 2; NRAP 42(a).
3. Criminal Law.
Following evidentiary hearing on waiver of right to appellate review of conviction that resulted in sentence of death, district court
must enter in record formal, written findings regarding defendant's competence to waive appeal. NRS 177.055, 177.055, subds. 1, 2;
NRAP 42(a).
4. Criminal Law.
Sentencing judges in death penalty hearing improperly found aggravating circumstances of which State gave no notice to
defendant. NRS 175.552.
5. Homicide.
Aggravating circumstance that defendant had previously been convicted of felony involving violence was sufficient to justify
death sentence for first degree murder. NRS 200.033, subd. 2.
6. Homicide.
Error of three judge panel in finding additional aggravating circumstances of which defendant was not given notice by State was
harmless beyond reasonable doubt in capital murder prosecution, where properly found aggravating circumstance was sufficient to
justify death sentence. NRS 175.552, 200.033, subds. 2, 4, 8.
7. Homicide.
Evidence at death penalty hearing established aggravating circumstance that murder defendant had been convicted of felony
involving violence, even though there was no certified copy of judgment of conviction; defendant admitted in statement to judges that
he committed the robbery, and probation officer's report and document annexed to it left no doubt that defendant was actually
convicted of the robbery. NRS 200.033, subd. 2.
OPINION
Per Curiam:
I. FACTS
In the late evening of May 3, 1988, and early morning of May 4, 1988, appellant Jimmy
Todd Kirksey and Jerry Wayne Jordan met Eva Marie Kearns. Kearns had recently been
beaten by her boyfriend, Michael Foxx. Kirksey told Kearns and Jordan that he wanted to talk
to Foxx and teach him a lesson.
The three went to Foxx's motel room and knocked on the door. When Foxx opened the
door, Kirksey forced his way in an began beating Foxx. Kirksey immediately knocked Foxx
onto the bed and then sat on Foxx's chest and hit him about the face and head. Kirksey then
dragged Foxx onto the floor and continued to kick and beat Foxx about the face and head.
The beating ruptured an aneurism in Foxx's brain, killing him. Kirksey later told a police
officer that he intended to kill Foxx.
On October 2, 1989, without the benefit of any plea negotiations, Kirksey pleaded guilty to
one count of murder in the first degree. Kirksey entered his plea despite being informed on
the record that the state would seek the death penalty and that his plea could result in a
sentence of death.
On October 3, 1989, the state filed its notice of intent to seek the death penalty. That
notice listed one aggravating circumstance, that Kirksey had previously been convicted of
another murder or felony involving the use or threat of violence to the person of another.
At the penalty hearing, Kirksey's counsel informed the court that Kirksey had instructed
him not to challenge any of the aggravating circumstances presented by the state, not to
present any mitigating circumstances, and not to make any opening or closing statements.
Kirksey also requested that he be allowed to make a statement to the court when the state
finished presenting its case.
make a statement to the court when the state finished presenting its case.
The state then presented evidence of the beating that resulted in Foxx's death. The state
also presented evidence that Kirksey robbed and attempted to kill a pizza delivery man in
California, and that Kirksey robbed and beat an elderly couple in California. Further evidence
was presented regarding Kirksey's involvement in the shotgun murder of a bar owner in
California, and of Kirksey's involvement in the beating and stabbing death of his estranged
girlfriend in California. The state then presented evidence that Kirksey had threatened to kill
again if he was not executed. Finally, the state presented a letter written by Kirksey to the
court in which he stated that if he had the power to bring all of his victims to life, he would
do it so he could murder them again.
Throughout the penalty hearing, Kirksey instructed his counsel not to object to any of the
evidence presented by the state. The court also canvassed Kirksey extensively regarding his
decision not to challenge the aggravating circumstances and not to present any mitigating
evidence. At the close of the state's case, Kirksey made the following statement to the court:
THE DEFENDANT: Right now? Well, everything that's happened here today, okay,
the letter, everything, everything I did, okay?
I wrote the letter to you, right? Saying what I did. I did that, Okay? When the detectives
came in here, they said what happened in California. All that happened. All right?
Okay?
All of it.
You know, I'm guilty of all that. I don't feel no kind of remorse about it. Ain't nothing
in my heart but hate, you know, that's it.
I might feel a little bit bad about the girl, but nobody else. You dig? That's it.
The three judge panel determined that three aggravating circumstances existed and that no
mitigating evidence was produced at the penalty hearing. Therefore, the panel returned a
sentence of death.
On January 12, 1990, the district court entered the formal judgment of conviction, and this
appeal followed. On February 1, 1990, Kirksey, through his counsel, filed in the district court
a motion to withdraw his notice of appeal. The motion was later supplemented with a note
written by Kirksey to his counsel, which stated:
I dont [sic] want no appeal. I said that befor [sic]. I Have not change [sic] my mind so
do what you want I dont [sic] want to spend the rest of my life in here so come with it
cause this is no life for nobody you got that
to spend the rest of my life in here so come with it cause this is no life for nobody you
got that
The district court subsequently granted Kirksey's motion. On March 23, 1990, however,
this court entered an order noting that it must review a sentence of death regardless of
whether the defendant affirmatively waives his right to appeal. See NRS 177.055(2); Cole v.
State, 101 Nev. 585, 707 P.2d 545 (1985). Therefore, this court directed the district court to
appoint independent counsel to appear on behalf of Kirksey and to brief all issues, including
whether Kirksey made a valid waiver of his right to appellate review.
II. WAIVER OF APPEAL
[Headnotes 1-3]
NRS 177.055 mandates review by this court of all death sentences.
1
When, pursuant to
NRAP 42(a), a condemned defendant desires to waive appellate review of a conviction that
resulted in a sentence of death, the waiver is addressed to the district court in the first
instance. Before the district court accepts the waiver, it must conduct an evidentiary hearing
at which defendant is present and represented by counsel, and determine whether the
defendant is competent to waive the appeal. Following the evidentiary hearing, the district
court must enter in the record formal, written findings regarding the defendant's competence
to waive the appeal. This court can then review those findings when it reviews the record to
determine the validity of the death sentence.
2

At oral argument, Kirksey's counsel stated that Kirksey had a change of heart and now
wishes to pursue this appeal. Under the peculiar circumstances of this case, and irrespective
of whether Kirksey validly waived his right to appeal his conviction, we elect to consider the
merits of Kirksey's challenges to his judgment of conviction.
__________

1
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:
(a) Any errors enumerated by way of appeal;
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any
arbitrary factor; and
(d) Whether the sentence of death is excessive, considering both the crime and the defendant.

2
The procedures set forth above also apply to cases in which a condemned defendant attempts to waive an
automatic appeal taken pursuant to NRS 177.055(1).
III. AGGRAVATING CIRCUMSTANCES
[Headnote 4]
Kirksey correctly asserts that he must be given notice prior to the penalty hearing of each
aggravating circumstance that the state will seek to prove at the penalty hearing. See NRS
175.552. He also notes correctly that in this case, the state provided him with notice of only
one aggravating circumstance, that the murder was committed by a person who was
previously convicted of another murder or of a felony involving the use or threat of violence
to the person of another.
At the conclusion of the penalty hearing, the three judge panel determined that three
aggravating circumstances justified imposing the death sentence. Specifically, the panel
determined that when he murdered Foxx, Kirksey had been previously convicted of a felony
involving the use of violence to the person of another. See NRS 200.033(2). The panel also
determined that the murder was committed during the commission of a burglary, that Kirksey
killed the victim and that Kirksey knew that life would be taken or lethal force used. See NRS
200.033(4). Finally, the panel determined that the murder involved depravity of mind. See
NRS 200.033(8).
Kirksey argues that his sentence must be reversed because he did not have notice of the
latter two aggravating circumstances that were found by the three judge panel. We are
unaware of any authority permitting a sentencing panel in a capital case to find aggravating
circumstances in addition to those argued by the state. Therefore, we decline to consider the
additional aggravating circumstances in resolving this appeal. Nevertheless, we conclude that
Kirksey's argument is without merit.
[Headnotes 5, 6]
Initially, we note that the finding of the additional aggravating circumstances by the three
judge panel was not the result of any action taken by the state before or during the penalty
hearing. We also note that in its decision, the three judge panel determined that any one of the
three aggravating circumstances was sufficient to outweigh the mitigating circumstances and
justify the sentence of death. See NRS 200.030(4)(a) (sentence of death may be imposed if
the jury finds one or more aggravating circumstances that are sufficient to outweigh the
mitigating circumstances). We conclude that the aggravating circumstance listed in the notice
of intent to seek the death penalty and argued by the state was sufficient in itself to justify the
sentence of death. Accordingly, the error of the three judge panel in finding additional
aggravating circumstances was harmless beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18 (1967).
IV. SUFFICIENCY OF EVIDENCE
[Headnote 7]
As noted above, the state sought to prove only one aggravating circumstance, that Foxx's
murder was committed by a person who had previously been convicted of a felony involving
violence or the threat of violence. See NRS 200.033(2). Specifically, the state sought to prove
at the penalty hearing that Kirksey was previously convicted of robbing an elderly couple in
Riverside, California. As proof of this conviction, the state introduced into evidence a copy of
a Probation Officer's Report detailing Kirksey's involvement in that crime. Attached to that
report is a Fixed Term Worksheet, that was apparently used by a probation officer to
determine a recommended sentence for Kirksey in the robbery case. The final page of that
exhibit is a computer printout that appears to contain Kirksey's criminal history. Contrary to
respondent's representations at oral argument, the exhibit does not contain a certified copy of
a judgment of conviction.
The lack of a certified copy of a judgment of conviction is troubling. We note, however,
that Kirksey admitted in his statement to the three judge panel that he committed the robbery.
Further, the Probation Officer's Report and the documents annexed to it leave no doubt that
Kirksey was actually convicted of the robbery. Under these circumstances, we conclude that
sufficient evidence supports the determination of the three judge panel that Kirksey was
previously convicted of a felony involving violence to the person of another. Finally, we
conclude that the three judge panel did not impose the death penalty under the influence of
passion, prejudice or any arbitrary factor and that the sentence of death was not excessive,
considering both the crime and the defendant. Accordingly, we affirm Kirksey's conviction
and sentence.
____________
107 Nev. 504, 504 (1991) Keener v. C.S.A.A.
JOHN P. KEENER, Appellant, v. CALIFORNIA STATE AUTOMOBILE ASSOCIATION
INTER-INSURANCE BUREAU, Respondent.
No. 21178
July 12, 1991 814 P.2d 87
Appeal from an order granting summary judgment. Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Insured appealed from order of the district court which entered summary judgment in
favor of insurer in action to recover uninsured motorist benefits.
107 Nev. 504, 505 (1991) Keener v. C.S.A.A.
summary judgment in favor of insurer in action to recover uninsured motorist benefits. The
supreme court held that policy was ambiguous with respect to exclusion for off-road vehicles
and exclusion would be interpreted in favor of the insured to provide coverage for damages
resulting from collision with dune buggy.
Reversed and remanded with instructions.
Leavitt and Leavitt, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel F. Polsenberg, Las Vegas, for
Respondent.
1. Insurance.
Insurance policy clauses should be understood in their plain, ordinary, and popular sense.
2. Insurance.
Automobile policy exclusion from uninsured motorist coverage for damages from collision with vehicle which is a farm type
tractor or any equipment designed for use principally off public roads, except while actually on public roads was ambiguous with
respect to application to dune buggy which was not licensed or registered and not legal for use on highway, and doubt would be
resolved in favor of the insured to find coverage for loss sustained in collision with dune buggy.
OPINION
Per Curiam:
This is an appeal from an order granting summary judgment. On September 20, 1987,
appellant John P. Keener was operating a Honda all terrain vehicle on a dry lake bed south of
Railroad Pass, Nevada. Keener collided with a dune buggy operated by Brad Yeager and
suffered extensive injuries to his right leg. The dune buggy was built by Yeager and was
strictly an off-road vehicle. It was never licensed or registered and was not legal for highway
use. Yeager did not carry liability insurance. Keener submitted a claim for the accident under
his uninsured motorist policy with respondent California State Automobile Association
Inter-Insurance Bureau (CSAA). CSAA denied coverage, stating that under an exclusion
clause Yeager's dune buggy was not an uninsured vehicle covered by Keener's insurance
policy. Keener filed a complaint in the district court against Yeager and CSAA for personal
injuries he received in the accident. Keener's claims against Yeager were dismissed without
prejudice. On December 6, 1989, Keener filed a motion for partial summary judgment
addressing the coverage issue. CSAA responded with its own motion for summary
judgment.
107 Nev. 504, 506 (1991) Keener v. C.S.A.A.
motion for summary judgment. On March 20, 1990, the district court entered findings of fact,
conclusions of law and a judgment in favor of CSAA. This appeal followed.
Keener's uninsured motorist policy contained the following exclusion: Uninsured motor
vehicle,' however, does not mean a vehicle . . . which is a farm type tractor or any equipment
designed for use principally off public roads, except while actually on public roads. Keener
contends that the district court erred in finding that this provision in the policy
unambiguously excluded the dune buggy from coverage. We agree.
[Headnotes 1, 2]
Insurance policy clauses should be understood in their plain, ordinary and popular sense.
Catania v. State Farm Life Ins. Co., 95 Nev. 532, 534, 598, P.2d 631, 633 (1979). It is not
clear whether the term equipment in the exclusion encompasses off-road recreational
vehicles such as a dune buggy or applies only to farm machinery. See American Fidelity Fire
Ins. v. Adams, 97 Nev. 106, 107, 625 P.2d 88, 89 (1981); Thompson v. Gov't Emp. Ins. Co.
592 P.2d 1284 (Ariz.App. 1979). Where as here, an insurance policy is subject to more than
one interpretation, doubts must be resolved in favor of the insured. See American Fidelity
Fire Ins., 97 Nev. at 107, 625 P.2d at 89; Catania, 95 Nev. at 534, 598 P.2d at 633.
Accordingly, we reverse the decision of the district court and remand this case for entry of
partial summary judgment in favor of Keener on the issue of coverage.
I respectfully disagree with the majority. I think the exclusion of farm type vehicles and
any equipment designed for use principally off public roads, except while actually on public
roads, is very clear. Equipment (machinery, apparatus, see Webster's Collegiate
Thesaurus 293 (1976)) such as bulldozers, most racing cars, toy cars, all-terrain vehicles
(ATV's), monster trucks and certainly dune buggies are designed for use principally off
public roads. Under the policy language, unless they are actually on public roads, they are
excludedclearly so.
_____________
107 Nev. 507, 507 (1991) Lee v. State
ALBERT NATHANIEL LEE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21387
July 12, 1991 813 P.2d 1010
Appeal from a judgment of conviction. Eighth Judicial District Court, Clark County; J.
Defendant was convicted of two counts of sexual assault resulting in substantial bodily
harm with use of dangerous weapon, and on count each of burglary, attempted murder with
use of deadly weapon, and robbery with use of deadly weapon, in the district court and
defendant appealed. The supreme court held that: (1) double jeopardy clause was not violated
by punishing defendant both for attempted murder and for sexual assault with substantial
bodily harm, and (2) trial court did not abuse its discretion in refusing to give special
instructions on eyewitness identification.
Affirmed.
Rose and Springer, JJ., dissented in part.
Morgan D. Harris, Public Defender and Terrence M. Jackson, Deputy Public Defender,
John Lukens, Deputy District Attorney, Clark County, for Respondent.
1. Double Jeopardy.
Double jeopardy clause was not violated by punishing defendant for both attempted murder and for sexual assault resulting in
substantial bodily harm, since each crime required proof of facts not necessary for proving the other; specific intent to kill was required
for attempted murder but not for sexual assault with substantial bodily harm, and occurrence of substantial bodily harm was not
required for attempted murder. U.S.C.A.Const. amend 5.
2. Criminal Law.
Trial court did not abuse its discretion in refusing to give special instruction on eyewitness identification, where strength of
eyewitness identification was overwhelming.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction of two counts of sexual assault resulting
in substantial bodily harm with use of a deadly weapon, and one count each of burglary,
attempted murder with use of a deadly weapon, and robbery with use of a deadly weapon.
Appellant was sentenced to four consecutive terms of life without the possibility of parole
plus consecutive terms adding up to eighty years in the Nevada State Prison.
107 Nev. 507, 508 (1991) Lee v. State
terms of life without the possibility of parole plus consecutive terms adding up to eighty years
in the Nevada State Prison.
The evidence at trial established that appellant broke into the victim's apartment and, after
asking for money and cigarettes, choked the victim until she was unconscious. Appellant
sexually assaulted the victim once while she was unconscious and again after she regained
consciousness. When the victim started to move, appellant found a knife and cut her throat
and wrist, inflicting life-threatening wounds.
[Headnote 1]
Appellant contends that by punishing both for attempted murder and for sexual assault
with substantial bodily harm, the state has violated the double jeopardy clause of the United
States Constitution. U.S. Const. Amend. V. This contention is without merit.
The starting point for a double jeopardy analysis is Blockburger v. United States, 284 U.S.
299 (1932). The Blockburger test asks whether each provision requires proof of a fact which
the other does not. Blockburger, 284 U.S. at 304. In the instant case, it is plain that for the
crimes of sexual assault with substantial bodily harm and attempted murder, each crime
requires proof of facts not necessary for proving the other crime. Specifically, we note that a
conviction for attempted murder requires proof of a specific intent to kill, which is not
required for a conviction for sexual assault with substantial bodily harm. Likewise, a
conviction for sexual assault with substantial bodily harm requires proof that substantial
bodily harm occurred, a fact not required for a conviction for attempted murder.
Accordingly, under the facts of this case, appellant committed two separate crimes.
Appellant went far beyond merely causing substantial bodily harm; his actions clearly
indicated his specific intent to kill his victim. As it happened, appellant's attempt to kill his
victim was close enough in time to the sexual assaults to also constitute a part of those
assaults. An attempt to kill need not involve substantial bodily harm, but this one did. That
substantial bodily harm, which is not an element of attempted murder, was an appropriate
basis for appellant's conviction for sexual assault resulting in substantial bodily harm.
Accordingly, appellant was properly convicted of and punished for both crimes.
Appellant also contends that the reasonable doubt instruction used in his case is
unconstitutional. See Cage v. Louisiana,
------
U.S.
------
, 111 S.Ct. 328 (1990). This court,
however, has recently held that the reasonable doubt instruction used in Nevada is
distinguishable from the one condemned in Cage. Lord v. State, 107 Nev. 28, 806 P.2d 548
(1991).
107 Nev. 507, 509 (1991) Lee v. State
[Headnote 2]
Appellant also contends that the district court erred in refusing to give proffered
instructions on eyewitness identification. This contention is also without merit. Eyewitness
identification instructions are not required in Nevada. See Sparks v. State, 96 Nev. 26, 29,
604 P.2d 802, 804 (1980). Although such instructions might be called for in a case where the
eyewitness identification was questionable, the strength of the eyewitness identification in
this case was overwhelming. The district court did not abuse its discretion in refusing to give
special instructions on eyewitness identification.
Appellant further contends that the district court abused its discretion in denying his
motions for a mistrial. We have reviewed the motions for a mistrial, and we conclude that the
district court did not abuse its discretion in denying those motions.
Appellant's contentions lacking merit, we affirm his judgment of conviction.
Rose, J., concurring in part, dissenting in part, with whom Springer, J., agrees:
I have little desire to assist Albert Nathaniel Lee (Lee) in any way because of the vicious,
heinous crime he has committed. I concur with Lee's convictions for attempted murder with
use of a deadly weapon, robbery with use of a deadly weapon, and burglary. However, I
believe that the facts of this case and the United States Constitutional provision against
double jeopardy require that the two convictions for sexual assault resulting in substantial
bodily harm with use of a deadly weapon be modified by reducing them to sexual assault.
This modification would provide little relief to Lee because he would still remain sentenced
to two consecutive life imprisonment terms plus eighty additional years.
The operative facts are that Lee sexually assaulted the victim twice in her home, but did
not inflict substantial bodily harm at that time or commit this rape with a deadly weapon. As
the victim lay tied on the floor after the assault, Lee walked through the house. Apparently
thinking that the victim may testify against him, he then took a kitchen knife and slit her
throat.
From the above recited facts, I cannot see how there is sufficient evidence to title Lee's
crimes as two sexual assaults resulting in substantial bodily harm with use of a deadly
weapon. When a deadly weapon is used subsequent to the crime, the use of that weapon and
the harm that results are not part of the original crime, but may form the elements of a
subsequent crime. In this case, Lee was convicted of attempted murder for his use of a knife
on the victim and the resulting harm. I believe that in this case, charging Lee with both
attempted murder and sexual assault resulting in substantial bodily harm with a deadly
weapon violates the double jeopardy clause of the United States Constitution as
interpreted by the United States Supreme Court.
107 Nev. 507, 510 (1991) Lee v. State
case, charging Lee with both attempted murder and sexual assault resulting in substantial
bodily harm with a deadly weapon violates the double jeopardy clause of the United States
Constitution as interpreted by the United States Supreme Court. See Blockburger v. United
States, 284 U.S. 299 (1932); Whalen v. United States, 445 U.S. 684 (1979).
In Blockburger, the Court developed an elements test to determine when prosecution of
multiple counts constitutes double jeopardy. The Court stated that double jeopardy does not
attach when each crime charged requires proof of fact which the other does not. Blockburger,
284 U.S. at 304. In Whalen, the Court further defined the Blockburger test and stated that the
query should ask whether proof of one crime will necessarily prove all the elements of the
other crime. Whalen, 445 U.S. at 693-694. The Whalen court noted that crimes with different
elements may overlap completely in a particular case. In this case, the crime of sexual assault
with use of a deadly weapon resulting in substantial bodily harm subsumed all of the
elements of attempted murder with use of a deadly weapon. Therefore, Blockburger and
Whalen precluded charging the defendant with both crimes.
In addition, the evidence shows that the defendant had concluded his sexual assault on the
victim before he decided to kill her. Therefore, the deadly weapon and the resulting bodily
harm were not part of the sexual assault. Under these circumstances, the State should have
charged Lee with two counts of sexual assault and one count of attempted murder with use of
a deadly weapon. The convictions of sexual assault resulting in substantial bodily harm
should be reduced to sexual assault with the maximum penalty for these crimes sustained. All
other convictions should be affirmed.
____________
107 Nev. 510, 510 (1991) Epp v. State
LESTER RAY EPP, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21124
July 12, 1991 814 P.2d 1011
Appeal from a conviction pursuant to jury verdict of failure to support or maintain
children. Ninth Judicial District Court, Douglas County, Norman C. Robison, Judge.
Father was convicted in the district court of willful neglect or refusal to support children.
Father appealed. The supreme court held that: (1) evidence established willfulness of failure
to support children; (2) father could be convicted despite absence from State during relevant
time period; and {3) six-year prison sentence was not excessive.
107 Nev. 510, 511 (1991) Epp v. State
State during relevant time period; and (3) six-year prison sentence was not excessive.
Affirmed.
Terri Steik Roeser, State Public Defender, and James P. Logan, Deputy State Public
Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Scott Doyle, District Attorney, and
Nancy Rey Jackson, Deputy District Attorney, Douglas County, for Respondent.
To convict of willfully neglecting or refusing to provide support and maintenance for children, State must prove parentage, legal
obligation to pay child support, actual or constructive knowledge of obligation, and willful failure to support children. NRS 201.020,
201.025, 201.070.
Evidence established willfulness of father's failure to support children as required by court order, even though father testified that
he lived hand to mouth during the relevant time; father admitted carpentry skills and earnings by working at odd jobs during time in
question, and father stated that he would be arrested and jailed if his former wife found whereabouts by tracing money order. NRS
201.020, 201.070.
State can establish willfulness of failure to support children by showing that parent had ability to generate income, earned wages
during time in question, and failed to make child support payments. NRS 201.020, 201.070.
Once State has established willfulness of father's failure to support children, father is free to demonstrate by way of defense that
nonsupport was lawfully excused or justified. NRS 201.020.
Willful act as used in statutory prohibition against willfully neglecting or refusing to pay child support is act or omission which
is done intentionally, deliberately, or designedly, as distinguished from act or omission done accidently, inadvertently, or innocently.
NRS 201.020.
Parent is excused for omission to provide support for minor children if, through no fault of his or her own, parent is unable to
provide for children after providing for reasonable living expenses; however, it is not lawful excuse if parent is unable to provide
support due to personal extravagance, indifference, or lack of reasonable diligence in obtaining employment. NRS 201.020.
Father who was absent from State committed crime of not supporting children; he had duty to support children residing in State
and inexcusably failed to do so. NRS 194.020, 201.020.
8. Criminal Law; Parent and Child.
Six-year prison sentence was not cruel and unusual punishment and was not excessive for father's failure to support children for
over five years. NRS 201.020; U.S.C.A.Const. amend. 8.
107 Nev. 510, 512 (1991) Epp v. State
OPINION
Per Curiam:
Appellant, Lester Ray Epp, was extradited from Oregon to Nevada to stand trial on felony
charges of willfully neglecting or refusing to support or maintain his two minor children.
NRS 201.020. Epp was convicted by a jury and sentenced to a term of six years in the Nevada
State Prison. The sentencing judge also ordered Epp to pay restitution in the amount of
$21,990.70 to his former wife. Epp raises a number of issues on appeal that he contends
entitle him to relief from the judgment entered below. We disagree and affirm the judgment
in its entirety.
Facts
Epp and his former wife, Shelly, were married in 1970 and two children were born to the
couple. The marriage survived until 1979 when it was terminated by a California divorce. The
divorce decree ordered Epp to pay child support in the amount of $100.00 per month per
child. Later, the decree was modified by the California court, increasing monthly support for
the couple's son to $144.00; the daughter's support remained at the initial figure. With the
exception of a single payment of $244.00 made in September of 1983, Epp made no support
payments after the modified support obligation was entered in 1983.
Shelly remarried in 1983 and moved to Nevada, where she has since resided with her
children. Epp lived a nomadic existence, pursuing various jobs in California, Oregon and
Texas. Necessity eventually prompted Shelly to contact Nevada authorities in an effort to
secure financial assistance from her former husband.
1
However, the Child Support Division
of the Douglas County District Attorney's Office was unsuccessful in repeated attempts to
locate Epp until he was finally found in Oregon in 1989.
After Epp was extradited from Oregon pursuant to a Governor's warrant, Shelly testified at
Epp's trial that her former husband paid no child support between 1984 and 1989. A child
support officer testified concerning the extent of the efforts undertaken to locate Epp during
this extended period of time. The officer also testified why the State considered it necessary
to proceed against Epp criminally instead of civilly, a decision cogently vindicated by Epp's
election of prison over the opportunity to work and pay his long-delinquent support
obligations.
Epp sought to defend his nonsupport by testifying that he did not make enough money to
provide for his children. He admitted, however, that he possessed carpentry skills. He also
admitted that from 1984 to 1989, he had worked for a commercial builder, and at a
hamburger restaurant and various service stations.
__________

1
Apparently Shelly and her new husband had two children of their own and were experiencing difficulty in
providing for the family.
107 Nev. 510, 513 (1991) Epp v. State
at a hamburger restaurant and various service stations. Therefore, it was established that Epp
was physically able to work during this time and that he in fact did so on different occasions.
Discussion
Epp, correctly noting that each element of the crime had to be proved beyond a reasonable
doubt, argues that the State failed to present evidence mandated by NRS 201.020 proving that
his failure to support the children was without lawful excuse. He therefore, contends that
there is insufficient evidence to sustain the conviction.
[Headnote 1]
NRS 201.020 makes it a crime for a parentwithout lawful excuseto willfully neglect
or refuse to provide support and maintenance for his or her minor children. In order to sustain
a conviction under the referenced statute, the State must prove: (1) parentage;
2
(2) that
defendant owed a legal obligation to pay child support (e.g., through a court order);
3
(3) that
defendant knew, or should have known, of the obligation; and (4) that defendant willfully
failed to support his children.
[Headnote 2]
Because Epp denies neither his parenthood nor a knowledge of his legal obligation to
support his children, the dispositive issue before us is whether the State proved that Epp
willfully failed to support his children.
[Headnote 3]
NRS 201. 070 provides that the State can establish willfulness by showing that a defendant
neglects or refuses to provide support or maintenance for his or her children. The term willful
also implies lack of just cause, excuse or justification. Gallegos v. People, 420 P.2d 409,
411 (Colo. 1966). Thus the State could establish willfulness by showing that Epp: (1) had the
ability to generate income; (2) earned wages during the time period in question; and (3) failed
to make the child support payments. Timmons, 706 P.2d at 1020.
The element of willfulness was clearly established in this case. Epp's ability to generate
income was shown when he admitted that he possesses carpentry skills. He also admitted that
he had earned wages by working at odd jobs during the time in question.
4
It was also
uncontested that Epp made no payments between 19S4 and 19S9.
__________

2
See NRS 201.025 (District Attorney shall take the steps necessary to establish the parentage of the
defendant); NRS 201.070 (No greater proof is necessary to establish proof of parentage in criminal action than is
necessary in civil action).

3
See State v. Timmons, 706 P.2d 1018, 1020 (Or.Ct.App. 1985).

4
There was evidence that Epp was injured for a relatively short period, but he nevertheless received worker's
compensation benefits during this time.
107 Nev. 510, 514 (1991) Epp v. State
It was also uncontested that Epp made no payments between 1984 and 1989. Finally, a strong
indication of willfulness developed during cross-examination when Epp was asked why he
hadn't paid any support. Epp stated in response that if his former wife found out his
whereabouts by tracing a money order she would have him arrested and jailed.
[Headnote 4]
Obviously, the law does not contemplate punishing a person for failing to do a thing
which he cannot do. Meek v. Commonwealth, 217 S.W.2d 961 (Ky. 1949). Once the State
established the element of willfulness, Epp was free to demonstrate by way of a defense, that
his nonsupport was lawfully excused or justified.
5
Epp attempted to establish his inability to
pay by testifying that he had lived hand to mouth during the relevant time period.
[Headnotes 5, 6]
The jury did not believe Epp and found him guilty. The jury was correctly instructed on
the law
6
and there is sufficient evidence to support the jury's verdict. Where, as here, there
is substantial evidence to support a verdict in a criminal case . . . the reviewing court will not
disturb the verdict nor set aside the judgment. Sanders v. State, 90 Nev. 433, 434, 529 P.2d
206, 207 (1974).
__________

5
See People v. Sorensen, 437 P.2d 495 (Cal. 1968) (statutory presumption that omission to support children
is prima facie evidence of willfulness and without legal excuse places on defendant the burden of establishing
lack of willfulness or that the omission was excusable); People v. Green, 495 P.2d 549, 551 (Colo. 1972)
(without just cause language in criminal nonsupport statute was surplusage to the term willfully) (quoting
Gallegos v. People, 420 P.2d 409, 411 (Colo. 1966)); Rogers v. Commonwealth, 321 S.W.2d 779 (Ky. 1959)
(defendant must establish physical or financial inability to pay child support); Meek v. Commonwealth, 217
S.W.2d 961 (Ky. 1949) (same); State v. Timmons, 706 P.2d 1018 (Or.Ct.App. 1985); State v. Campbell, 129
S.E.2d 902 (S.C. 1963); State v. Collins, 110 S.E.2d 270 (S.C. 1959) (husband must show just cause or excuse
for failure to support wife and child); see also United States Dep't of Health and Human Services, A Guide for
Judges in Child Support Enforcement, 99 (1982) (inability to pay support is only a defense against
incarceration); Krause, Child Support in America: The Legal Perspective 58 (1981) (defendant may defend
himself by proving inability to pay through no fault of his own).
This approach is also consistent with our earlier holding in Steeves v. District Court, 59 Nev. 405, 94 P.2d at
1093 (1939). In Steeves, we held that in contempt of court cases it was defendant's burden to establish that he
could not comply with the court order, Id. at 411, 94 P.2d at 1095. See also Application of Martin, 279 P.2d 873
(Idaho 1955) (burden rests upon defaulting father to show inability to comply).

6
Jury instruction 4 reads, in part, that [t]o find the defendant guilty of the felony charged the State must
prove that the defendant willfully refused to pay child support for more than one year. Willful was defined as
an act or omission which is done intentionally, deliberately or designedly, as distinguished from an act or
omission done accidentally, inadvertently, or
107 Nev. 510, 515 (1991) Epp v. State
[Headnote 7]
Epp also contends that his conviction is infirm because he was never in Nevada during the
time he was charged with the crime of nonsupport. He cites three habeas corpus cases in
support of the proposition that a person cannot commit the crime of nonsupport unless the
accused is present within the state. In Re Kuhns, 36 Nev. 487, 137 P.83 (1913); Ex Parte La
Vere, 39 Nev. 214, 156 P. 446 (1916); Ex Parte Twyeffort, 42 Nev. 259, 174 P. 431 (1918).
Epp is mistaken. NRS 194.020 reads:
The following persons, except as provided in NRS 194.010, [people incapable of
committing crimes] are liable to punishment: . . . A person who commits an act without
the state which affects persons or property within the state, or the public health, morals
or decency of the state, which, if committed within the state, would be a crime.
Moreover, although Epp committed no act, [i]f there is a duty to act, failure to perform that
duty is for the purpose of jurisdiction, tantamount to an act. Restatement of Conflict of Laws
70 comment a (1934), cited in W. LaFave & A. Scott, Handbook on Criminal Law 121-22
(1972). Under the statute, Epp was liable for the crime of nonsupport in Nevada because he
had a duty to support his children while they resided in this state and inexcusably failed to do
so. State v. Paiz, 777 S.W.2d 575 (Tex.Ct.App. 1989); State v. Shaw, 539 P.2d 250 (Idaho
1975). Obviously, the effects of Epp's criminal refusal to pay support were felt by his former
wife and children residing in Nevada. To the extent that the cases cited by Epp can be read to
hold to the contrary, those cases are disapproved.
[Headnote 8]
Epp also asserts that the six-year sentence was disproportionate to the crime and thus
violative of the eighth amendment. Solem v. Helm, 463 U.S. 277 (1983). Epp contends that
the sentence is excessive when compared to the sentences imposed for more serious crimes or
to similar crimes in other jurisdictions.
Usually, a sentence of imprisonment imposed within the limits specified under the
applicable statuteno matter how severeis not cruel and unusual punishment. Schmidt v.
State, 94 Nev. 665, 584 P.2d 695 (1978). NRS 201.020 permits the imposition of a sentence
of up to six years if refusal to support has persisted one year or more.
___________
innocently. The jury was instructed about lawful excuses for nonpayment in instruction 9. That instruction
reads:
A parent is excused for his omission to provide support for his minor children where through no fault on
his part he is unable to provide for such children after providing for his own reasonable living expenses. .
. . However, it is not a lawful excuse if the defendant is unable to provide support due to personal
extravagance, indifference, lack of reasonable diligence in obtaining employment.
107 Nev. 510, 516 (1991) Epp v. State
sentence of up to six years if refusal to support has persisted one year or more. Epp did not
make support payments for over five years and thus the sentence was within the parameters of
the statute and not cruel and unusual punishment.
We also conclude that Epp's sentence is not disproportionate to the crime he committed.
One of the most fundamental obligations of a father is the duty to provide support for his
children. State v. Boyd, 236 A.2d 476 (Conn.Cir.Ct. 1967). We agree with the Boyd court that
the following quote is apropos:
A sense of duty pursues us ever. It is omnipresent, like the Deity. If we take to
ourselves the wings of the morning, and dwell in the uttermost parts of the sea, duty
performed, or duty violated, is still with us, for our happiness or our misery. If we say
the darkness shall cover us, in the darkness as in the light our obligations are yet with
us.
Id. at 478-79 (quoting The Murder of Captain Joseph White, 6 Works of Daniel Webster
105 (18th ed. 1881)). Epp avoided his duty to support his children for over five years; his
six-year sentence was not excessive. Moreover, in a real sense, Epp is his own jailer as he
spurned the opportunity to remain free and commence a process of redemption by responsibly
working to pay his long disregarded obligation of support to his children.
We have considered Epp's remaining assignments of error and conclude that they are
meritless. The judgment entered pursuant to the jury's verdict is affirmed.
____________
107 Nev. 516, 516 (1991) Sims v. General Telephone & Electric
ROBERT NORMAN SIMS and NANCY KATHERINE SIMS, Appellants, v. GENERAL
TELEPHONE & ELECTRONICS, dba GTE GOVERNMENT SYSTEMS CORP.,
also dba GTE POWER SYSTEMS, also GTE, Respondent.
No. 20727
July 12, 1991 815 P.2d 151
Appeal from an order granting summary judgment in a wrongful death action. Eighth
Judicial District Court, Clark County; Nancy A. Becker, Judge.
Deceased janitor's parents brought wrongful death action against owner of manufacturing
plant. The district court entered summary judgment for owner, and parents appealed. The
supreme court held that: (1) genuine issues of material fact, precluding summary judgment
for owner, existed as to whether owner was negligent in failing to warn janitor of dangers
presented by degreaser and in failing to adequately secure the degreaser area; {2) "good
samaritan" law was inapplicable, since owner and its employees were under duty to take
reasonable steps to rescue janitor; {3) genuine issues of material fact, precluding
summary judgment for owner, existed as to whether owner's rescue attempts were
negligent; and {4) genuine issues of material fact, precluding summary judgment for
owner, existed as to whether owner was janitor's employer, and therefore whether
exclusive remedy provision of Nevada Industrial Insurance Act were applicable.
sented by degreaser and in failing to adequately secure the degreaser area; (2) good
samaritan law was inapplicable, since owner and its employees were under duty to take
reasonable steps to rescue janitor; (3) genuine issues of material fact, precluding summary
judgment for owner, existed as to whether owner's rescue attempts were negligent; and (4)
genuine issues of material fact, precluding summary judgment for owner, existed as to
whether owner was janitor's employer, and therefore whether exclusive remedy provisions of
Nevada Industrial Insurance Act were applicable.
Monte J. Morris, Henderson, for Appellant.
Lionel Sawyer & Collins, and David N. Frederick, Las Vegas, for Respondent.
On appeal from grant of summary judgment, supreme court is required to determine whether factual dispute exists with regard to
each element of cause of action.
2. Judgment.
To survive summary judgment motion in negligence claim, there must be factual disputes as to duty, breach, actual causation,
legal causation, and damages.
3. Negligence.
Owner of manufacturing plant had duty to warn janitor of dangers of degreaser machine and to make degreaser area safe, since
special relationship existed between owner and janitor.
4. Negligence.
Defendant has duty to warn plaintiff of foreseeable dangers when special relationship exists.
5. Judgment.
Genuine issues of material fact, precluding summary judgement for owner of manufacturing plant in wrongful death action
brought by deceased janitor's parents, existed as to whether janitor should have been informed that degreaser room would be left in
dangerous state despite discontinuance of operations, and again told not to enter degreaser room or approach degreaser tank.
6. Judgment.
Genuine issues of material fact, precluding summary judgment for owner of manufacturing plant in wrongful death action brought
by deceased janitor's parents, existed as to whether owner failed in its duty to maintain reasonably safe workplace by not either purging
degreaser tank containing dangerous chemicals, barricading entrance to degreaser room, or closing cover of tank.
7. Negligence.
To satisfy actual causation element in negligence action, plaintiff must show that but for defendant's negligence, plaintiff's injuries
would not have occurred.
8. Judgment.
Genuine issues of material fact, precluding summary judgment for owner of manufacturing plant in wrongful death
action brought by deceased janitor's parents, existed as to whether owner's alleged breach of duty to
insure that janitor was adequately warned as to dangers of degreaser, and to adequately secure degreaser
area, was actual causation of death of janitor, who was found in degreaser tank.
owner of manufacturing plant in wrongful death action brought by deceased janitor's parents, existed as to whether owner's alleged
breach of duty to insure that janitor was adequately warned as to dangers of degreaser, and to adequately secure degreaser area, was
actual causation of death of janitor, who was found in degreaser tank.
9. Negligence.
Legal causation requirement in negligence action means that defendant must be able to foresee that his negligent actions may
result in harm of particular variety to certain type of plaintiff.
10. Negligence.
Legal causation requirement for negligence action does not mean that defendant must foresee extent of harm or manner in which it
occurred.
11. Death.
Manufacturing plant owner's alleged breach of duty to adequately warn janitor of dangers of degreaser and to secure degreaser area
could constitute legal causation of janitor's death, where owner could certainly have foreseen that any negligence with regard to
degreaser might result in toxic poisoning of plant workers, even though owner might not have been able to foresee that janitor would
wind up in bottom of tank.
12. Negligence.
Gratuitously and in good faith, within meaning of good samaritan statute making those who render emergency aid,
gratuitously and in good faith, not liable for ordinary acts of negligence, limits benefits of good samaritan protection to those
situations in which rescuer was not already under duty to act. NRS 41.500.
13. Employers' Liability; Innkeepers; Negligence; Schools.
Duty to act affirmatively to aid others in peril is generally imposed where special relationship exists between parties, such as
innkeeper-guest, teacher-pupil, or employer-employee.
14. Judgment.
by deceased janitor's parents, existed as to whether security guard was involved wholly or partly in performance of owner's business
when he made attempt to rescue janitor, and therefore whether owner could be held liable for any negligence by security guard.
15. Negligence.
Owner of manufacturing plant and its employees had duty to take reasonable steps to rescue janitor who was working in plant,
even before any efforts were made to save him.
16. Negligence.
Good samaritan law was inapplicable to acts taken by owner of manufacturing plant and its employees to rescue injured janitor,
since they had duty to act affirmatively to rescue janitor. NRS 41.500.
17. Negligence.
Owner/operator of business has affirmative duty to attempt to rescue all workers injured on business premises, regardless of
whether workers are his employees in technical sense.
18. Judgment.
by deceased janitor's parent, existed as to whether owner's security guard breached duty to assist injured janitor by failing to provide
janitor with oxygen several minutes before rescue crew arrived.
19. Judgment.
by deceased janitor's parents, existed as to whether security guard's failure to provide injured janitor with oxygen before rescue crew
arrived was actual causation of death.
20. Death.
Legal causation element was satisfied with respect to deceased janitor's parents' claims, in wrongful death action brought against
owner of manufacturing plant, the security guard had failed to provide injured janitor with oxygen before rescue crew arrived.
Nevada Industrial Insurance Act provides exclusive remedy for workers injured on the job due to action of their employer. NRS
616.370.
Whether alleged employer exercised control over worker, and therefore whether Nevada Industrial Insurance Act provides
exclusive remedy for worker's injuries, is determined by totality of circumstances, including degree of supervision, existence of right to
hire and fire, right to control worker's hours and location of employment, source of wages, and extent to which worker's activities
further alleged employer's business concerns. NRS 616.370, 616.560.
23. Judgment.
by deceased janitor's parents, existed as to whether owner was janitor's employer, and thus whether Nevada Industrial Insurance Act
provided exclusive remedy for parents' claims, although cleaning service had hired, trained, and supervised janitor. NRS 616.370,
616.560.
OPINION
Per Curiam:
This is an unfortunate case. On January 22, 1987, Robert Sims (Robert), a janitor at
respondent General Telephone and Electronics' (GTE) manufacturing plant, was found curled
up in the bottom of a degreasing machine. At the time Sims was discovered, Robert Tate
(Tate), the plant security guard, attempted to remove Sims from the degreaser, but was
unsuccessful due to the heavy amount of toxic chemicals that was in the machine. Several
minutes later, police arrived, and were finally able to remove Robert from the degreaser.
Robert was then given emergency medical treatment and rushed to St. Rose de Lima
Hospital, where he died four days later without regaining consciousness.
Robert's parents, appellants Robert Sr. and Nancy Sims, then brought this wrongful death
action against GTE. In this lawsuit, appellants claim that GTE was negligent in three ways.
First, appellants claim that GTE failed to provide Robert with proper warnings of the
degreaser's dangers. Second, the Sims contend that GTE failed to take proper precautions
against the hazards of the degreaser.
that GTE failed to take proper precautions against the hazards of the degreaser. Finally,
appellants argue that Tate, GTE's employee, was negligent in his effort to rescue Robert.
After discovery, GTE moved for summary judgment on all issues. GTE maintained that
appellants' claims were barred by the exclusive remedy provisions of the workers'
compensation laws. Respondent further argued that even if GTE and Tate had behaved
negligently in the manner described, appellants had produced no evidence that this negligence
proximately caused Robert's death.
In October 1989, the court below first ruled on the summary judgment motion.
Specifically, the district court held that genuine issues of fact existed regarding whether or not
GTE was Robert's employer at the time of his death. Thus, summary judgment was denied on
this issue.
Next, the court held that appellants had presented no evidence that would tend to show
that any action by GTE proximately caused Robert's death. Finally, the district court held that,
although appellants had failed to present any evidence that would show that Tate's rescue
efforts had proximately caused Robert's death, it would allow appellants an extra month of
discovery. The district court then ordered appellants to produce evidence during this period
that would show that, if Tate had administered oxygen in the period before police arrived, it
would have made a difference. When appellants returned in November without any
evidence in support of this causal link, summary judgment was granted.
The claims in this appeal are essentially the same as those in the court below. Namely,
appellants contend that a factual dispute exists as to whether GTE or Tate's actions
proximately caused Robert's death. Respondent disagrees with this contention, and also
argues that, contrary to the finding of the court below, no dispute exists as to whether GTE
was Robert's employer. We hold that factual disputes exist regarding GTE's negligence, Tate's
negligence, and GTE's status as Robert's employer. Accordingly, we reverse the grant of
summary judgment and remand for further proceedings.
I.
This case comes before us on appeal from a grant of summary judgment. The standard of
review in such cases has been described many times by this court. In Butler v. Bogdanovich,
101 Nev. 449, 451, 705 P.2d 662, 663 (1985), we stated that [a]n entry of summary
judgment is proper only when there are no issues of fact and the moving party is entitled to an
expedited judgment as a matter of law. The party opposing the motion must set forth specific
facts that show that there is a genuine issue for trial.
for trial. Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 415, 633 P.2d 1220, 1221
(1981).
[Headnotes 1, 2]
On appeal, the summary judgment standard thus requires us to determine whether a factual
dispute exists with regard to each element of the cause of action. Consequently, in order to
survive a summary judgment motion in a negligence claim, there must be factual disputes as
to: (1) duty; (2) breach; (3) actual causation; (4) legal causation; and (5) damages. Perez v.
Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991); Beauchene v. Synanon
Foundation, Inc., 88 Cal.App.3d 342, 346 (1979).
We have, in the past, indicated our hesitance to affirm the granting of summary judgment
in negligence cases, because such claims generally present jury issues. Van Cleave, 97 Nev. at
417, 633 P.2d at 1222. If respondent can show that one of the elements is clearly lacking as a
matter of law, however, then summary judgment is proper. Id.
With these principles in mind, we now turn to an examination of whether a factual dispute
existed with respect to each element of each of appellants' negligence claims.
II.
Appellants' first contention is that GTE's negligence prior to the accident proximately
caused Robert's death. Specifically, appellants claim that GTE was negligent in the following
ways: (1) it failed to warn Robert of the dangers presented by the degreaser; and (2) it failed
to secure the degreaser area adequately. We will now examine these claims more closely in
order to determine if a factual dispute exists.
Duty
In Mangeris v. Gordon, 94 Nev. 400, 402, 580 P.2d 481, 483 (1978), we stated that in
order for a negligence action to succeed, the alleged wrongdoer must owe a duty of care to the
person injured. We further held that in failure to warn cases, defendant's duty to warn exists
only where there is special relationship between the parties, and the danger is foreseeable. Id.
at 403, 580, P.2d at 483.
We also discussed the duty question in Southern Pacific Co. v. Huyck, 61 Nev. 365, 128
P.2d 849 (1942). In Huyck, this court held, in the context of a suit under the Federal
Employees Liability Act, that an employer has a duty to exercise due care in maintaining a
safe workplace. Id. at 379, 128 P.2d at 855.
[Headnotes 3, 4]
These cases clearly reveal that GTE had a duty both to warn Robert of the dangers of the
degreaser machine, and to ensure that the machine did not present unreasonable dangers
to those in the workplace.
that the machine did not present unreasonable dangers to those in the workplace. Under
Mangeris, where a special relationship exists, there is a duty to warn plaintiff of foreseeable
dangers. Here, Robert worked in GTE's plant, and the dangers that the degreaser presented to
people like Robert should have been apparent to GTE. Thus, GTE had a duty to warn Robert
of the machine's dangers. Further, under Huyck, GTE had a duty to use reasonable care to
make its workplace, including the degreaser area, safe. Thus, we now examine whether a
factual dispute exists as to GTE's compliance with these duties.
Breach
The above cases show that GTE's duty was one of due care, both in ensuring that Robert
was adequately warned, and in making its workplace safe. As stated in Merluzzi v. Larson, 96
Nev. 409, 412, 610 P.2d 739, 742 (1980), this requirement of due care is invariably the
sameone must conform to the legal standard of reasonable conduct in light of the apparent
risk.
Thus, in order to breach this standard of care, a person must fail to exercise that degree of
care in a given situation which a reasonable man under similar circumstances would
exercise. Driscoll v. Erreguible, 87 Nev. 97, 101, 482 P.2d 291, 294 (1971). Also, this court
has noted that because reasonable people may often differ as to whether an amount of care
was appropriate under the circumstances, the issue should generally be submitted to the trier
of fact. Merluzzi, 96 Nev. at 413, 610 P.2d at 742. Consequently, in order to determine
whether a factual dispute exists regarding breach, we must look at all the circumstances
surrounding both the warnings given by GTE and the precautions taken with respect to the
degreaser.
[Headnote 5]
On the warning issue, several pieces of evidence were presented. First, there were three
warning signs on the degreaser tank itself. One sign had the word DANGER printed on it in
large lettering, and then stated, in detail, various hazards and precautions to be followed by
users of the machine. Another sign on the machine was entitled, OPERATING AND
CAUTION INSTRUCTIONS. This sign contained several instructions on how to operate the
machine safely. Finally, the third warning sign stated in large black lettering that the
degreaser contained dangerous chemicals. This sign also described various precautions, first
aid procedures, and handling and storage tips that should be followed when around the
machine. On each of the three signs appears the ominous phrase: DEATH CAN RESULT
FROM CARELESSNESS.
In addition to the warning signs on the machine itself, several uncontradicted affidavits
reveal that Robert was verbally warned about the dangers of the degreaser.
uncontradicted affidavits reveal that Robert was verbally warned about the dangers of the
degreaser. Robert's supervisor, the plant security guard, and one of Robert's co-workers all
stated that Robert had been clearly warned never to enter the degreaser room, because of the
great dangers of the machine.
Ordinarily we would agree that these verbal and written warnings were sufficient as a
matter of law. However, appellants insist that the warnings lost their significance to Robert
when the plant ceased operations and the degreaser room was no longer used. Appellants
contend that Robert was not informed that the toxicity of the chemicals in the degreaser tank
would not dissipate within a short time after its use was discontinued. Moreover, the young
man, without contrary warnings, may have assumed that when degreaser room operations
were shut down, the tank would have been cleaned and any dangerous chemical residues
removed. Appellants conclude, therefore, that Robert should have been informed that the
degreaser room would be left in a dangerous state despite the discontinuance of operations,
and again told not to enter the room or approach the degreaser tank. We agree that this issue
may not properly be resolved in a summary proceeding. Whether GTE's prior warnings and
admonitions reasonably placed Robert on notice that the degreaser room and tank would
retain its dangerous characteristics after operations were discontinued is an issue of fact to be
determined by the jury. For this reason, summary judgment was improperly granted on the
failure to warn issue.
[Headnote 6]
Appellants also contend that GTE failed in its duty to maintain a reasonably safe
workplace. Specifically, appellants contend that, under the circumstances, reasonable care
required GTE to take at least one of the following actions: (1) purge the tank; (2) barricade
the entrance to the degreaser room (there was no door); (3) close the cover of the tank; or (4)
maintain an experienced operator on duty until the tank became harmless.
We agree with appellants that a factual dispute exists on this issue. It is quite clear that the
degreaser tank was a very dangerous machine; the warnings on the tank itself reveal this, as
does the fact that GTE gave specific warnings to its employees about the hazards of the tank.
Furthermore, since the plant was shutting down, all of these options (with the possible
exception of installing a watchman) were quite feasible. For this reason, a question of fact
exists as to whether GTE's decision to rely on warnings, rather than these other precautions,
was reasonable in light of the great risks posed by the tank. This is especially so given our
frequent statements that questions of reasonableness are, in general, for the jury to decide.
Actual Causation
[Headnote 7]
Our conclusion that factual issues exist regarding the reasonableness of defendant's
behavior does not, of course, end the inquiry. For unreasonable behavior is not actionable
unless it actually causes plaintiff's injuries. See Van Cleave, 97 Nev. at 416, 633 P.2d at
1221. Put another way, in order to satisfy this element, plaintiff must show that but for
defendant's negligence, his or her injuries would not have occurred. Taylor v. Silva, 96 Nev.
738, 741, 615 P.2d 970, 971 (1980).
[Headnote 8]
An application of this but for test to the instant case reveals that, under either appellants'
failure to adequately warn [sic] or failure to secure theories, a factual dispute exists on
the actual causation issue. It is clear that but for GTE's failure to secure the degreaser area
in one of the ways described above, Robert could not, and thus would not, have gotten into
the tank. For this reason, assuming that GTE was negligent in failing to secure the area, this
negligence actually caused Robert's death, and summary judgment should not have been
granted on this issue. Moreover, if the trier of fact determines that GTE's warnings and
admonitions did not reasonably forewarn Robert of the lingering hazards that would exist in
the degreaser tank despite a permanent discontinuance of operations, the trier may also find
that, but for GTE's breach of this duty, Robert would not have entered the tank. In that
regard, trial evidence may indicate that historically Robert had strictly heeded directions
concerning his duties and safety responsibility. If so, the trier may conclude that in the face of
proper warnings, Robert would have maintained his consistent attitude of compliance with
instructions. Therefore, on the failure to warn issue, because the trier of fact may find a
negligent breach of duty, it may also find that, as a proximate result thereof, Robert entered
the tank. Summary judgment was therefore improper on this issue as well.
1

Legal Causation
Even where it has been established that defendant's conduct has been one of the causes of
plaintiff's injury, there remains the question of whether defendant will be legally responsible
for the injury. This is basically a policy issue, with the court deciding whether such
considerations point in favor of making defendant responsible for the consequences that have,
in fact, occurred.
__________

1
We, of course, are only hypothesizing, and have no impression, or suggest none, concerning what the
evidence will reflect at trial.
[Headnote 9]
The main consideration in such situations is foreseeability. As stated in Taylor v. Silva, 96
Nev. at 741, 615 P.2d at 970. [a] negligent defendant is responsible for all foreseeable
consequences . . . [of] his or her negligent act. (Emphasis added.) This requirement means
that defendant must be able to foresee that his negligent actions may result in harm of a
particular variety to a certain type of plaintiff. See Karlsen v. Jack, 80 Nev. 201, 206, 391
P.2d 319, 321 (1964).
[Headnotes 10, 11]
This requirement does not mean, however, that defendant must foresee the extent of the
harm, or the manner in which it occurred. Id. Under Karlsen, defendant need only foresee that
his or her negligent conduct could have caused a particular variety of harm to a certain type of
plaintiff. Here, GTE could certainly foresee that any negligence with regard to the degreaser
might result in toxic poisoning of the workers in the plant. The fact that GTE may not have
been able to see the manner in which the harm occurred, i.e., it would have been difficult to
foresee that Robert would wind up in the bottom of the tank, is immaterial. Thus legal
causation is present under the theories raised by appellants.
Damages
Legally recoverable damages are clearly present in this case.
III.
Appellant's next claim is that Tate's negligent rescue efforts caused Robert's death, and that
GTE is liable for these actions under a theory of respondeat superior. In order to determine
whether summary judgment was properly granted, we will again examine each element of
appellants' theory.
Duty
At common law, there was no affirmative duty on the part of strangers to render aid to
those in need of emergency assistance. See Prosser and Keeton on Torts 56, at 375 (5th ed.
1984). Once someone undertook the responsibility of giving such aid, however, the common
law imposed on the rescuer the duty of reasonable care. Id. at 378. Some observers argued
that such a rule made little sense, however, because holding rescuers accountable for their
ordinary negligence if they undertook a rescue, but not if they chose to ignore the situation,
caused many people to choose the latter option. Id. Hence, a number of states passed good
samaritan laws, which encourage the giving of emergency aid by making rescuers immune
from liability for acts of ordinary negligence. Id.
[Headnote 12]
In Nevada, the good samaritan statute makes those who render emergency aid,
gratuitously and in good faith, not liable for acts of ordinary negligence.
2
This court has
never had occasion to define the meaning of the phrase gratuitously and in good faith, as
used in the Nevada statute. We now hold that this phrase limits the benefits of good
samaritan protection to those situations in which the rescuer was not already under a duty to
act. Such a construction is in line with the obvious purpose of the statuteensuring that those
people who could ignore the situation choose instead to undertake the rescue. Further, this
construction is quite consistent with the common meaning of the word gratuitously, which
is defined in one dictionary as unnecessary or unwarranted. American Heritage Dictionary
(New College Edition 1980). Thus, good samaritan liability applies only where rescue
would otherwise be legally unnecessary or unwarranted.
[Headnotes 13-17]
Accordingly, NRS 41.500 is not applicable in this case. For the law does sometimes
require parties to act affirmatively to aid others in peril. Such a duty is generally imposed
where a special relationship exists between the parties, such as innkeeper-guest,
teacher-pupil, or, as here, an employer-employee.
3
Prosser and Keeton on Torts 56, at 376.
In these situations, the party in control of the premises is required to take reasonable
affirmative steps to aid the party in peril. Id. Because GTE, and hence, its employees, were
therefore already under a duty to take reasonable steps in rescuing Robert (even before any
efforts were made to save him), the "good samaritan" law does not apply.4 Consequently,
GTE remained under a duty of reasonable care in performing the rescue.
__________

2
The Nevada good samaritan statute is codified as NRS 41.500. This law reads in pertinent part, that any
person in this state [with certain exceptions not relevant to this appeal], who renders emergency care or
assistance in an emergency, gratuitously and in good faith, is not liable for any civil damages as a result of any
act or omission, not amounting to gross negligence, . . . .

3
GTE argues that even if the good samaritan law is not applicable, it (GTE) should still not be held liable
for Tate's actions because the security guard was acting outside of the scope of employment. This argument
ignores the crucial point, however, that issues pertaining to the scope of employment almost always present
questions of fact. Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989). The Birkner court went on to
state that the issue must be submitted to the jury whenever reasonable minds could differ as to whether the
[employee] was involved wholly or partly in performance of the master's business . . . .
Here, GTE was under a duty to rescue one of the workers who was in peril in its plant. Tate was the only
person in the building that was clearly employed by GTE. Thus, the only way that GTE could perform its duty
was through Tate. For this reason, it is at least arguable that Tate was involved wholly or partly in the
performance of GTE's business when he (Tate) made the rescue attempt. Consequently, the district court
correctly refused to grant summary judgment on this issue.
to save him), the good samaritan law does not apply.
4
Consequently, GTE remained under
a duty of reasonable care in performing the rescue.
Breach
[Headnote 18]
As discussed above, the question of whether reasonable care was exercised is generally
one that should be decided by the juryfor it almost always involves factual inquiries. Here,
appellants presented evidence that Tate could have, but did not, provide Robert with oxygen
several minutes before the rescue crew arrived. A jury could have found that such behavior
was unreasonable under the circumstances, and therefore the trial court properly held that a
factual dispute exists regarding breach.
Actual Causation
[Headnote 19]
The district court's ruling granting summary judgment in favor of GTE was based on the
fact that appellants failed to produce evidence that would support a finding of actual
causation. Specifically, appellants did not produce medical testimony to the effect that had
Robert been given oxygen ten minutes earlier, it would have made a difference. The court
therefore held that judgment against appellants on the issue of actual causation was
appropriate as a matter of law.
This is a very close question. Nevertheless, as we have often stated in the past, even a
slight factual dispute is sufficient to make the granting of summary judgment improper. See,
e.g., Oak Grove Investors v. Bell & Gosset Co., 99 Nev. 616, 623, 668 P.2d 1075, 1079
(1983). Here, Robert was still breathing (though unconscious) at the time when Tate's efforts
began, but had stopped breathing when the paramedics arrived. This evidence supports an
inference that the application of oxygen could have made a difference. Accordingly, we hold
that a factual dispute existed on the actual causation issue.
Legal Causation
[Headnote 20]
Legal causation is present under this theory because it is undoubtedly foreseeable that, if
a rescue operation is performed without proper care, the victim's condition will be made
worse.
__________

4
Although we have described this duty to rescue as arising out of the employer-employee relationship, we
must note that the owner/operator of a business has an affirmative duty to attempt to rescue all workers injured
on the business premises, regardless of whether these workers are his employees in the technical sense. Thus,
the duty to rescue existed here, even though Robert may not have been an employee of GTE (see infra), but
simply an employee of the company GTE hired (Top-Hat Maintenance) to clean the plant.
undoubtedly foreseeable that, if a rescue operation is performed without proper care, the
victim's condition will be made worse.
Damages
Legally recoverable damages are clearly present in this case.
IV.
Respondent's final contention is that even if material issues of fact are present under
appellants' negligence theories, summary judgment was nonetheless properly granted because
appellants' claims are barred by the exclusive remedy provisions of the Nevada Industrial
Insurance Act (NIIA). Specifically, GTE contends that because Robert was a GTE employee,
and because Robert was injured on the job, the NIIA provides Robert (and his parents) with
the only available recovery for his injuries.
5

[Headnote 21]
Under NRS 616.370, the NIIA provides the exclusive remedy for workers injured on the
job due to the actions of their employer. NRS 616.560 states that persons injured on the job
other than by the actions of their employer (or a person employed by their employer) may
bring an action at law for tort damages. Thus, the question that must be decided here is
whether a factual dispute exists as to whether GTE was Robert's employerif so, then the
district court properly refused to grant summary judgment on this issue; if GTE was Robert's
employer as a matter of law, however, then the lower court's grant of summary judgment may
be affirmed on this ground.
[Headnote 22]
This court has often held that the key to deciding such issues is whether the alleged
employer exercised control over plaintiff. See, e.g., Whitley v. Jake's Crane and Rigging
Inc., 95 Nev. 819, 821, 603 P.2d 689, 690 (1979). Whether such control existed, in turn, is
determined by the totality of the circumstances, including: (1) the degree of supervision; (2)
the existence of a right to hire and fire; (3) the right to control the worker's hours and location
of employment; (4) the source of wages; (5) the extent to which the worker's activities further
the alleged employer's general business concerns. Id. In addition, this court has noted that in
the absence of a clearly established NIIA defense, summary judgment must be denied. Leslie
v. J.
__________

5
It is clear from the record that appellants received NIIA benefits as a result of this incident.
A. Tiberti Construction, 99 Nev. 494, 498, 664 P.2d 963, 965 (1983).
6

[Headnote 23]
An application of these factors to the instant case reveals that the trial court properly
concluded that a factual dispute exists as to whether GTE was Robert's employer. Top-Hat
Maintenance hired, trained, and supervised Robert. Also, Robert was universally perceived as
being employed by Top-Hat, not GTE. Top-Hat controlled the number of hours Robert
worked. In addition, Top-Hat exercised the main responsibility for the decision whether to
fire employees such as Robert. Finally, Top-Hat, and not GTE, was responsible for obtaining
workman's compensation insurance for Robert. These pieces of evidence all point to the
conclusion that whether or not Robert was employed by GTE was in dispute. Thus, the
district court properly refused to grant summary judgment on this issue.
V.
Appellants allege that GTE was negligent in three ways: (1) failure to warn defendant
adequately of the dangers of the degreaser; (2) failure to secure properly the degreaser; and
(3) vicariously, through the actions of its employee, Robert Tate. With regard to the failure to
warn claim, we have concluded that material factual issues exist concerning the adequacy of
GTE's warnings and admonitions in the context of the period subsequent to the
discontinuance of operations in the degreaser room. Causation issues also remain, as
previously noted. Summary judgment on this issue was therefore improper.
On the failure to secure claim, however, summary judgment was also improper. It is clear
that GTE had a duty to maintain a safe work place, and it is undisputed that respondent took
none of the precautions suggested by appellants.
__________

6
Respondent places great reliance on several of our cases that seem to indicate that very little evidence is
required to show that a defendant is an employer of plaintiff. Close inspection reveals that this reliance is
misplaced, however, because all of the cases relied on by respondent involve an injured construction employee
of a sub-contractor, who is attempting to sue the general contractor. See, e.g., Hosvepian v. Hilton Hotels, 94
Nev. 768, 770, 587 P.2d 1313, 1315 (1978).
This distinction is significant, because such cases are controlled by NRS 616.085(1), which provides that
subcontractors and their employees shall be deemed employees of the principal contractor. In non-construction
situations such as this case, however, this court has taken a much more fact-specific approach to the problem.
See, e.g., Meers v. Haughton Elevator, 101 Nev. 283, 285 n.3, 701 P.2d 1006, 1007 n.3 (1985) (expressly noting
that inquiry is different in non-construction situations); Daniels v. Las Vegas Transfer and Storage, 97 Nev. 231,
233, 627 P.2d 400, 401 (1981).
the precautions suggested by appellants. Whether this inaction was reasonable under the
circumstances is a question for the jury. Also, because the incident clearly would not have
happened had the precautions been taken, and because the general type of injury was
foreseeable, a dispute exists as to causation. Thus, factual disputes exist regarding all
elements of this cause of action.
In addition, the trial court erred in granting summary judgment on the negligent rescue
claim. GTE (and Tate) clearly had an affirmative duty to rescue Robert, and a duty to use
reasonable care in this rescue attempt. In addition, factual disputes exist on the issue of actual
and proximate causation, as well as damages.
Finally, appellants' claims are not barred by the NIIA. While the NIIA provides the
exclusive remedy for injured employees against their employers, these injured employees may
recover in tort against third parties. Because a factual dispute exists as to whether GTE was
Robert's employer, summary judgment was properly denied on this issue.
Accordingly, the grant of summary judgment is reversed, and this matter is remanded to
the district court for further proceedings consistent with the views expressed herein.
_____________
107 Nev. 530, 530 (1991) Continental Casualty v. Riveras
CONTINENTAL CASUALTY CO., an Illinois Corporation, Appellant, v. AUGUST M.
RIVERAS, Respondent.
No. 21073
July 12, 1991 814 P.2d 1015
Appeal from declaratory judgment favoring plaintiff. Fourth Judicial District Court, Elko
County; Thomas L. Stringfield, Judge.
School district employee injured while driving school bus sought declaratory judgment
that offset provision in school district's uninsured motorist policy which reduced amount paid
by all sums payable under worker's compensation, disability benefits or similar law violated
public policy. The district court determined that offset provision was void as against public
policy, and consequently, insurer could not reduce benefits payable by amount employee
received from State Industrial Insurance System (SIIS). Insurer appealed. The supreme court
held that offset provision in uninsured motorist policy did not violate public policy, and
consequently, benefits payable to school district employee would be reduced by amount of
unreimbursed compensation employee received from SIIS.
employee would be reduced by amount of unreimbursed compensation employee received
from SIIS.
Reversed.
[Rehearing denied October 8, 1991]
Vaughan, Hull, Copenhaver & Zingale, Elko, for Appellant.
Goicoechea & DiGrazia, Ltd., Elko, for Respondent.
Insurance.
Offset provision in school district's uninsured motorist policy which reduced amount paid by all sums payable under worker's
compensation, disability benefits, or similar law did not violate public policy, where school district was not required by law to carry
uninsured motorist coverage, and reduction in coverage was commensurate with lower premiums, increasing availability of uninsured
motorist coverage to public employees. NRS 690B.020, subd. 1.
OPINION
Per Curiam:
Respondent August M. Riveras filed an action for declaratory judgment seeking to
vindicate his contention that an offset provision pertaining to uninsured/underinsured (UM)
coverage contained in a policy of insurance issued by appellant Continental Casualty Co.
violated public policy and was therefore void. The district court agreed and found that
Riveras was entitled to recover an additional $31,679.32 plus interest from Continental.
Convinced that the lower court erred in its judgment, we reverse.
Facts
On November 6, 1987, Riveras, an employee of the Elko County School District (School
District) was in an accident while driving a school bus for his employer. Riveras was an
insured under an automobile liability insurance policy issued by Continental to the School
District. The accident occurred when Riveras was forced off the road by an oncoming vehicle.
The driver of the oncoming vehicle was attempting to pass another vehicle without sufficient
road room.
Dairyland Insurance Co., insurer of the third-party driver who caused the accident, paid
Riveras $15,000.00 in partial compensation for his injuries. In an effort to resolve their
differences, Riveras and Continental entered into a settlement agreement and release which
states: Claimant [Riveras] and Company have agreed that the total amount of damages
suffered by Claimant is the sum of NINETY THOUSAND DOLLARS {$90,000.00).
Claimant [Riveras] and Company have agreed that the total amount of damages
suffered by Claimant is the sum of NINETY THOUSAND DOLLARS ($90,000.00).
Claimant hereby acknowledges that he has previously recovered the sum of FIFTEEN
THOUSAND DOLLARS ($15,000.00) from Dairyland Insurance Company. Therefore,
the total amount agreed upon as damages to be settled between Claimant and Company
is the sum of SEVENTY FIVE THOUSAND DOLLARS ($75,000.00).
1

Riveras received $41,678.58 from the State Industrial Insurance System (SIIS) in
benefits. SIIS asserted a lien against the money Riveras received from Dairyland and
Continental, thereby inducing Riveras to reimburse SIIS in the amount of $18,351.41. Ten
thousand dollars of the reimbursement came from the Dairyland settlement and the remaining
amount came from the sum of $43,320.68 that Continental had paid Riveras.
2

Riveras' declaratory judgment action was directed against the validity of the offset
provision in the Continental policy that states: any amount payable under this coverage shall
be reduced by . . . all sums paid or payable under any worker's compensation, disability
benefits or similar law. As previously noted, the district court determined that the offset
provision was void as against public policy and consequently held that Continental owed
Riveras an additional $31,679.32 plus interest.
__________

1
Riveras contends that the settlement agreement did not establish the total damages which Riveras suffered
from the accident, but rather it fixed the amount of damages which Riveras could seek under the UM coverage
provided by Continental. We do not agree. The clear wording of the agreement states at the outset that Claimant
[Riveras] and Company [Continental] have agreed that the total amount of damages suffered by Claimant is the
sum of NINETY THOUSAND DOLLARS ($90,000.00). Clearly, at least between Continental and Riveras,
and consequently any other entity that might ultimately seek any additional recovery from Continental, the
agreement fixes the total damages suffered by Riveras at $90,000.00.

2
We question SIIS's authority to assert a lien against Continental's payments to Riveras. SIIS apparently
assumed, erroneously, that its lien authority derived from NRS 616.560. Subsection (1) addresses SIIS's right of
subrogation against a recovery obtained by the injured employee against a third-party tortfeasor. The injured
employee's entitlement to coverage from his own insurance policy is based upon contract; therefore, SIIS is not
authorized to reduce worker's compensation benefits by the amount recovered under the employee's policy.
Subsection (2) does allow SIIS to place liens upon the total proceeds recovered from some person other
than the employer. NRS 616.560(2). However, this subsection also provides no basis for an assertion of the
right by SIIS to impose a lien against the Continental payments. Subsection (2) only applies to those persons as
provided in Subsection (1). Because Continental is not a tortfeasor, it does not fall within the purview of either
subsection (1) or (2).
Continental contends that the offset clause of the policy entitles it to deduct the SIIS
compensation received by Riveras from the $75,000.00 due Riveras pursuant to the
settlement agreement. Simply stated, Continental claims that because the School District was
not statutorily required to obtain UM coverage,
3
the offset provision cannot be against public
policy.
Riveras contends that the offset provision is against public policy because it prevents him
from obtaining insurance benefits for which premiums have been paid.
4
He thus insists that
the $75,000.00 settlement from Continental should not be reduced or offset by the
compensation he has received from SIIS.
The offset provision at issue in this case does not violate public policy for two reasons: (1)
the School District is not required by law to provide UM coverage for its employees,
including Riveras; and (2) the UM benefits Riveras received were commensurate with the
type of coverage upon which the premiums were calculated and paid.
The School District, being a political subdivision of the State of Nevada, is not required to
carry UM coverage. NRS 690B.020. The School District nevertheless decided to provide an
extra benefit to its workers by purchasing such coverage. In doing so, however, the School
District bargained for and obtained UM coverage that was subject to the offset provision at
issue. It is not against public policy for Continental to provide the type of coverage acquired
by the School District. Indeed, within the context of this case, public policy may be served
through the availability of UM coverage that is subject to such an offset. Insurers will be able
to provide governmental entities with optional cost savings if UM coverage may be offered
subject to an offset provision. And where, as here, such optional savings are effectuated, an
injured government employee who is not fully compensated by a tortfeasor or his or her SIIS
benefits will nevertheless have an additional source of compensation to cover his or her
damages.
__________

3
Continental cites NRS 690B.020(1) as support for its position. That statute reads:
Except as otherwise provided in this section . . . no policy insuring against liability arising out of the
ownership, maintenance or use of any motor vehicle may be delivered or issued for delivery in this state
unless coverage is provided therein or supplemental thereto for the protection of persons insured
thereunder who are legally entitled to recover damages, from owners or operators of uninsured . . .
vehicles . . . No such coverage is required in or supplemental to a policy issued to the State of Nevada or
any political subdivision thereof . . . .
(Emphasis supplied.)

4
See Maxwell v. Allstate Ins. Companies, 102 Nev. 502, 728 P.2d 812 (1986) (in context of automobile
insurance this court has consistently held that an insured is entitled to receive for which a premium has been
paid).
nevertheless have an additional source of compensation to cover his or her damages.
Moreover, Riveras is receiving the type and amount of coverage for which the School
District's policy premiums were paid. The group policy was provided by the School District
to its employees as an employment benefit. One can reasonably infer that the School District
chose less coveragethe offset provisionin favor of lower premium payments. This makes
sense given the fact that the School District was not required to provide any UM coverage in
the first place. Moreover, the School District is a contributor to SIIS. NRS 616.275. At least
to an extent, the offset provision enabled the School District to avoid paying twice for the
same coverage.
Because the offset provision is not against public policy and therefore valid, a
determination must be made as to the amount Continental must pay Riveras under the terms
of the settlement agreement and release. The record is sufficiently clear on the point to
calculate the amount Riveras is entitled to receive from Continental. The two parties agreed
that Riveras suffered $90,000.00 in total damages. The parties further agreed that the
$15,000.00 Dairyland settlement would be deducted from the $90,000.00 This left
$75,000.00 from which the remaining unreimbursable SIIS payments totalling $23,327.91
must be subtracted, thus leaving a balance of $51,672.09. The latter sum represents the
amount Continental is obligated to pay Riveras under the Terms of both the group insurance
policy and the settlement agreement and release. Since Continental has heretofore paid
Riveras $43,320.68, it must now pay Riveras an additional sum of $8,451.41 plus interest.
5

In view of our ruling, it is clear that Riveras is not entitled to attorney's fees pursuant to
NRCP 6S.
__________

5
We have determined the amount of Continental's remaining obligation to Riveras based upon the following
calculations. Continental and Riveras agreed that the total damages suffered by Riveras were $90,000.00, and
that the sum of $15,000.00 received from Dairyland would be deducted therefrom, leaving a balance of
$75,000.00 as the total of Continental's potential liability to Riveras. SIIS paid out a total of $41,678.58 in
benefits to Riveras, for which it agreed to accept $18,351.41 in total satisfaction of its subrogation rights. The
money received by SIIS as reimbursement was obtained in two increments, a $10,000.00 sum taken from the
Dairyland proceeds and a second increment of $8,351.41 which Riveras paid from the insurance proceeds of
$43,320.68 previously paid to him by Continental. Using the aforementioned figures, it can be seen that Riveras
received the following monetary benefits for the injuries he sustained in the accident:
$43,320.68Proceeds from Continental
15,000.00Proceeds from Dairyland
23,327.91Non-reimbursable benefits from SIIS
$81,648.59Total benefits paid to Riveras
The $10,000 paid to SIIS from the Dairyland proceeds still inured to Riveras' benefit in an equivalent amount
received by him through SIIS. It is
attorney's fees pursuant to NRCP 68. We therefore reverse the judgment awarding attorney's
fees to Riveras. For the reasons stated above, we reverse the judgment entered below and
remand to the district court for further proceedings in accordance with this opinion.
____________
107 Nev. 535, 535 (1991) Nat'l Union Fire Ins. v. Pratt and Whitney
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., a
Pennsylvania Corporation, Appellant, v. PRATT AND WHITNEY CANADA, INC.,
AND PIPER AIRCRAFT CORPORATION, Respondents.
No. 20781
July 24, 1991 815 P.2d 601
Appeal from an order granting summary judgment. Eight Judicial District Court, Clark
County; J. Charles Thompson, Judge.
Insurer, having paid for loss of aircraft, sued manufacturers of engine and aircraft under
theories of negligence and strict products liability. Summary judgment for defendants, was
granted by the district court and attorney fees were awarded. Insurer appealed. The supreme
court, Steffen, J., held that: (1) purely economic losses were not recoverable under tort
theories of negligence and strict liability even though defective engine damaged property
other than itself, namely, the entire aircraft; (2) tort damages were not available in the absence
of personal injury or damage to property other than the product itself even though product
crashed calamitously and exposed persons to unreasonable risk of harm; (3) defendants were
not entitled to attorney fees under prevailing party statute but were entitled to fees on ground
that insurer, to whom they made offer of judgment, failed to obtain a more favorable
judgment; and (4) defendants were not entitled to attorney fees for services performed from
the beginning of the case, but only for services from the time of the offer.
Affirmed in part, reversed in part.
Rose, J., and Mowbray, C. J., dissented.
__________
clear, however, that when Riveras paid $8,351.41 to SIIS from the money he had received from Continental,
Riveras fell short by an equivalent amount from receiving his full $90,000.00 entitlement. Continental is thus
obligated to pay Riveras the additional sum of $8,351.41 plus interest in order to make Riveras whole. Given the
terms of the settlement agreement, we are unwilling to conclude that Continental should be allowed to consider
the stated sum of $8,351.41 as part of the workmen's compensation payments subject to the offset provision.
Miles Pico & Mitchell and Gary L. Myers, Las Vegas; Kern & Wooley and Jonathan S.
Morse, Los Angeles, California, for Appellant.
Gifford & Vernon, Las Vegas, for Respondent, Pratt and Whitney.
Wait & Shaffer, Reno, for Respondent Piper Aircraft.
On review of entry of summary judgment, supreme court must first determine whether issues of material fact exist and, in the
absence of such factual issues, court must determine whether the law has been correctly perceived and applied by the district court.
2. Aviation.
Purely economic losses consisting of destruction of aircraft were not recoverable under tort theories of negligence and strict
liability from manufacturers of engine or aircraft, on theory that allegedly defective engine damaged property other than itself, namely
the entire aircraft.
Doctrine that purely economic losses are not recoverable under tort theories of negligence and strict liability was not intended to
apply to apartment building construction projects that reflect products and efforts of many different manufacturers, laborers, crafts,
supervisors and inspectors, when defective product causes damage throughout the apartment complex, but commercial products which
injure themselves are suitable for inclusion within the economic loss doctrine.
Manufacturer is not liable on tort theories of negligence and strict liability when defective product damages only itself, even when
it crashes calamitously or exposes persons to an unreasonable risk of harm.
5. Appeal and Error; Costs.
When award of attorney fees is authorized, amount thereof lies within the discretion of the trial court, and such an award will not
be disturbed unless there is an abuse of discretion. NRS 17.115, 18.010.
6. Costs.
Prevailing products liability defendants were not entitled to attorney fees under prevailing party statute where they did not obtain a
money judgment, but were entitled to award of attorney fees on ground that plaintiff, to whom offer of judgment was made, failed to
obtain a more favorable judgment. NRS 17.115, 17.115, subd. 4, 18.010, 18.010, subd. 2.
7. Costs.
When attorney fees are awarded on ground that opposing party to whom offer of judgment was made failed to obtain a more
favorable judgment, allowance for services performed from the beginning of the case is not permissible, and award may be made only
for fees incurred from the time of the offer. NRS 17.115, subs. 4, 4(b).
OPINION
Appellant National Union Fire Insurance Company (National Union) filed a subrogation
action against respondents Pratt and Whitney Canada, Inc. (PWC) and Piper Aircraft
Corporation (Piper) for recovery of payments made to its insureds for losses resulting from
the crash of an airplane. National Union sought relief under theories of negligence, strict
products liability, and warranty.
The district court, having determined that there were no disputed material issues of fact,
granted summary judgment against National Union. The lower court concluded, as a matter of
law, that tort damages were unavailable because National Union sought recovery for purely
economic loss resulting from the airplane self-destructing. PWC and Piper were also awarded
attorney's fees pursuant to both NRS 18.010 and 17.115
1
National Union, claiming error in
each of the district court's rulings, appeals. Our review of the record persuades us that the
judgment below was correct except as to the computation of attorney's fees; we therefore
affirm in part and reverse in part.
Facts
PWC manufactured and sold to Piper two Model PT6A-28 engines used on the Model
PA-31T Cheyenne II (Cheyenne) aircraft which was the subject of the litigation between the
parties to this appeal. Piper designed, manufactured, assembled, and sold the Cheyenne
originally to Airline Training Center (ATC) of San Diego, California. ATC later sold the
plane to Nevada National Leasing Corporation (Nevada National Leasing), which thereafter
leased the plane to Vegas Vic, Inc. dba Famous Pioneer Club (Pioneer). Pioneer obtained a
policy of insurance from National Union which insured the Cheyenne against loss or
damages.
On February 8, 1984, the Cheyenne took off from Bullhead City, Arizona. One of the
PWC engines failed, and the airplane crashed in the Nevada desert. National Union paid its
insured $534,766.45 for the total loss of the plane and the costs of its recovery. National
Union then filed a subrogation complaint, shortly thereafter amended, against PWC and Piper
for recovery of the losses paid to its insured. Theories of recovery asserted by National Union
included tort claims for negligence and strict products liability and a contract claim based
upon warranty.
__________

1
PWC also requested and was granted its expert witness fees.
products liability and a contract claim based upon warranty. The warranty claim was later
dropped.
Discussion
[Headnote 1]
We note preliminarily that the constraints under which we review an entry of summary
judgment are well-established. First, in a light most favorable to the appellant, we must
determine whether issues of material fact exist thus precluding judgment by summary
proceeding. Second, assuming our review confirms the absence of such factual issues, we
must determine whether the law has been correctly perceived and applied by the district
court. Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982).
Because our review confirmed that there are no genuine issues of material fact, the issue of
moment on appeal is whether the district court correctly determined that National Union
sought and was lawfully precluded from recovering damages in tort for a purely economic
loss.
2

[Headnotes 2, 3]
National Union concedes that purely economic losses usually are not recoverable under
tort theories of negligence and strict liability. See Central Bit Supply v. Waldrop Drilling, 102
Nev. 139, 717 P.2d 35 (1986); Local Joint Exec. Bd. v. Stern, 98 Nev. 409, 651 P.2d 637
(1982). Nevertheless, we are urged to accept the argument that the defective PWC damaged
property other than the engine itselfnamely, the rest of the airplanethus avoiding
application of the economic loss rule adopted in Stern, reaffirmed in Central Bit Supply, and
relied upon by the district court.
National Union contends that Oak Grove Inc. v. Bell & Gossett Co., 99 Nev. 616, 668
P.2d 1075 (1983), is both apposite and supportive of its position. In Oak Grove, however,
there was little factual basis for invoking the economic loss doctrine. Indeed, rather than
receding from our rulings in Stern and Central Bit Supply, we concluded, by way of dictum,
that the factual scenario in Oak Grove did not implicate the economic loss doctrine because it
involved a defective heating and plumbing system that caused water leakage and damage
throughout the apartment complex.
__________

2
Economic losses have been defined as: The loss of the benefit of the user's bargain, that is, the loss of the
service the product was supposed to render, including loss consequent upon the failure of the product to meet the
level of performance expected of it in the consumer's business. Am.LawProd.Liab.3d, Damages for Economic
Loss, 60:19 (1987).
Moreover, we need not reach the issue of whether National Union would be able to proceed under a warranty
theory. National Union dropped that theory of liability in the proceedings below, and the issue is not before this
court on appeal.
caused water leakage and damage throughout the apartment complex. It was thus clear that, in
contrast to the instant case, Oak Grove did not involve a single integrated product that
injured itself. The apartment complex there consisted of a number of separate apartments
units that were each self-contained and constructed for the separate occupancy of the end
users. Indeed, this court has not yet entered the fray among courts as to whether even a
house constitutes a product for purposes of the law of strict products liability, let alone an
entire apartment complex. See Elley v. Stephens, 104 Nev. 413, 418, 760 P.2d 768, 771
(1988). We deem it safe to conclude, however, that the economic loss doctrine was never
intended to apply to construction projects that reflect the products and efforts of so many
different manufacturers, laborers, crafts, supervisors and inspectors in the creation of an
essentially permanent place of habitation. On the other hand, as will be noted in greater detail
hereafter, commercial products that may, for whatever reason, injure themselves are readily
insured and suitable for inclusion within the economic loss doctrine.
In a well-reasoned admiralty case, a unanimous United States Supreme Court expressed
what is essentially the basis for our ruling in the instant case. The factual predicate for the
court's decision in East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 860 (1985),
involved a defective firststage steam reversing ring within one of the ship's turbines that had
nearly disintegrated. The defective component damaged the turbine. Thus, although the ship
itself was not damaged, property other than the defective component was damaged. Id. at 860.
The court denied liability, stating:
When a product injures only itself the reasons for imposing a tort duty are weak and
those for leaving the party to its contractual remedies are strong.
The tort concern with safety is reduced when an injury is only to the product itself.
When a person is injured, the cost of an injury and the loss of time or health may be an
overwhelming misfortune, and one the person is not prepared to meet. Escola v. Coca
Cola Bottling Co., 24 Cal.2d at 462, 150 P.2d at 441 . . . . In contrast, when a product
injures itself, the commercial user stands to lose the value of the product, risks the
displeasure of its customers who find that the product does not meet their needs, or, as
in this case, experiences increased costs in performing a service. Losses like these can
be insured. See 10A G. Couch, Cyclopedia of Insurance Law 42:385-42:401,
42:414-417 (2d ed. 1982); 7 E. Benedict, Admiralty, Form No. 1.16-7, p. 1-239 (7th ed.
1985); 5A J. Appleman & J. Appleman, Insurance Law and Practice 3252 {1970).
Insurance Law and Practice 3252 (1970). Society need not presume that a customer
needs special protection. The increased cost to the public that would result from
holding a manufacturer liable in tort for injury to the product itself is not justified. Cf.
United States v. Carroll Towing Co., 159 F.2d 169, 173 (CA2 1947).
Id. at 871-72.
We recognize that the PWC engine was a defective component part of the Piper airplane.
Therefore, the engine arguably destroyed not only itself, but other property as well, i.e., the
entire airplane. We nevertheless hold that National Union is not entitled to tort damages. As
the East River S.S. Corp. court also observed, [s]ince all but the very simplest of machines
have component parts, [a contrary] holding would require a finding of property damage' in
virtually every case where a product damages itself. Such a holding would eliminate the
distinction between warranty and strict products liability. Id. at 867 (quoting Northern Power
& Engineering Corp. v. Caterpillar Tractor Co., 623 P.2d 324, 330 (Alaska 1981)). We agree
with the reasoning of the United States Supreme Court.
3
The original purchaser of the
Cheyenne airplane did not purchase an airplane engine and thereafter install the engine
on the plane.
__________

3
Other courts have denied recovery in negligence, strict products liability, or both when a component
damages the product itself. See, e.g., Aloe Coal Co. v. Clark Equipment Co. 816 F.2d 110 (3d Cir. 1987)
(applying Pennsylvania law; recovery of damages to tractor shovel caused by fire would be limited to the law of
warranty); Kaiser Aluminum & Chemical v. Ingersoll-Rand Co., 519 F.Supp. 60. (S.D. Ga. 1981) (applying
Georgia law; damage to air compressor caused by defective fracture of inlet guide vane, a component part);
Wuench v. Ford Motor Co., 104 Ill.App.3d 317, 432 N.E.2d 969 (1982) (automobile damaged in accident
because of a broken seal); St. Paul Fire & Marine Ins. v. Steeple Jac, 352 N.W.2d 107 (Minn.App. 1984)
(automatic window washer was damaged because defective component was an economic loss not recoverable in
tort); Sharp Bros. v. American Hoist & Derrick Co., 703 S.W.2d 901 (Mo. 1986) (crane destroyed when its
counterweight broke and crushed the crane's cab); Continental Ins. v. Page Engineering Co., 783 P.2d 641
(Wyo. 1989) (dragline damaged when reeving block failed and boom fell).
Moreover, Dean Page Keeton has written:
A distinction should be made between the type of dangerous condition that causes damage only to
the product itself and the type that is dangerous to other property or persons. A hazardous product that
has harmed something or someone can be labeled as part of the accident problem; tort law seeks to
protect against this type of harm through allocation of risk. In contrast, a damaging event that harms only
the product should be treated as irrelevant to policy considerations directing liability placement in tort.
Consequently, if a defect causes damage limited solely to the property, recovery should be available, if at
all, on a contract-warranty theory.
Keeton, Torts, 32 Sw. L.J. 1, 5 (1978).
The original purchaser of the Cheyenne airplane did not purchase an airplane engine and
thereafter install the engine on the plane. Rather, as in the typical situation involving
commercial products, the buyer acquired a single integrated product consisting of numerous
component parts. Moreover, although the aircraft's warranty had expired prior to the time of
its destruction, the owner had acquired and paid for insurance protection from National Union
to cover the very eventuality that occurred. To allow National Union to recover for the
occurrence of the risk for which it had been paid would be tantamount to extending the
manufacturer's warranty with predictable results in the initial pricing of the product to the
consumer. This we are unwilling to do.
[Headnote 4]
We also reject National Union's contention that manufacturers should be liable when a
product crashes calamitously or exposes plaintiffs to an unreasonable risk of harm, despite the
absence of personal injury or damage to property other than the product itself. National Union
would have this court distinguish between accidental or calamitous losses having the
potential for human injury on the one hand, and purely economic losses on the other, and hold
a manufacturer liable for the former. Although a minority of courts have held to the contrary,
we decline to make this distinction. When injury to life or other property results from the use
of a dangerously defective product, the law of strict products liability applies as a
prophylactic and a basis for redress. When a product injures itself protection derived from
the interplay of manufacturer's warranties and insurance supplies a generally adequate basis
for consumer redress.
A major reason for denying liability in Stern was to shield [the] defendant from unlimited
liability for all of the economic consequences of a negligent act and thus keep the risk of
liability reasonably calculable. Stern, 98 Nev. at 411, 651 P.2d at 638. Manufacturers will
have difficulty calculating potential liability if it is to be determined by the arbitrary factor of
whether the purchaser noticed the gradual deterioration of a component part that, left
unattended, could result in a calamitous occurrence. Continental Ins. v. Page Engineering
Co., 783 P.2d 641, 648 (Wyo. 1989). Indeed, the United States Supreme Court has aptly
stated:
[This approach], which essentially turn[s] on the degree of risk, [is] too indeterminate
to enable manufacturers easily to structure their business behavior. Nor do we find
persuasive a distinction that rests on the manner in which the product is injured.
injured. We realize that the damage may be qualitative, occurring through gradual
deterioration or internal breakage. Or it may be calamitous. [Citations omitted.] But
either way, since by definition no person or other property is damaged, the resulting
loss is purely economic. Even when the harm to the product itself occurs through an
abrupt, accident-like event, the resulting loss due to repair costs, decreased value, and
lost profits is essentially the failure of the purchaser to receive the benefit of its
bargaintraditionally the core concern of contract law.
East River S.S. Corp., 476 U.S. at 870 (emphasis added). Moreover, the rule we adopted
avoids any difficulty associated with distinguishing between an accidental and economic loss.
4
The district court did not err, therefore, when it granted summary judgment.
[Headnote 5]
National Union also contests the district court's award of attorney's fees to PWC and Piper.
When an award of attorney's fees is authorized, the amount thereof lies within the discretion
of the trial court, and such an award will not be disturbed unless there is an abuse of
discretion. Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 455 P.2d 31 (1969).
National Union argues the award of attorney's fees to respondents was unreasonable for
three reasons: (1) the district court erroneously interpreted NRS 18.010; (2) the amount of the
awards was unreasonable and capricious; and (3) under the circumstances of this case, the
award is contrary to fairness and public policy.
[Headnote 6]
NRS 18.010(2) reads: In addition to the cases where an allowance is authorized by
specific statute, the court may make an allowance of attorney's fees to a prevailing party . . .
when he has not recovered more than $20,000 . . . . A money judgment is a prerequisite to
an award of attorney's fees under NRS 18.010(2)(a). Key Bank v. Donnels, 106 Nev. 49, 53,
787 P.2d 3S2, 3S5 {1990).
__________

4
It has been cogently observed that:
Making liability depends upon whether or not the loss results from an accident creates a difficult
issue and arguably an irrelevant issue with respect to the validity of contract provisions allocating the risk
of loss for harm to the defective product itself to the purchaser. Distinguishing accidental damage to the
product from mere economic loss is difficult in many cases, such as a defect in a component of a
television set that burns out the tubes, or an electric connection to the engine of a refrigerator that
destroys the engine.
W. Keeton, Posser and Keeton on the Law of Torts 101 (5th ed. 1984).
382, 385 (1990). Because PWC and Piper did not obtain a money judgment, neither is
entitled to attorney's fees under NRS 18.010(2)(a). However, the award of fees for expert
witnesses was proper under NRS 18.005(5) and NRS 18.020(3) as well as NRS 17.115(4).
We must now determine whether the award of attorney's fees is sustainable under NRS
17.115. The trial court awarded fees pursuant to this statute based on National Union's
rejection of two offers made by respondents. NRS 17.115(4) reads:
If the party to whom the offer of judgment is made fails to obtain a more favorable
judgment, he cannot recover:
(a) Interest on the judgment for the period between the time of service of the
summons and complaint and the time of entry of the judgment; or
(b) Costs of attorney's fees,
and the court shall order him to pay the party who made the offer that party's taxable
costs incurred from the date of filing the complaint, and may order also a reasonable
sum to cover costs of the services of expert witnesses who are not regular employees of
any party actually incurred and reasonably necessary in the preparation of the case for
trial by the prevailing party, interest on the judgment from the time of the offer to the
time of entry of the judgment and reasonable attorney's fees incurred by the party
making the offer from the time of the offer.
(Emphasis added.) PWC made an offer of judgment in the amount of $25,000.00 on
November 30, 1988. National Union did not accept the offer. PWC and Piper made a joint
offer of judgment in the amount of $115,000.00 on August 24, 1989. National Union again
rejected the offer.
The trial court stated in its orders granting respondents' motions for attorney's fees that it
considered and weighed whether: (1) National Union's claim was brought in good faith; (2)
respondents' offers of judgment were reasonable and in good faith in both their timing and
amounts; (3) National Union's decision to reject the offers and proceed to trial was grossly
unreasonable or in bad faith; and (4) whether the fees sought by the respondents were
justified in amount. See Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983) (factors
considered in determining whether to award attorney's fees pursuant to NRCP 68). The court
then found that the offers were reasonable in timing and amount, and that the amount of fees
sought was reasonable. There was no explicit finding, however, that National Union's claim
was not brought in good faith, or that it was unreasonable or reflective of bad faith not to
accept the offers of judgment.
[Headnote 7]
After reviewing the record, we conclude that the trial court was correct in awarding PWC
and Piper their attorney's fees under NRS 17.115. The court erred, however, in determining
the amount of attorney's fees it awarded PWC. A party is only entitled to its reasonable
attorney's fees incurred by the party making the offer from the time of the offer. NRS
17.115(4)(b). It appears that the amount of attorney's fees awarded to PWC includes an
allowance for services performed from the beginning of the case.
5
This is not permissible
under the dictates of NRS 17.115(4).
For the reasons stated above, we affirm the summary judgment entered below with the
exception of the amount of attorney's fees awarded to PWC which, upon remand, must be
redetermined by the district court in accordance with this opinion.
Springer and Young, JJ., concur.
Rose, J., dissenting, with whom Mowbray, C. J., agrees:
The majority holds that a plaintiff who lost his entire airplane due to the malfunction of a
defective compressor blade cannot recover from the manufacturer on a strict liability theory
because such damage is an economic loss. I find this conclusion inconsistent with both
Nevada case law on economic losses and with the reasoning in cases from other jurisdictions.
For this reason, I dissent.
We have already considered why economic loss should not be recoverable in a strict
products liability action and have indicated that it is a different type of loss than property
damage.
The doctrine of strict products liability was developed to assist plaintiffs who could
not prove that products which caused physical injury at the point of use had been
manufactured negligently. The doctrine is unavailable for purely economic loss; its
application is limited to personal injury and property damage. Russell v. Ford Motor
Co., 575 P.2d 1383 (Or. 1978); Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Cal.
1965) (dicta); Rodrigues v. Campbell Industries, 151 Cal.Rptr.
__________

5
PWC, in its motion for attorney's fees, stated that it had incurred $55,951.00 in attorney's fees from the
inception of the case on June 16, 1986. The trial court awarded PWC this amount pursuant to NRS 18.010 and
17.115.
PWC also represented that it had incurred $42,525.00 in attorney's fees from the time of the first Offer of
Judgment on November 30, 1988. The amount it had incurred from the time of the Joint Offer of Judgment on
August 24, 1989 was $17,835.00. Upon remand, we leave to the discretion of the district court the determination
of which offer should be used to establish the date from which attorney's fees are to be calculated.
tries, 151 Cal.Rptr. 90 (Cal.App. 1978); Mid Continent Aircraft v. Curry Cty. Spraying
Serv., 572 S.W.2d 308 (Tex. 1978); Restatement (Second) of Torts 402A (1965).
Local Joint Exec. Bd. v. Stern, 98 Nev. 409, 411, 651 P.2d 637, 638 (1982).
And again in Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075 (1983),
we stated that the recovery of property damage is permissible in a claim based on strict
products liability.
Strict liability applies to claims based on property damage as well as to personal
injury cases. See Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971); Rocky
Mountain Fire & Cas. Co. v. Biddulph Oldsmobile, 640 P.2d 851, 855 (Ariz. 1982).
See also Local Joint Exec. Bd. v. Stern, 98 Nev. 409, 751 P.2d 637 (1982). . . .
Id. at 625, 668 P.2d at 1080.
We later state that property damage is different than economic loss and while the former is
recoverable, the latter is not.
To guide the district court upon remand, however, we shall note that appellant
alleged in both its strict liability and negligence causes of action that the defective
plumbing and heating system caused substantial leakage of water throughout, and
damage to, the apartment [sic] within the . . . complex. The amount of property
damage sustained is a question for the finder of fact. Appellant is not seeking to recover
purely economic losses, and therefore has stated causes of action in negligence and
strict liability. See Local Joint Exec. Bd. v. Stern, supra. See also Hales v. Green
Colonial, Inc., 490 F.2d 1015, 1022 (8th Cir. 1974); Russell v. Ford Motor Co., 575
P.2d 1383, 1387 (Or. 1978).
Id. at 625, 668 P.2d at 1081.
In Oak Grove and Local Joint, we clearly held that economic loss is something other than
property damage. Economic losses include lost profits, lost productivity, lost wages, business
expectations and other losses that flow from the loss of the things damaged by the defective
product. However, a plaintiff is not precluded from recovering for loss caused to property on
theories of negligence and strict liability. The majority ignores this very clear direction in our
prior cases and now states that property damages are precluded when the product injures
itself. I find that this distinction is contrary to our previous definition of economic loss and
that it has little basis in reason. I see no reason to permit recovery on a strict products liability
basis for damage to personal property, but to preclude it if the personal property has been
incorporated with the defective component.
This distinction makes no sense because it ignores the possibility of great disparity in size
and value between the component part and the whole. It is as arbitrary as the rule proposed by
some legal theorists that property damages should be recoverable in products liability actions
only when the plaintiff suffers an accompanying personal injury. Such a rule would mean that
a plaintiff could recover for the loss of a million dollar airplane so long as the defect which
destroyed the plane also caused the plaintiff to stub a toe. The modern trend is that courts
have moved away from arbitrarily drawing lines to mark the break in the causation chain. We
could have refrained from doing so in this case by following our prior case law, and drawing
the line between property damage and economic loss.
Many courts have recognized that although plaintiffs in product liability actions should not
recover for economic losses, they may recover personal property, which includes an entire
product into which a defective part was incorporated. International Knights of Wine, Inc. v.
Ball Corp., 168 Cal.Rptr. 301 (1980); Hiigel v. General Motors Corporation, 544 P.2d 983
(Colo. 1975); Santor v. A. & M. Karagheusian, Inc., 207 A.2d 305 (N.J. 1965). In these cases,
the courts realized that there is no reason to distinguish between the different physical items
that the defective product destroyed, and permit recovery for some but not for others.
Therefore, the better rule is to permit recovery for a product destroyed by a defective
component.
The majority opinion also observes that it would be inequitable to allow National Union to
recover for the occurrence of a risk for which it had already been paid a premium. I am sure
National Union was paid a premium for insuring the airplane. However, I would suspect that
the rate structure upon which that premium was based took into account the fact that some
losses would be eliminated or reduced by subrogation actions against third-party tortfeasors.
Additionally, I think we should promote, rather than prohibit, recovery by people injured and
their subrogees against the tortfeasor and its insurance carrier. An insurance company
subrogated to the rights of an injured party should have the same rights as its insured and we
should encourage its reimbursement from third-party tortfeasors when possible.
This court has always been reluctant to establish laws or give advisory opinions, especially
when unnecessary and broad in scope. See Spears v. Spears, 95 Nev. 416, 596 P.2d 210
(1979); Union Pacific R.R. Co. v. Adams, 77 Nev. 282, 362 P.2d 450 (1961). Although
unnecessary to the analysis of this case, the majority opinion states that the economic loss
doctrine was never intended to apply to construction projects. While this may be our decision
when that issue is presented to us and carefully briefed, we should refrain from making such
broad gratuitous legal statements until properly before this court.
we should refrain from making such broad gratuitous legal statements until properly before
this court.
For the reasons stated, I dissent from the majority opinion and would reverse the summary
judgment and remand this case for trial.
______________
107 Nev. 547, 547 (1991) Nevada Hwy. Patrol v. State, Dep't Mtr. Veh.
NEVADA HIGHWAY PATROL ASSOCIATION, JERRY SEEVERS, ROBERT
WOODRUFF, ROY HUTCHINGS, JOHN ROSA, RUSS BENZLER and TIM
HALL, Appellants, v. THE STATE OF NEVADA, DEPARTMENT OF MOTOR
VEHICLES AND PUBLIC SAFETY, NEVADA HIGHWAY PATROL DIVISION,
Respondents.
No. 21369
July 26, 1991 815 P.2d 608
Certified questions of law to the Nevada Supreme Court pursuant to NRAP 5. The United
States Court of Appeals for the Ninth Circuit.
The United States Court of Appeals for the Ninth Circuit, 899 F.2d 1549, certified
questions to the Nevada Supreme Court. The supreme court held that: (1) an assembly
concurrent resolution does not have the force and effect of Nevada law, and (2) Nevada law
prohibits collective bargaining representation on behalf of state employees, unless the
representative is recognized by the State.
Questions answered.
Rose, J., dissented in part.
Aitchison, Snyder & Hoag, Portland, Oregon; Walter R. Tarantino, Carson City, for
Appellants.
Frankie Sue Del Papa, Attorney General, Carson City, Grenville Thomas Pridham,
Deputy Attorney General, Las Vegas, for Respondents.
1. Statutes.
An assembly concurrent resolution does not have the force and effect of Nevada law.
2. Labor Relations.
Absent express statutory authority, Nevada public officials and state agencies do not have the authority to enter into collective
bargaining agreements with public employees.
3. Labor Relations.
Nevada law prohibits collective bargaining representation on behalf of state employees unless the representative is recognized by
the State.
OPINION
Per Curiam:
Appellants brought an action in the state district court asserting respondent's compensation
policywhich provides highway patrol officers compensatory time off in lieu of overtime
payviolates the Fair Labor Standards Act. See 29 U.S.C. 201, 216(b). The matter was
removed to the United States District Court for the District of Nevada where summary
judgment was granted in respondents' favor.
The United States Court of Appeals for the Ninth Circuit issued a decision on March 28,
1990, reversing the grant of summary judgment and remanding the case back to the district
court with instructions. Thereafter, appellants filed a petition for rehearing, and on August 13,
1990, the United States Court of Appeals for the Ninth Circuit certified two questions for the
Nevada Supreme Court's consideration. See NRAP 5. First, the United States Court of
Appeals would like to know whether an Assembly Concurrent Resolution has the force and
effect of Nevada law. Second, the court would like to know whether Nevada law prohibits
collective bargaining representation on behalf of state employees unless the representative is
recognized by the State.
I. DOES AN ASSEMBLY CONCURRENT RESOLUTION HAVE THE FORCE AND
EFFECT OF NEVADA LAW?
[Headnote 1]
On March 3, 1969, the Nevada Legislature passed Assembly Concurrent Resolution, No.
29, which states in relevant part:
ASSEMBLY CONCURRENT RESOLUTIONProviding for state recognition of
the Nevada State Employees' Association.
WHEREAS, A substantial number of state employees are members of the Nevada
State Employees' Association; and
WHEREAS, The Nevada State Employees' Association should be recognized as
representative of its members for purposes of preserving and advancing their interests
as state employees; now, therefore, be it
Resolved by the Assembly of the State of Nevada, the Senate concurring, That the
legislature of the State of Nevada expresses its sense that the personnel division of the
department of administration should recognize the Nevada State Employee's
Association as representative of its members for discussion of conditions of
employment, hours and wages, while at the same time preserving the right of state
employees who are not members of such association to speak for themselves.
State Employees' Association as representative of its members for discussion of
conditions of employment, hours and wages, while at the same time preserving the right
of state employees who are not members of such association to speak for themselves.
A. Con. Res. 29, 55th Leg. Sess., 1969 Statutes of Nevada 1731. The federal appeals court
considered this concurrent resolution in the underlying lawsuit between the litigants. We now
hold that this resolution, like other similar concurrent resolutions, does not have the force and
effect of Nevada law.
First, by its nature, an assembly concurrent resolution is not intended to have the force and
effect of law. Pursuant to Rule 7 of the Joint Rules of the Nevada Senate and Assembly, the
purpose of a concurrent resolution is to direct the Legislative Commission to conduct interim
studies, to request the return of a bill from the other house, and to request an enrolled bill
from the Governor. On occasion, a concurrent resolution is also used to memorialize a former
member of the Legislature or other distinguished person upon death, or to congratulate or
commend any person or organization for a significant and meritorious accomplishment.
Second, [e]very bill which may have passed the legislature shall, before it becomes a law,
be presented to the governor . . . . Nev. Const. art. IV, 35. A review of the legislative
history of the aforementioned Assembly Concurrent Resolution, No. 29, indicates that this
resolution, like other concurrent resolutions passed by the legislature during the same time
period, was never presented to the Governor for approval or disapproval. See generally
FINAL VOLUME ASSEMBLY HISTORY, 1969 at 218-288. Accordingly, this assembly
concurrent resolution cannot be construed as the law of this State.
Finally, [t]he enacting clause of every law shall be as follows: The People of the State of
Nevada, represented in Senate and Assembly, do enact as follows,' and no law shall be
enacted except by bill. Nev. Const. art. IV, 23. (Emphasis added.) We have previously
ruled that this enacting clause is mandatory and must be included in every law created by the
Legislature. See State v. Rogers, 10 Nev. 250 (1875). Since Concurrent Resolution, No. 29
and other similar resolutions do not contain the requisite enactment language, they cannot
represent the law of this State.
II. DOES NEVADA LAW PROHIBIT COLLECTIVE BARGAINING REPRESENTATION
ON BEHALF OF STATE EMPLOYEES UNLESS THE REPRESENTATIVE IS
RECOGNIZED BY THE STATE?
Next, the United States Court of Appeals for the Ninth Circuit would like this court to
determine whether Nevada law prohibits collective bargaining representation on behalf of
state employees unless the representative is recognized by the State. "The rule is
well-settled among a majority of jurisdictions throughout the United States that absent
express statutory authority, public officials or state agencies do not have the authority to
enter into collective bargaining agreements with public employees." Local 223S AFSCME
v. Stratton, 769 P.2d 76, S0 {N.M. 19S9) {emphasis in original).
would like this court to determine whether Nevada law prohibits collective bargaining
representation on behalf of state employees unless the representative is recognized by the
State. The rule is well-settled among a majority of jurisdictions throughout the United States
that absent express statutory authority, public officials or state agencies do not have the
authority to enter into collective bargaining agreements with public employees. Local 2238
AFSCME v. Stratton, 769 P.2d 76, 80 (N.M. 1989) (emphasis in original). However, a
minority of jurisdictions hold otherwise, concluding that, in the absence of express statutory
authority to bargain collectively, a general grant of power to administrative officers may
imply the necessary means for carrying into execution the power granted, and this may
include collective bargaining agreements between the administrative officers and state
employee representatives. Stratton, 769 P.2d at 80-81.
There are a number of reasons why courts are split on this issue: some courts have
concluded that the separation of powers doctrine mandates specific legislative authorization
before public employee collective bargaining can occur; other courts have concluded that the
preemption doctrine bars collective bargaining absent specific legislative authorization. See
Dole, Jr., State and Local Public Employee Collective Bargaining in the Absence of Explicit
Legislative Authorization, 54 Iowa L. Rev. 539, 549-550 (1969). We believe a cogent
argument against implying a power to bargain collectively in these cases is couched in a
concern that the legitimization of public employer collective bargaining will increase the
incidence of public employee strikes.
1
Collective bargaining would seem to contemplate the
strike as a weapon to enforce the demands of employees. While such a result is uncertain, as a
policy matter, we believe the issue is best left to legislative debate and rule-making.
[Headnotes 2, 3]
Likewise, we conclude it is appropriate to allow the Legislature, if it so chooses, to confer
exclusive recognition upon specific public employee bargaining entities. Where there are
actual or potential rival employee representatives, it may be difficult for public employers to
obtain a master contract: competitive pressures may make each representative reluctant to
reach an agreement until every representative is willing to accept the same terms. Comment,
Public Employee Collective Bargaining Contracts: The Chicago Teachers, 33 U. Chi. L. Rev.
S52, S63-S64 {1966).
__________

1
The Nevada Legislature has found [t]hat the services provided by the state and local government
employers are of such nature that they are not and cannot be duplicated from other sources and are essential to
the health, safety and welfare of the people of the State of Nevada. NRS 288.230(1)(a). Therefore, it is illegal
in this State for a public employee to strike against any state or local government employer. NRS 288.230(2).
tracts: The Chicago Teachers, 33 U. Chi. L. Rev. 852, 863-864 (1966). Again, the
Legislature is in the best position to resolve the legitimate concerns associated with this fact
intensive issue. Accordingly, we adopt the majority common law rule and hold that absent
express statutory authority, Nevada public officials and state agencies do not have the
authority to enter into collective bargaining agreements with public employees, and that
Nevada law prohibits collective bargaining representation on behalf of state employees unless
the representative is recognized by the State.
III. CONCLUSION
In sum, then, we answer the two questions certified to this court by the United States Court
of Appeals for the Ninth Circuit as follows:
1. An Assembly Concurrent Resolution does not have the force and effect of Nevada
law.
2. Nevada law prohibits collective bargaining representation on behalf of state
employees unless the representative is recognized by the State.
Mowbray, C. J., Steffen and Young, JJ., and Breen, D. J.,
2
concur.
Rose, J., concurring in part, dissenting in part:
I agree with the majority that an Assembly Concurrent Resolution does not have the force
and effect of Nevada law. As to the second question in this case, however, I dissent. This
court has chosen to adopt the majority and common-law view that collective bargaining
representation on behalf of state employees is prohibited, unless the representative has
express statutory authority recognized by the State. A minority of jurisdictions have modified
the common-law rule to require less specific legislative authority before collective bargaining
is permitted. I agree with these jurisdictions.
Whether to adopt the majority or minority rule depends largely on public policy
considerations. The reasons supporting the minority jurisdictions are clearly articulated in
Local 2238 AFSCME v. Stratton, 769 P.2d 76, 80 (N.M. 1989). These reasons lead me to
conclude that the better rule requires less specific legislative authority.
The majority opinion observes that its adoption of the majority rule is better, in part,
because doing otherwise may encourage state worker strikes. Permitting acts less specific
than formal legislative recognition to be the determining factor concerning the
designation of a collective bargaining representative does not encourage state employees
to strike.
__________

2
legislative recognition to be the determining factor concerning the designation of a collective
bargaining representative does not encourage state employees to strike. On the contrary,
Nevada law expressly prohibits such strikes. NRS 288.230. Additionally, collective
bargaining can and does function with county and city employees pursuant to Nevada law
(NRS 288.033 et seq.) without the employees having the right to strike. Therefore, I think the
majority's concern of the right to strike is not warranted in this case.
The collective bargaining practice in this state should also be recognized in addition to
Nevada law. The Nevada Highway Patrol Association is the collective bargaining agent for
most of the troopers in the Nevada Highway Patrol. It represents its members in disciplinary
matters, prepares and presents individual and collective grievances of its members for
overtime and compensation benefits, represents its members on day-to-day working
conditions, advises and assists its members with issues before the state and federal judiciaries
and appears on behalf of the membership in lobbying before the Nevada State Legislature.
The Association is in fact the collective bargaining agent for its members and performs most
functions expected of a collective bargaining representative.
For the above reasons, I would answer both questions in the negative, rather than just the
first.
____________
107 Nev. 552, 552 (1991) Pfohlman v. State
EDWARD JOHN PFOHLMAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22220
August 27, 1991 816 P.2d 450
Appeal from a judgment of conviction for driving under the influence, third offense. First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
A defendant was convicted in the district court of driving under the influence, third
offense, and he appealed. The supreme court held that a DUI offense occurring more than
seven years prior to the current offense, but for which date of conviction was within seven
years of current offense, could not be used for enhancement purposes in prosecution for
driving under the influence of alcohol.
Terri Steik Roeser, State Public Defender and Janet S. Bessemer, Deputy, Carson City, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney
and Robert J. Lowe, Deputy, Carson City, for Respondent.
Automobiles.
A DUI offense occurring more than seven years prior to the current offense, but for which date of conviction was within seven
years of current offense, could not be used for enhancement purposes in prosecution for driving under the influence of alcohol. NRS
484.3792, subd. 2.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction for driving under the influence of alcohol,
third offense. Appellant was sentenced to a term of two years in the Nevada State Prison and
fined two thousand dollars.
On September 14, 1990, the state filed in the district court a criminal complaint charging
appellant with driving under the influence of alcohol, third offense. On February 19, 1991,
appellant entered into a negotiated plea agreement with the state. On April 11, 1991, the state
filed in the district court a motion to admit a DUI conviction obtained against appellant on
January 17, 1984. In that motion, the state noted that the January 17, 1984, conviction was
based on an occurrence of DUI on July 20, 1983. The state acknowledged that this occurrence
was more than seven years before the occurrence of DUI involved in this case. Nevertheless,
the state argued that because the date of conviction was within seven years of the instant
offense, the 1984 conviction should be used to enhance appellant's sentence to a felony.
1
Appellant was convicted and sentenced as noted above. This appeal followed.
Appellant contends that the district court erred in determining that a DUI offense occurring
more than seven years prior to the current offense, but for which the date of conviction is
within seven years of the current offense, can be used for enhancement purposes. We agree.
Any offense which occurred within 7 years immediately preceding the date of the
principal offense or after the principal offense constitutes a prior offense for the
purposes of this section when evidenced by a conviction, without regard to the
sequence of the offenses and convictions. The facts concerning a prior offense must be
alleged in the complaint, indictment or information, must not be read to the jury or
proved at trial but must be proved at the time of sentencing and, if the principal
offense is alleged to be a felony, must also be shown at the preliminary examination
or presented to the grand jury.
__________

1
The other prior offense is not at issue in this case.
complaint, indictment or information, must not be read to the jury or proved at trial but
must be proved at the time of sentencing and, if the principal offense is alleged to be a
felony, must also be shown at the preliminary examination or presented to the grand
jury.
The clear, unambiguous language of the statute refers to occurrences rather than
convictions. If the prior offense occurred more than seven years before the current offense
occurred, then that prior offense may not be used to enhance the punishment for the current
offense. No other construction of the statute is even arguably tenable. The state's argument to
the contrary, putatively relying on legislative intent, lacks merit.
Accordingly, we reverse appellant's judgment of conviction and remand this matter for
further proceedings.
____________
107 Nev. 554, 554 (1991) Craine v. District Court
LEONARD CALLWELL CRAINE, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK,
AND THE HONORABLE LORETTA BOWMAN, CLERK, Respondent.
No. 22132
August 27, 1991 816 P.2d 451
Original proceedings in mandamus. Eighth Judicial District Court, Clark County; Jack
Lehman, Judge.
Defendant who was convicted of three counts of sexual assault on minor under the age of
fourteen and who appealed filed in proper person petition for post-conviction relief. The
district court denied that petition, and defendant mailed to district court clerk notice of appeal
from order denying petition, but clerk refused to file that notice of appeal and returned unfiled
notice of appeal to defendant. Defendant then brought original proceeding in mandamus
against Eight Judicial District Court, Clark County, and its clerk. The supreme court held
that: (1) provisions of rule providing for papers delivered to clerk of court by defendant who
has counsel of record not to be filed, but to be marked with date received and copy forwarded
to counsel for consideration, do not apply to notices of appeal or other documents associated
with appeal that are submitted for filing by persons acting in proper person; (2) if party
submitting notice of appeal in proper person is represented by counsel, clerk must transmit
file-stamped copies of notice of appeal and associated documents to party's counsel of
record, so that counsel may take any action that he deems appropriate regarding appeal;
and {3) clerk of district court had absolute duty to file notice of appeal mailed by
defendant who had petitioned for post-conviction relief in proper person on date that
notice of appeal was received.
party's counsel of record, so that counsel may take any action that he deems appropriate
regarding appeal; and (3) clerk of district court had absolute duty to file notice of appeal
mailed by defendant who had petitioned for post-conviction relief in proper person on date
that notice of appeal was received.
Writ granted.
Leonard C. Craine, In Proper Person, for Petitioner.
Rex Bell, District Attorney, Clark County, for Respondent.
1. Criminal Law.
Supreme court's jurisdiction to entertain appeal is entirely dependent on date that clerk of district court obtains custody of notice of
appeal.
2. Courts.
Supreme court cannot allow operation of local rule of procedure or actions of court clerk to impair right of any person to prosecute
appeal to the supreme court.
3. Criminal Law.
Provisions of rule providing for papers delivered to clerk of court by defendant who has counsel of record not to be filed, but to be
marked with date received and copy forwarded to counsel for consideration, do not apply to notices of appeal or other documents
associated with appeal that are submitted for filing by persons acting in proper person.
If party submitting notice of appeal in proper person is represented by counsel, clerk must transmit file-stamped copies of notice of
appeal and associated documents to party's counsel of record, so that counsel may take any action that he deems appropriate regarding
appeal.
5. Clerks of Courts; Mandamus.
Clerk of district court had absolute duty to file notice of appeal mailed by defendant who had petitioned for post-conviction relief
in proper person on date that notice of appeal was received, and acted improperly by refusing to file document and returning unfiled
notice of appeal to defendant pursuant to rule providing for forwarding to counsel of paper delivered to clerk by defendant who has
counsel of record, and mandamus would issue directing clerk of district court to transmit to clerk of supreme court record of
post-conviction proceeding along with copy of correspondence to defendant, since clerk apparently no longer had copy of notice of
appeal submitted for filing.
OPINION
Per Curiam:
On November 2, 1990, a jury found petitioner guilty of three counts of sexual assault on a
minor under the age of fourteen. On January 31, 1991, the district court sentenced petitioner
to serve a total of two consecutive life terms in the Nevada State Prison. Petitioner's direct
appeal is presently pending in this court. See Craine v. State, Docket No.
Craine v. State, Docket No. 21917. The clerk of the district court has informed the clerk of
this court that on January 15, 1991, after rendition of the jury's verdict but before the district
court sentenced petitioner, petitioner filed in the district court a proper person petition for
post-conviction relief. The district court heard the petition on January 30, 1991, and entered
an order denying the petition on February 12, 1991.
Petitioner mailed to the respondent district court clerk a notice of appeal from the order
denying his petition for post-conviction relief. Respondent received the notice of appeal on
February 9, 1991, but refused to file that document. On February 14, 1991, the district court
clerk returned the unfiled notice of appeal to petitioner. This proceeding followed.
The district court clerk based her actions regarding petitioner's notice of appeal on EDCR
3.70, which provides in pertinent part:
Except as may be required by the provisions of NRS 34.730 to 34.830, inclusive, all
motions, petitions, pleadings or other papers delivered to the clerk of the court by a
defendant who has counsel of record will not be filed, but must be marked with the date
received and a copy forwarded to that attorney for such consideration as counsel deems
appropriate. . . .
Initially, we note that petitioner prosecuted his post-conviction proceeding in proper
person; thus, he did not have counsel of record in that proceeding for purposes of EDCR 3.70.
We also note, however, that the clerk of the district court did not follow the procedure set
forth in the rule. Specifically, the clerk did not send a copy of the notice of appeal to
petitioner's counsel of record in the criminal prosecution and retain the original notice of
appeal; rather, the clerk simply returned the notice of appeal to petitioner.
[Headnotes 1, 2]
The right to appeal is basic to the fundamental notions of fairness that underlie our judicial
system. Notices of appeal and other documents associated with an appeal are ultimately
directed to this court. Indeed, this court's jurisdiction to entertain an appeal is entirely
dependent on the date that the clerk of the district court obtains custody of a notice of appeal.
See Huebner v. State, 107 Nev. 328, 810 P.2d 1209 (1991); Jordon v. Director, Dep't of
Prisons, 101 Nev. 146, 696 P.2d 998 (1985). We cannot allow the operation of a local rule of
procedure or the actions of a court clerk to impair the right of any person to prosecute an
appeal to this court.
[Headnotes 3, 4]
We conclude that the provisions of EDCR 3.70 do not apply to notices of appeal or other
documents associated with an appeal that are submitted for filing by persons acting in
proper person.
notices of appeal or other documents associated with an appeal that are submitted for filing
by persons acting in proper person. Such documents must be treated in accordance with this
court's directives in Huebner. If the party submitting the notice of appeal is represented by
counsel, the clerk must transmit file-stamped copies of the notice of appeal and associated
documents to the party's counsel of record, so that counsel may take any action that he deems
appropriate regarding the appeal.
[Headnote 5]
It is apparent from the documents before this court that petitioner mailed a notice of appeal
challenging the denial of post-conviction relief to the district court clerk, and that the court
clerk timely received the notice of appeal. The clerk of the district court had an absolute duty
to file that notice of appeal on the date it was received. Therefore, we grant this petition for a
writ of mandamus. The clerk of this court shall issue a writ of mandamus directing the
respondent clerk of the district court to transmit to the clerk of this court the record of
petitioner's post-conviction proceeding, forthwith. Because the respondent clerk apparently no
longer has a copy of the notice of appeal submitted for filing by petitioner, the clerk shall
include in the record a copy of her correspondence to petitioner dated February 14, 1991.
1

_____________
107 Nev. 557, 557 (1991) Sheriff v. Morfin
SHERIFF, LANDER COUNTY, NEVADA, STEPHEN BISHOP AND NEVADA STATE
PRISON, Appellants, v. JOSEPH CHARLES MORFIN, Respondent.
No. 21769
August 27, 1991 816 P.2d 453
Appeal from an order of the district court granting a pretrial petition for a writ of habeas
corpus. Sixth Judicial District Court, Lander County; Llewellyn A. Young, Judge.
Petitioner applied for writ of habeas corpus, alleging that threatened prosecution would
violate principles of double jeopardy. The district court granted petition. On appeal, the
supreme court held that although district court, in sentencing defendant for offenses involving
one child victim, considered two uncharged offenses involving different victims, double
jeopardy did not bar prosecution of defendant for offenses involving other victims.
__________

1
In light of this disposition we deny as moot petitioner's motions to waive the number of copies required to
docket this petition, to proceed in forma pauperis, and for a ruling on this petition.
Frankie Sue Del Papa, Attorney General and Robert E. Wieland, Deputy, Carson City; for
Appellants.
David C. McElhinney, Reno, for Respondent.
1. Double Jeopardy.
Double jeopardy applies only to jeopardy or risks stemming from same offense; thus, person may not lawfully be subjected to risk
of twice being tried and convicted for same offense. U.S.C.A.Const. amend. 5; Const. art. 1, 8.
2. Double Jeopardy.
Although district court, in sentencing defendant for offenses involving one child victim, considered two uncharged offenses
involving different victims, double jeopardy did not bar prosecution of defendant for offenses involving the other victims; defendant
had neither been tried nor convicted of uncharged offenses, and uncharged offenses did not constitute, to any degree, part of the same
offense concerning which defendant had been tried, convicted and sentenced. NRS 201.230; U.S.C.A.Const. amend. 5; Const. art. 1,
8.
3. Criminal Law.
Sentencing proceeding is not a second trial, and court is privileged to consider facts and circumstances which would not be
admissible at trial.
4. Criminal Law.
Other criminal conduct may properly be considered at sentencing hearing, even though defendant was never charged or convicted
of it.
OPINION
Per Curiam:
In December of 1989, respondent Joseph Charles Morfin was convicted of one
misdemeanor count of annoyance or molestation of a minor and four felony counts of
lewdness with a child under the age of fourteen. Only one child victim was involved in these
counts.
During respondent's sentencing hearing, the state presented testimony from two other child
victims. These children testified that respondent had also molested them. Because there were
multiple victims, the state argued during the hearing for the maximum sentence. The district
court, however, declined to impose the maximum penalty and sentenced respondent to serve
six months in the county jail for the misdemeanor count and concurrent terms of six years in
the Nevada State Prison on each of the felony counts. See NRS 201.230 (maximum penalty
for lewdness with a minor is a term of ten years in the Nevada State Prison).
The state then initiated grand jury proceedings respecting the acts of molestation alleged
by the same two children who had testified at respondent's sentencing hearing. The grand jury
indicted respondent on a total of nine counts of lewdness with children under the age of
fourteen.
indicted respondent on a total of nine counts of lewdness with children under the age of
fourteen.
Respondent thereafter petitioned the district court for a writ of habeas corpus. Respondent
argued that he had already been punished for the alleged crimes against the two children
when their testimony was taken at the sentencing hearing and the district court imposed a
sentence based upon that testimony. Respondent asserted that for the state to try him on the
new charges would amount to double punishment for the same offenses.
Following a hearing, the district court agreed with respondent and issued a writ of habeas
corpus precluding his further prosecution. The court concluded that respondent had
essentially been tried once when the two children testified at the sentencing hearing.
Therefore, the district court concluded that another trial would violate the constitutional
prohibition against double jeopardy. We conclude, however, that the district court's decision
was erroneous.
[Headnotes 1, 2]
With due respect, the habeas judge misperceives the principle of double jeopardy
prohibited at common law and by both our federal and state constitutions. See U.S. Const.
amend. V; Nev. Const., art. I, 8. The United States Supreme Court focused on the evil
sought to be avoided by the double jeopardy proscription by noting that the Double
Jeopardy Clause . . . is written in terms of potential or risk of trial and conviction, not
punishment.' Breed v. Jones, 421 U.S. 519, 532 (1975) (quoting from Price v. Georgia, 398
U.S. 323, 329 (1970)) (emphasis in original). In addition, by the express language of our
federal and state constitutions, double jeopardy applies only to jeopardy or risk stemming
from the same offense. Thus, a person may not lawfully be subjected to the risk of twice being
tried and convicted for the same offense. Manifestly, although the sentencing court
considered two uncharged offenses involving different victims as part of the sentencing
calculus, Morfin had neither been tried nor convicted of the uncharged offenses. Moreover,
the uncharged offenses did not constitute, to any degree, part of the same offense concerning
which Morfin had been tried, convicted, and sentenced.
To further illustrate the untoward consequences of the position embraced by the district
court, it is of assistance to refer to our ruling in Gallego v. State, 101 Nev. 782, 711 P.2d 856
(1985), cert. denied, 479 U.S. 871 (1986). During the penalty phase of Gallego's trial, the jury
heard and considered evidence of two prior, uncharged homicides. In ruling on the propriety
of such evidence, we stated: In the instant case, it is clear that properly qualified evidence
of the Vaught and Scheffler murders was highly relevant to meaningful considerations of
Gallego's death worthiness.
In the instant case, it is clear that properly qualified evidence of the Vaught and
Scheffler murders was highly relevant to meaningful considerations of Gallego's death
worthiness. Such evidence not only impacted questions concerning the extent to which
Gallego might pose a future threat to society, it also illumined issues concerning the
extent to which Gallego's character was suited to assimilating acceptable norms of
societal behavior.
Id. at 791, 711 P.2d at 863. Thus, in Gallego we held it permissible for the sentencing
authority to hear the evidence of the uncharged homicides in determining the sentence to be
imposed for two entirely different offenses. If we were to adopt the logic urged by the district
court, Gallego could never be tried for the two uncharged homicides with which he had been
confronted during the penalty proceeding because the jury had considered those homicides in
determining the sentence he would receive for the charged offenses.
When Morfin was sentenced in the earlier proceeding, the sentence was imposed only on
the basis of the crimes for which he had been convicted. Morfin's sentence was, as previously
noted, less than the maximum allowed by law for the crimes upon which his convictions were
based. At no time had Morfin been tried, convicted, or sentenced for the uncharged offenses.
At no time had he been placed at risk or in jeopardy of being convicted for the uncharged
offenses prior to the sentencing hearing when they were first considered as part of Morfin's
character and background. At no time was Morfin placed twice in jeopardy for the same
offense. Society would be twice deprived if, in the first instance, the uncharged crimes could
not be evaluated in consideration of a defendant's punishment-worthiness for the offense
under scrutiny, or, if they were so considered, the defendant could then avoid accountability
by trial for the uncharged crimes. Placed in the context of the instant case, the position taken
by the district court would immunize Morfin from ever being prosecuted for crimes
concerning the two children who testified as victims of entirely unrelated and uncharged
offenses even though Morfin was being sentenced only for criminal convictions involving an
entirely different child-victim.
[Headnotes 3, 4]
A sentencing proceeding is not a second trial and the court is privileged to consider facts
and circumstances which would not be admissible at trial. Silks v. State, 92 Nev. 91, 93-94,
545 P.2d 1159, 1161 (1976). Other criminal conduct may properly be considered at the
sentencing hearing, even though the defendant was never charged or convicted of it. Id. at 94
n. 2, 545 P.2d at 1161.
Other courts considering the basic issue before us have reached the same conclusion. In
United States v. Piteo, 726 F.2d 53 (2d Cir.), cert. denied, 467 U.S. 1206 (1984), the United
States Court of Appeals for the Second Circuit considered the issue of whether double
jeopardy principles permit prosecution for criminal conduct when evidence of that conduct
has previously been introduced at a sentencing hearing. The court noted that when evidence
of unrelated crimes is introduced at a sentencing hearing, its purpose is to allow the
sentencing judge to gain a fuller assessment of the defendant so that the punishment will fit
the offender and not merely the crime for which he was convicted. Id. at 54. Such evidence
sheds new light upon the defendant's life, health, habits, conduct, and mental and moral
propensities. Id. Consequently, evidence of such conduct is not being used to impose
additional punishment on the accused. The court therefore concluded that a defendant could
be tried for criminal conduct even though evidence of that conduct had previously been
introduced at a sentencing hearing on an unrelated offense. Accord United States v. Koonce,
885 F.2d 720 (10th Cir 1989); Sekou v. Blackburn, 796 F.2d 108 (5th Cir. 1986); Johnson v.
District Court of Oklahoma County, 653 P.2d 215 (Okla.Crim.App. 1982).
In Koonce, the government introduced evidence of untried criminal conduct at a
sentencing hearing and the trial court made findings concerning it. The government later
sought to prosecute the defendant for the same conduct that had been used at the sentencing
hearing. The United States Court of Appeals for the Tenth Circuit concluded that the
defendant had not been placed in jeopardy at the earlier sentencing hearing. Instead, the
defendant was only in jeopardy of receiving a harsher sentence for the tried offense. This
procedure did not violate double jeopardy principles. Koonce, 885 F.2d at 722.
Other courts which have considered this issue have uniformly held that double jeopardy
principles do not bar a prosecution for criminal conduct which has previously been used at a
sentencing hearing to enhance a sentence. State v. Doucette, 549 A.2d 268, 269 (Vt. 1988)
(collecting cases).
These authorities note that when evidence of prior criminal conduct is introduced at a
sentencing hearing, it serves only to provide the judge with full information concerning the
accused. The conduct may justify a heavier punishment for the tried offense, but is not itself
being punished. Accordingly, we conclude that jeopardy does not attach when evidence of
uncharged offenses is introduced by the state at a sentencing hearing. Cf. Serfas v. United
States, 420 U.S. 377 (1975) (jeopardy attaches in a jury trial when the jury is empaneled and
sworn; jeopardy attaches in a non-jury trial when the court begins to hear evidence).
attaches in a non-jury trial when the court begins to hear evidence).
We therefore reverse the order of the district court granting respondent's pretrial petition
for a writ of habeas corpus and remand this case to the district court for further proceedings
1

____________
107 Nev. 562, 562 (1991) McKellar Development v. Northern Ins.
McKELLAR DEVELOPMENT OF NEVADA, INC., McKELLAR DEVELOPMENT
GROUP, INC., f/k/a McKELLAR HOLDING COMPANY, INC.; McKELLAR &
ASSOCIATES, INC., and JAMES A. McKELLAR, JR., Appellants, v. NORTHERN
INSURANCE COMPANY OF NEW YORK, and MARYLAND CASUALTY
COMPANY, Respondents.
No. 21258
October 28, 1991 816 P.2d 456
Per Curiam:
On August 27, 1991, this court issued an opinion in this matter affirming the decision of
the district court. Appellants have petitioned for rehearing.
Cause appearing, we grant appellants' petition for rehearing. Accordingly, although we
express no opinion as to the merits of the arguments presented in this appeal, we deem it
necessary to withdraw the opinion previously issued in this matter. Accordingly, we direct the
clerk of this court to publish this order in place of the withdrawn opinion.
The Associated General Contractors of America, Inc., Las Vegas Chapter, and Northern
Nevada Chapter, and the Nevada Association of Mechanical Contractors, Inc., have moved
for leave to file a brief as amici curiae in support of the position of appellants. The proposed
amici have submitted for filing such a brief. Cause appearing, we grant this motion.
Accordingly, the clerk of this court shall file the proposed brief of the amici, received by this
court on September 23, 1991, forthwith. Respondents shall have thirty (30) days from the
date of this order within which to file a supplemental brief in response to the brief of the
amici.
__________

1
The Honorable Cliff Young, Justice, did not participate in the decision of this appeal.
107 Nev. 562, 563 (1991) McKellar Development v. Northern Ins.
order within which to file a supplemental brief in response to the brief of the amici. Upon
receipt of the supplemental brief, this matter shall stand submitted for decision without
further briefing or oral argument. We deny all remaining pending motions.
It is so ORDERED.
I would deny rehearing.
___________
107 Nev. 563, 563 (1991) Ostman v. District Court
DONALD ALLEN OSTMAN, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE
HONORABLE ADDELIAR D. GUY, DISTRICT JUDGE, Respondents, and THE
STATE OF NEVADA, Real Party in Interest.
No. 20924
August 27, 1991 816 P.2d 458
Original petition for a writ of mandamus, or, in the alternative, a writ of prohibition.
Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Petition was filed seeking writ of mandamus or, in the alternative, a writ of prohibition,
challenging an order of the district court which denied petitioner's pretrial petition for a writ
of habeas corpus. The supreme court held that writ of mandamus would issue directing
dismissal of indictment without prejudice where prosecutor violated her statutory duty to
present exculpatory evidence to grand jury.
Petition granted.
Steffen, J., and Mowbray, C. J., dissented.
Momot and Tidwell, Las Vegas, for Petitioner.
James Tufteland, Deputy, Clark County, for Respondents.
1. Grand Jury.
Statement which petitioner gave to the police, which generally acknowledged the alleged events occurred but claimed that the
victim voluntarily participated in the charged sexual activity, was exculpatory and prosecutor was therefore obliged to present it to
grand jury. NRS 172.145(2).
2. Mandamus.
A writ of mandamus may issue to compel performance of an act which the law specially enjoins as a duty resulting from an office,
trust or station. NRS 34.160.
3. Mandamus.
Writ of mandamus would issue directing dismissal of indictment without prejudice where prosecutor violated her statutory duty to
present exculpatory evidence to grand jury. NRS 172.145(2).
4. Criminal Law.
Supreme court will generally not review pretrial challenges to sufficiency of an indictment.
OPINION
Per Curiam:
This petition for a writ of mandamus, or, in the alternative, a writ of prohibition,
challenges an order of the district court denying petitioner's pretrial petition for a writ of
habeas corpus. Petitioner contends that the district court abused its discretion by not granting
his pretrial petition brought on the grounds that the prosecutor violated her statutory duty to
present exculpatory evidence to the grand jury. See NRS 172.145(2). We agree.
On October 13, 1989, an indictment was filed charging petitioner with ten counts of sexual
assault and one count of coercion. NRS 200.366; NRS 207.190. Petitioner was not given
prior notice of the grand jury proceeding which resulted in this indictment. The only witness
before the grand jury was petitioner's girlfriend, the victim of the alleged assault. The victim
testified that petitioner repeatedly forced her to engage in unwanted sexual activity on the
evening of August 26, 1989. The grand jury was not informed of a voluntary statement
petitioner made to the police following the incident. In his statement, petitioner generally
acknowledged that the alleged events occurred, but claimed that the victim voluntarily
participated.
[Headnote 1]
NRS 172.145(2) provides: If the district attorney is aware of any evidence which will
explain away the charge, he shall submit it to the grand jury. This court has held that a
district attorney violates NRS 172.145(2) if he fails to present to the grand jury evidence
which has a tendency to explain away the charge. Sheriff v. Frank, 103 Nev. 160, 165, 734
P.2d 1241, 1244 (1987). The determination of whether particular evidence is exculpatory is
generally left to the discretion of the district court. After reviewing the evidence in this case,
however, we conclude, as a matter of law, that the evidence in question was exculpatory.
Specifically, we conclude that the statement petitioner gave to the police had "a tendency to
explain away the charge[s]" of sexual assault and coercion.
police had a tendency to explain away the charge[s] of sexual assault and coercion. The
prosecutor was therefore obligated under Frank to present it to the grand jury.
[Headnotes 2-4]
A writ of mandamus may issue to compel the performance of an act which the law
especially enjoins as a duty resulting from an office, trust or station . . . . NRS 34.160. In
Frank, we held that a prosecutor's refusal to present exculpatory evidence, destroys the
existence of an independent and informed grand jury.' Frank, 103 Nev. at 165 (quoting
United States v. Gold, 470 F.Supp. 1336, 1353 (N.D.Ill. 1979). In the instant case the
prosecutor's failure to present the exculpatory evidence to the grand jury irreparably impaired
the independent function of the grand jury. The district court therefore had a duty to dismiss
petitioner's indictment. See Frank, 103 Nev. at 165, 734 P.2d at 1244. It failed to do so. As
the dissent notes, this court will generally not review pretrial challenges to the sufficiency of
an indictment. See, e.g., Kussman v. District Court, 96 Nev. 544, 612 P.2d 679 (1980)
(judicial economy and sound judicial administration generally militate against use of
mandamus to review pretrial probable cause determinations). We have, however, made
exceptions to this general rule. See, e.g., State v. Babayan, 106 Nev. 155, 787 P.2d 805
(1990) (petition for writ of mandamus directing the district court to dismiss the indictment
against petitioner granted where unusual and urgent circumstances revealed a strong
necessity). This case involves only a purely legal issue. Thus, the concerns expressed in
Kussman do not apply. We conclude, therefore, that under the facts of this case, relief is
warranted. Accordingly, we grant the petition for a writ of mandamus. The clerk of this court
shall forthwith issue a writ of mandamus directing the district court to dismiss the indictment
without prejudice.
Springer, Rose and Young, JJ., concur.
Steffen, J., with whom Mowbray, C. J., agrees, dissenting:
At the outset, I note without detailed recitation of Judge Guy's findings of fact and
conclusions of law that I am in complete agreement with his determinations. In particular, I
agree that it would have been preferable for the State to have presented Ostman's post-arrest
statement to the grand jury. I also agree, however, that the State was not obligated to provide
the grand jury with the statement because it was not truly exculpatory.
I felt compelled to register my dissent in this matter because I am fearful that the majority
opinion, in practical effect, adopts an unnecessarily expansive view of the meaning of
exculpatory evidence that may add an unwarranted dimension to grand jury proceedings.
unnecessarily expansive view of the meaning of exculpatory evidence that may add an
unwarranted dimension to grand jury proceedings. Although the majority opinion simply
concludes that Ostman's post-arrest statement clearly tended to explain away the charges of
sexual assault and coercion, without reference to the contents of the statement, it would
appear that future such challenges will refer to the statement as a minimum criteria for
determining the standard for exculpatory material.
In reading and re-reading Ostman's post-arrest statement, the most that can be said for it is
that it is equivocal. It does not have a tendency to explain away the charge. As found by the
district court judge, the statement was nothing more than an explanation of what he
[Ostman] alleged had occurred, and in itself was not exculpatory other than as a general
denial that force had been used. Surely the majority is not contending that the State must
present to the grand jury a suspect's general denial concerning the commission of the crime.
Obviously, if a suspect had admitted committing the offense, there would be no grand jury
proceeding in the first place. It must be assumed in such a proceeding that the suspect denies
having committed the offense under investigation.
I am especially perplexed by the majority's ruling on this record when comparing it with
the majority's view of exculpatory evidence as expressed in Lane v. District Court, 104 Nev.
427, 760 P.2d 1245 (1988). The majority in Lane criticized the district attorney for
introducing evidence of an admission by one of the alleged victims of a sexual assault that
[t]hey [the suspects] did not rape us. I feel they took advantage of us. The majority also
expressed disapproval when the State allowed another witness to testify concerning the sexual
comments made by one of the alleged victims on the night of the alleged attacks, despite the
clear relevance of the testimony in showing the state of mind and the intentions of the
victims on the occasion when the offenses allegedly occurred. Id. at 430-33, 444-45, 760
P.2d at 1247-49, 1256-57.
1
Thus, despite the State's position in Lane that it was obligated to
present direct testimony of an admission by an alleged victim that the victims were not raped,
and an indication from the language allegedly used by a victim that she was inviting sexual
activity, the majority disagreed.
The post-arrest statement in the instant case does not approach the exculpatory nature of
the statements in Lane that were rejected by the majority as inappropriate for introduction by
the State in a grand jury proceeding. Ostman's statement was no more than a general denial
of the use of force at best, and at worst an inculpatory statement providing additional fuel
for returning a true bill.
__________

1
Although the majority in Lane sought to justify part of its ruling concerning evidence presented by the State
on the basis of a violation of Nevada's rape shield statute, a cursory look at the statute discloses that the rape
shield legislation does not expressly or impliedly apply to the State.
more than a general denial of the use of force at best, and at worst an inculpatory statement
providing additional fuel for returning a true bill.
NRS 172.145(2) requires a prosecutor to present to the grand jury evidence which will
explain away the charge. See also Sheriff v. Frank, 103 Nev. 160, 165, 734 P.2d 1241, 1244
(1987) (district attorney has duty to present evidence that has tendency to explain away the
charge). I am unaware of any Nevada case law that supports Ostman's underlying contention
that a simple denial by an accused constitutes evidence that tends to explain away the
charge. The statutory requirement for the presentation of exculpatory evidence obviously
serves the important function of clearing the innocent. As noted previously, because it may be
properly assumed that every suspect who does not admit guilt in the commission of a criminal
offense therefore denies guilt, the fact that they do so does not tend to explain away the
charge.
Moreover, there is no Nevada case law supporting Ostman's specific contention that an
allegation of consent by an accused constitutes exculpatory evidence that tends to explain
away the charge. As noted above, the majority holding in Lane seems to imply just the
opposite. Furthermore, I suggest that a prosecutor should be allowed substantial latitude in
selecting the evidence to be presented to a grand jury unless there is evidence that clearly
tends to explain away the charge. As the court stated in Matter of Grand Jury Sandoval
County, 750 P.2d 464 (N.M.App. 1988):
In sum, although the prosecutor is required to present direct exculpatory evidence to
the grand jury, he is invested with wide discretion as to the selection and presentation
of evidence. Mandamus will not lie where the effect of its issuance would be to
improperly limit the scope of the state's prosecutorial discretion.
Id. at 468. I submit that this court should not reevaluate a prosecutor's determination as to the
nature of the evidence in his or her possession absent a clear abuse of discretion. Otherwise,
as observed by Judge Guy, a grand jury proceeding, which is not convened for purposes of
determining innocence or guilt, will expand to a full presentation of trial evidence, including
a suspect's entire defense.
The position adopted by the majority is also at variance with that taken by the federal
courts. Although Nevada does have a statutory provision requiring a prosecutor to present
evidence to a grand jury which will explain away the charge, NRS 172.145(2), the federal
approach is both reasonable and of practical value in placing the aforementioned Nevada
statute in proper perspective. In support of the stated premise, I will quote from but three of a
large number of federal decisions relevant to the issue under consideration.
but three of a large number of federal decisions relevant to the issue under consideration. In
United States v. Boykin, 679 F.2d 1240 (8th Cir. 1982), the court stated:
An indictment may be valid even if it is based entirely on hearsay. [Cite omitted.] As
noted in Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397
(1956), [a]n indictment returned by a legally constituted and unbiased grand jury, like
an information drawn by the prosecutor, if valid on its face, is enough to call for trial of
the charge on the merits. The Fifth Amendment requires nothing more. A defendant
may not challenge an indictment on the ground that information which he considered
favorable to his defense was not presented to the grand jury. E.g. United States v.
Cederquist, 641 F.2d 1347, 1353 n.3 (9th Cir. 1981). See United States v. Gunter, 631
F.2d 583, 586 (8th Cir. 1980).
Id. at 1246. The court in United States v. Ciambrone, 601 F.2d 616 (2nd Cir. 1979), in
addressing the reasons for the federal position, stated:
Despite recent movements for revision of grand jury procedure, a prosecutor is not
presently obligated to search for and submit to a grand jury evidence favorable to the
defense or negating guilt, when it has not been requested by the grand jury. See United
States v. Y. Hata & Co., Ltd., 535 F.2d 508, 512 (9th Cir.), cert. denied, 429 U.S. 828,
97 S.Ct. 87, 50 L.Ed. 2d 92 (1976); United States v. Ruyle, 524 F.2d 1133, 1135-36
(6th Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed 2d 175 (1976). A
grand jury proceeding is not an adversary hearing in which the guilt or innocence of the
accused is adjudicated, United States v. Calandra, . . . 414 U.S. 338, 343, 94 S.Ct. 613,
618 (1956). To convert a grand jury proceeding from an investigative one into a
mini-trial of the merits would be unnecessarily burdensome and wasteful, since, even if
an indictment should be filed, the defendant could be found guilty only after a guilty
plea or criminal jury trial in which guilt was established beyond a reasonable doubt.
Id. at 623. The third case, United States v. Gardner, 860 F.2d 1391 (7th Cir. 1988), concluded
that the defendant's evidence did not negate guilt, and that this is a situation in which the
Government simply refused to present all of the appellant's available defenses. In such a
context, we conclude that the indictment was not defective. In our judicial system, the
appellant is entitled to one criminal trial, not two. Id. at 1395.
The federal position appears to be one of reason, recognizing that if a prosecutor has
exculpatory evidence that would negate the charges against an accused, it should be
presented.
that if a prosecutor has exculpatory evidence that would negate the charges against an
accused, it should be presented. On the other hand, if the accused's evidence would serve
only as a general denial or as information considered favorable to the defense, the prosecution
should be under no obligation to present it. In accepting the federal position, we would not
impinge upon the true intent of Nevada's statutory requirement that a prosecutor present
exculpatory evidence that will explain away the charge. To hold to the contrary would
transmute the grand jury proceeding from an investigative vehicle into a mini-trial that would
emasculate the value of such proceedings as a prosecutorial charging option.
Finally, I suggest that this is not an appropriate matter for extraordinary relief. By analogy,
our decision in Kussman v. District Court, 96 Nev. 544, 612 P.2d 679 (1980), should apply in
the instant case. In describing our ruling in Kussman, we stated:
[I]n Kussman v. District Court, supra, the petitioner challenged an order denying a
pretrial writ of habeas corpus based on lack of probable cause. We expressly recognized
that we have the constitutional power to review such an order through a mandamus
proceeding. We also recognized, however, that we are not compelled to exercise that
power. 96 Nev. at 545-46, 612 P.2d at 680. We concluded in Kussman that judicial
economy and sound judicial administration generally will militate against utilization of
mandamus to review pretrial probable cause determinations. 96 Nev. at 546, 612 P.2d
at 680. Thus, we exercised our discretion against entertaining petitions for writs of
mandamus in that context.
State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 361, 662 P.2d 1338, 1340 (1983).
Three years after Kussman, this court deferred to the considerations of judicial economy and
sound judicial administration in concluding that we would no longer entertain mandamus
petitions to review orders denying motions to dismiss and motions for summary judgment.
Thompson, 99 Nev. at 362, 662 P.2d at 1340.
I suggest that in the vast majority of challenges to the evidence presented to grand juries,
there will be no merit determinations. This court's scarce resources are not best utilized in
reviewing pre-trial challenges to the sufficiency of an indictment. This is true whether the
challenge is to the sufficiency of the evidence presented or the nature of the evidence not
presented. There should, of course, be exceptions in instances where a petition raises a purely
legal challenge to the sufficiency of an indictment, such as a defense based upon the
contention that the conduct charged in the indictment does not constitute a crime, that
the indictment is so vague that it fails to charge a crime, that the grand jury is not
properly constituted, or that the indictment does not contain each of the essential
elements.
such as a defense based upon the contention that the conduct charged in the indictment does
not constitute a crime, that the indictment is so vague that it fails to charge a crime, that the
grand jury is not properly constituted, or that the indictment does not contain each of the
essential elements.
In the instant case, I am persuaded that there is no basis for concluding, as a matter of law,
that Ostman's post-arrest statement was sufficiently exculpatory to explain away the charge. I
suggest, therefore, that this court should not view this petition as an appropriate cause for
extraordinary relief.
Although a challenge based upon a prosecutor's failure to present exculpatory evidence is
not necessarily the equivalent of a probable cause challenge, as in Kussman, I submit that
such a challenge is nevertheless more analogous to a probable cause challenge than it is to the
purely legal types of questions illustrated above. I also submit that the instant ruling will
prompt a substantial increase in the number of writs filed in this court as challenges to the
adequacy of prosecutorial presentations of evidence to grand juries, including the nature
thereof. I suggest, therefore, that this court should deny extraordinary relief to these types of
petitions in deference to the same considerations of judicial economy and sound judicial
administration that we found compelling in Kussman and Thompson.
For the reasons stated above, I am unable to endorse the majority opinion either on the
merits or as a matter of procedure, I therefore dissent.
____________
107 Nev. 570, 570 (1991) Anderson v. Anderson
RUDOLPH ANDERSON, Appellant, v. DORIS ANDERSON, Respondent.
No. 20367
August 28, 1991 816 P.2d 463
Appeal from a decree of divorce and division of property. Eighth Judicial District Court,
Clark County; Donald M. Mosley, Judge.
Appeal was taken from a decree of divorce and division of property by the district court.
The supreme court, Steffen, J., held that: (1) parties' transmutation of community funds into
separate funds, which resulted in a deposit of $110,000 to wife's account and $54,000 to
husband's account, was just and equitable in light of fact that the husband received twice the
amount of social security as wife, that husband was awarded an automobile valued at twice
that of wife's vehicle, and that husband moved in with his girlfriend where he was able to live
without payment of rent, and {2) even if district court facilitated transmutation of
community funds into separate funds without a required written agreement, husband was
estopped from challenging the unequal distribution of the joint funds where he had
temporarily misled wife into believing that the division of the community funds was to be
permanent.
and (2) even if district court facilitated transmutation of community funds into separate funds
without a required written agreement, husband was estopped from challenging the unequal
distribution of the joint funds where he had temporarily misled wife into believing that the
division of the community funds was to be permanent.
Affirmed.
Greenman, Goldberg, Raby & Marinez, Las Vegas, for Appellant.
Mark Jenkin, Las Vegas, for Respondent.
1. Husband and Wife.
Parties' transmutation of community funds into separate funds, which resulted in a deposit of $110,000 to wife's account and
$54,000 to husband's account, was just and equitable in light of facts that husband received twice the amount of social security as wife,
that husband was awarded an automobile valued at twice that of wife's vehicle, and that husband moved in with his girlfriend where he
was able to live without payment of rent.
2. Husband and Wife.
Even if district court facilitated transmutation of community funds into separate funds without a required written agreement,
husband was estopped from challenging the unequal distribution of the joint funds where he had temporarily misled wife into believing
that the division of the community funds was to be permanent. NRS 123.220(1).
OPINION
Prior to the termination of their thirty-two year marriage, Rudolph and Doris Anderson,
appellant and respondent, respectively, agreed to divide their joint bank accounts. The parties
signed the requisite withdrawal slips, and, at the direction of Rudolph, deposited the money
into two separate accounts. The unequal division thus created resulted in the deposit of
$110,000.00 to Doris's account and $54,000.00 to Rudolph's account.
Rudolph contends that the trial court erred in finding that the unequal distribution of the
joint funds constituted a final division of these funds. He argues that the court should have
disallowed the division in favor of a more equitable distribution.
1
We disagree.
__________

1
The concurring opinion would have this court decide an issue of law that was not formally raised as an
issue on appeal. The only issue framed by appellant for review by this court was [d]id the Court make an
equitable
[Headnote 1]
The district court's decision is supported in the record by substantial evidence. In
particular, the property division was just and equitable in that Rudolph receives twice the
amount of Social Security as Doris, and Rudolph was awarded an automobile valued at twice
that of Doris's vehicle. Moreover, Rudolph moved in with his girlfriend where he was able to
live without the payment of rent. See McNabney v. McNabney, 105 Nev. 652, 782 P.2d 1291
(1989).
[Headnote 2]
Even if we were to accept, arguendo, Rudolph's bare contention that NRS 123.220(1)
requires a written agreement to transmute community property into separate property, and that
the district court facilitated the transmutation of community funds into separate funds without
such a written agreement, the record still supports the result reached by the lower court. There
is ample record evidence to sustain the distribution of the funds in the joint accounts under
the doctrine of estoppel. See Schreiber v. Schreiber, 99 Nev. 453, 663 P.2d 1189 (1983).
Indeed, Rudolph admitted in court that he temporarily misled Doris into believing that the
division of the community funds was to be permanent. Each of the elements of estoppel
addressed in Lubritz v. Circus Circus Hotels, 101 Nev. 109, 693 P.2d 1261 (1985), and
Southern Nevada Memorial Hosp. v. State Dep't of Human Resources, 101 Nev. 387, 705
P.2d 139 (1985), are substantially satisfied on this record.
Given our disposition of this matter, it is unnecessary to address the other issues raised by
Rudolph. The judgment entered by the district court is affirmed.
__________
distribution of the community property of the parties? Although appellant did contend, briefly, that NRS
123.220 requires a written agreement between husband and wife to alter the character of community property, he
did so without citation of authority other than the referenced statute and otherwise with so little emphasis that
respondent did not even address the subject in her answering brief. Nevertheless, the author of the concurring
opinion suggests that this court's opinions in Schreiber v. Schreiber, 99 Nev. 453, 663 P.2d 1189 (1983), and
Verheyden v. Verheyden, 104 Nev. 342, 757 P.2d 1328 (1988), contained erroneous, gratuitous footnotes on the
subject. Apparently concluding that his prior endorsements of Schreiber and Verheyden were ill advised, the
author of the concurring opinion now believes we should finally pronounce judgment that will clarify past
confusion. Based upon the record before us, we choose to forego addressing a point not raised as a formal issue
on appeal, not briefed at all by respondent, not meaningfully briefed by appellant, and not at all essential to our
decision on appeal. Moreover, in the context of such poor illumination, we are unwilling to so readily conclude
that this court's expressions in Schreiber and Verheyden are in need of clarification.
Springer, J., with whom Rose, J., agrees, concurring in the judgment:
The issue in this case is whether NRS 123.220 requires a writing in order for married
parties to transmute community property to separate property. Although we have intimated
(see Schreiber and Verheyden, below) that a writing is required, it is not; and we should take
this opportunity to say so.
In past cases we have enforced oral transmutation of community property on collateral
groundsestoppel and part performance. See Schreiber v. Schreiber, 99 Nev. 453, 663 P.2d
1189 (1983). In Schreiber, the parties orally agreed to divide the community property and go
their own ways. Pursuant to this agreement, the family residence was sold and the proceeds
divided equally. Respondent received most of the family assets of a masonry contracting
business owned by the community. Id. at 545, 663 P.2d at 1189-90. In Schreiber, we held
that no written evidence was needed under the circumstances of that case because the parties
had already performed the agreement. See also Verheyden v. Verheyden, 104 Nev. 342, 346
n.4, 757 P.2d 1328, 1331 n.4 (1988) (holding same). We did not hold in Schreiber, nor has
this court held at any time, that NRS 123.220 requires that community property division or
transmutation requires a writing. Nevertheless, in both Schreiber and Verheyden, we did
state (unnecessarily) that such a writing was required by NRS 123.220(1).
1
For this reason,
our case law is in need of clarification.
NRS 123.220, Community Property Defined, merely, as put in its headnote, defines
community property; it does not relate to division of community property or to the so-called
transmutation of community property into some other species of property. NRS 123.220
defines community property as all property that parties acquire after marriage except property
that they have agreed in writing should not be community property; it goes no further than
this. In other words, once property becomes community property by virtue of NRS 123.220
(by being acquired after marriage by a husband and wife who have not agreed in writing that
the property should not be community property), the method of future transfer is not restricted
by statute.
Rather than deciding this case on the somewhat amorphous, collateral ground of estoppel,
I would clarify past confusion and hold directly that the oral agreement was enforceable
because no writing or other formality is required by our statute, NRS 123.220{1).
__________

1
In Schreiber, misleading dicta appears in the form of a footnote giving apparent approval to a party's
incorrect concession that NRS 123.220 requires that there be an agreement in writing between spouses in order
to transmute community property into separate property. In Verheyden, we repeated this mistake with a
footnote that contained language similar to the footnote in Schreiber. In each case, the footnotes were purely
gratuitous; the issue had neither been briefed or presented to the court for decision.
hold directly that the oral agreement was enforceable because no writing or other formality is
required by our statute, NRS 123.220(1). Deciding in the manner that I propose would be
consistent with the way in which the subject has been treated by the California courts, which
refused to impose judicially any kind of formalities on agreements dividing or transmuting
community property. Woods v. Security First National Bank, 299 P.2d 657 (Cal. 1956). This
ruling was invalidated by a recent enactment of the California legislature, however, and now
transmutation agreements are, by statute, effective only if made in writing. Cal. Civ. Code
5110.730 (West Supp. 1990).
2
The important principle to be gleaned from the California
experience is that the task of creating requirements that depart from prevailing common-law
norms is one better left to the legislature. If this state is to follow California's lead in treating
the subject legislatively, it is likely to do so only after this court has ruled squarely on the
subject.
____________
107 Nev. 574, 574 (1991) Sierra Foods v. Williams
SIERRA FOODS, GARY RICHARD DAVIS and ROBERT PARKER, Appellants, v. JANE
A WILLIAMS, Individually and as Heir of JAMES E. MILLER, WALTER E.
MILLER, Individually and as Heir of JAMES E. MILLER, Respondents.
No. 21229
August 28, 1991 816 P.2d 466
Appeal from a jury verdict in a wrongful death and survival action. Second Judicial
District Court, Washoe County; Peter I. Breen, Judge.
Van drivers appealed from judgment of the district court in wrongful death and survival
action brought by pedestrian's parents in their individual capacities and on behalf of
pedestrian's estate after pedestrian was mortally injured when struck by vans. The supreme
court held that: (1) court would adopt exception to general rule that jury cannot be
reconvened after discharge, applicable when jury has not yet dispersed or lost its separate
identity and when moving party has presented no proof of outside influence; (2) verdict for
estate's special damages was unsupported by substantial evidence; and (3) court would reduce
award of past damages to estate by percentage equal to pedestrian's contributory negligence.
__________

2
A transmutation of real or personal property is not valid unless made in writing by an express declaration
that is made, joined in, consented to, or accepted by the spouse whose interest is adversely affected.
Vargas & Bartlett, and Nicholas F. Frey, Reno, for Appellants.
Robison, Belaustegui, Robb & Sharp, Reno, for Respondents.
1. Trial.
Court had jurisdiction to reconvene and re-empanel already-dismissed jury where jury had not left courthouse and remained under
de facto control of court, and no evidence was produced that jury was subjected to outside influences from time of initial discharge.
2. Trial.
Supreme court would adopt exception to general rule that jury cannot be reconvened after discharge, applicable when jury has not
yet dispersed or lost its separate identity and when moving party has presented no proof of outside influence.
3. Damages.
Verdict awarding gross sum of $55,698.33 for special damages suffered by pedestrian's estate as result of automobile accident in
which pedestrian was mortally injured was unsupported by substantial evidence; evidence of special damages at trial consisted solely
of pedestrian's medical bills, totaling $47,343.58, and funeral expenses, totaling $2,767.13, for maximum possible gross award of
$50,110.71.
OPINION
Per Curiam:
On May 11, 1988, appellants Gary Davis and Robert Parker, partners in Sierra Foods,
drove two step vans owned by Sierra Foods on Oddie Boulevard in Sparks. Davis drove the
first van and towed the second van which was operated by Parker. At the intersection of
Sullivan Lane and Oddie Boulevard, the vans struck and mortally injured the decedent, James
Miller.
Respondents Jane Williams and Walter Miller, the decedent's parents, sought damages in
their individual capacities in a wrongful death action and on behalf of the decedent's estate in
a survival action. After a seven-day trial, a jury awarded respondents a total of $687,343.58.
This sum, however, failed to account for the jury's finding of fifteen percent contributory
negligence on the part of the decedent. The error was discovered after the jury had been
excused. The judge then recalled the jury and asked it to clarify the amount. The jury stated
that it had already deducted the fifteen percent contributory negligence and that the
$687,343.58 figure represented the net award. The verdict then was corrected to conform with
the jury's explanation of its intent. The total amount awarded in gross damages to
respondents, without a reduction for the decedent's contributory negligence, was $808,639.50.
On appeal, appellants contend that the verdict is fatally defective. Appellants further
challenge several rulings made by the district court concerning juror misconduct and the
admissibility of evidence.
of evidence. All of appellants' contentions lack merit save for the challenge to the award of
$47,343.58 to the decedent's estate, which is unsupported by substantial evidence. We
therefore reduce the award by fifteen percent in order to conform the judgment to the
evidence adduced at trial.
[Headnotes 1, 2]
Appellant contends that the jury verdict is fatally flawed because the court lacked
jurisdiction to reconvene the already-dismissed jury. We conclude that the court had
jurisdiction to reconvene and re-empanel the jury.
This is a question of first impression in Nevada. Although the general rule in many
jurisdictions is that a trial court is without authority or jurisdiction to reconvene a jury once it
has been dismissed, we elect to adopt a well-reasoned exception to the general rule. See, e.g.,
Newport Fisherman's Supply v. Derecktor, 569 A.2d 1051 (R.I. 1990); Masters v. State, 344
So.2d 616 (Fla.Dist.Ct.App. 1977). The exception in Derecktor applies when the jury has not
yet dispersed and where there is no evidence that the jury has been subjected to outside
influences from the time of initial discharge to the time of re-empanelment. Derecktor, 569
A.2d at 1053. The Masters court found that the general rule that a jury cannot be reconvened
after discharge is inapplicable where the jury has not been influenced or lost its separate
identity. Masters, 344 So.2d at 620-21.
In the instant case, the jury had not left the courthouse and remained under the de facto
control of the court. Further, appellants produced no evidence that the jury was subjected to
outside influences from the time of initial discharge. The facts of the instant case thus satisfy
the standard developed in Derecktor and Masters: the exception to the general rule applies
when the jury has not yet dispersed or lost its separate identity and when the moving party has
presented no proof of outside influence. We conclude that the district court never lost
jurisdiction over the jury.
[Headnote 3]
Appellants also contend that the second and final verdict is defective because it found
that the net sum owed to the Estate of James Miller is $47,343.58, or a gross sum of
$55,698.33 (contributory negligence on the part of decedent in the amount of fifteen percent
plus the net sum). Appellants argue that the award exceeds the evidence presented by
respondents at trial of special damages which consisted solely of decedent's medical bills,
totaling $47,343.58, and funeral expenses, totalling $2,767.13. Thus, appellants contend, the
maximum gross sum the estate could recover is $50,110.71.
It is apparent that the only evidence of special damages the jury was entitled to consider
were the medical bills and the funeral expenses. Appellants are correct in their assertion that
the verdict is unsupported by substantial evidence because the gross amount awarded,
$55,698.33, exceeded the maximum possible gross award of $50,110.71 We elect to reduce
the award of past damages to the estate by fifteen percent to total $40,242.04. See Mort
Wallin v. Commercial Cabinet, 105 Nev. 855, 784 P.2d 954 (1989) (court may vacate an
award of damages when an absence of any competent evidence supported the award);
Republic Insurance Co. v. Hires. 107 Nev. 317, 810 P.2d 790 (1991) (court has power to
reduce award of punitive damages).
We have carefully considered appellants' remaining contentions and determine they are
without merit. Accordingly, we affirm the judgment in favor of respondents but reduce the
award of past damages to the estate by $7,101.54 to total $40,242.04 in order to conform the
judgment with the evidence adduced at trial.
____________
107 Nev. 577, 577 (1991) Hand v. State
JAMES A. HAND, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21215
August 28, 1991 816 P.2d 468
Appeal from judgment of conviction, pursuant to jury verdict, two counts of being an
ex-felon in possession of a firearm, and one count of possession with intent to sell a
controlled substance. Sixth Judicial District Court, Pershing County; Llewellyn A. Young,
Judge.
Defendant was convicted of being ex-felon in possession of firearm and possession of
controlled substance with intent to sell after jury trial in the district court. Defendant
appealed. The supreme court, Blake, District Judge, held that: (1) evidence was sufficient to
support defendant's conviction for possession of methamphetamine with intent to sell; (2)
honorable discharge from probation for felony did not preclude conviction being considered
as predicate for ex-felon in possession of firearm conviction; and (3) evidence was sufficient
to support defendant's conviction for being ex-felon in possession of firearm.
Affirmed.
Rose and Springer, JJ., dissented in part.
Carter King, Reno, for Appellant.
107 Nev. 577, 578 (1991) Hand v. State
Frankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District Attorney,
and Bradley M. Bittan, Deputy District Attorney, Pershing County, for Respondent.
1. Criminal Law; Drugs and Narcotics.
Evidence that search of defendant's home in which he resided alone produced methamphetamine packaged in usual form for sale
and cut with unique substance which defendant admitted purchasing was sufficient to sustain defendant's conviction of possession of
methamphetamine with intent to sell.
2. Weapons.
Felony conviction for which defendant had been honorably discharged from probation in 1963 could be used as predicate for his
ex-felon in possession of firearm convictions, where right to possess firearms had not been specifically restored according to law. NRS
176.225, 202.360, NRS 176.340 (Repealed).
3. Constitutional Law; Weapons.
Amendment to statute governing offense of possession of weapon by ex-felon which expanded offense from possession of
concealable firearm to possession of any firearm did not constitute ex post facto law with respect to ex-felon's conviction for
possessing long guns, even though predicate felony conviction occurred prior to amendment, where ex-felon's possession of long guns
occurred after statute was amended and violated law which was already in effect. NRS 202.360; U.S.C.A.Const. art. 1, 9, cl. 3, 10,
cl. 1.
4. Weapons.
Evidence was sufficient to support defendant's conviction for willful violation of statute prohibiting possession of weapon by
ex-felon. NRS 202.360.
OPINION
By the Court, Blake, D. J.:
1

Appellant James A. Hand was convicted, upon jury verdict, of two counts of being an
ex-felon in possession of a firearm and one count of possession of a controlled substance with
intent to sell. Hand received consecutive one-year sentences on the firearm convictions and a
consecutive three-year sentence on the crime of possession with intent to sell. Hand raises
various issues concerning the three convictions, claiming that trial court error was prejudicial
and therefore a mandatory basis for reversal. We disagree and affirm.
Facts
Armed with warrants for the arrest of appellant, and a search of his residence, Pershing
County Deputy Sheriff Zuwala proceeded on a gravel road in the direction of Hand's home.
__________

1
The Honorable Archie E. Blake, Judge of the Third Judicial District, was designated by the Governor to sit
in the place of The Honorable Cliff Young, Justice. Nev. Const., art. 6, 4.
107 Nev. 577, 579 (1991) Hand v. State
of his residence, Pershing County Deputy Sheriff Zuwala proceeded on a gravel road in the
direction of Hand's home. Shortly before arriving at the residence, the deputy saw Hand
driving toward him from the opposite direction. Ignoring Deputy Zuwala's instruction to pull
over, Hand accelerated down the gravel road with law enforcement vehicles pursuing him at
approximately 65 miles per hour. At all times during the chase the pursuing deputies had
lights flashing and sirens in operation. As the pursuit continued, Deputy Paige saw Hand
throw a blue bag out of the pickup. Upon retrieving the bag, five loaded handguns were
discovered inside. After Hand finally stopped, the search warrant was served, and a
subsequent search of his residence produced a .22 rifle, 30.06 rifle and a shotgun. The
searching deputies also found a number of small plastic bags containing methamphetamine.
Discussion
[Headnote 1]
Hand contends on appeal that the jury verdict convicting him of possession of
methamphetamine with the intent to sell was unsupported by the facts. He argues that the
State presented no evidence that he sold methamphetamine to a government agent or anyone
else. Also, under the apparent misapprehension that mitigating evidence produced at
sentencing somehow vitiates a trial conviction, Hand emphasizes that he called some fifteen
character witnesses from the town of Imlay, all of whom testified that he had not sold or tried
to sell them drugs. This court will not disturb a jury finding when such finding is supported
by substantial evidence. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).
Hand was residing alone and a lawfully conducted search produced various packets of
methamphetamine packaged in the usual form for sale. The packages, or bundles, were in
saleable quantities and the methamphetamine was cut with a unique substance of the same
kind that Hand, in the course of his testimony, admitted purchasing. We conclude that there
was substantial evidence to support the jury's verdict finding Hand guilty of possession of
methamphetamine with the intent to sell.
Hand's primary contentions revolve around his convictions for violating NRS 202.360,
being an ex-felon in possession of a firearm. We deem it necessary to address only a few of
the numerous issues raised by Hand on this aspect of his appeal, the others being patently
without merit.
[Headnote 2]
In 1962, Hand pled guilty to a felony in Washoe County district court and was placed on
probation for one year. At the time of entering his guilty plea and at the time of sentencing,
Hand was represented by counsel.
107 Nev. 577, 580 (1991) Hand v. State
time of entering his guilty plea and at the time of sentencing, Hand was represented by
counsel. Hand was honorably discharged from probation in 1963, and the pertinent part of his
discharge read:
IT IS THEREFORE ORDERED that the said probationer's plea of guilty be changed to
that of not guilty, and the information herein dismissed.
IT IS FURTHER ORDERED that said probationer be, and is hereby discharged from
supervision and from any obligation respecting the condition of said probation
heretofore imposed by this court in accordance with the statute in such cases made and
provided.
Hand's principle argument is that he was not convicted of a felony under NRS 202.360,
because the 1963 order effectually withdrew his guilty plea and dismissed the charges against
him, thus mandating that his conviction be expunged. Consequently, Hand contends that the
above 1963 order restored his right to bear arms.
Hand cites Bearden v. City of Boulder City, 89 Nev. 106, 507 P.2d 1034 (1973), as
authority for the proposition that his expunged conviction cannot be used as a predicate for
his ex-felon in possession of a firearm conviction. Hand is wrong. Bearden is not only
distinguishable on the facts, the holding is not based on an expunging principle. Moreover,
Hand's 1962 conviction was not expunged.
The issue of whether an honorable discharge from probation effectively preludes a
conviction under NRS 202.360 is one of first impression. Since Hand's previous conviction
occurred in 1962, it is necessary to examine the applicable probation discharge statutes then
in effect with the relevant statute in effect at the time of the present conviction.
NRS 176.340, which was repealed in 1967, was the operative statute concerning the
fulfillment of probationary conditions at the time of Hand's prior felony conviction in 1962.
In pertinent part, the statute then read:
176.340 When conditions of probation fulfilled, defendant may withdraw guilty
plea and enter plea of not guilty; court may set guilty verdict aside; dismissal of
indictment or information.
1. Every defendant who has fulfilled the conditions of his probation for the entire
period thereof . . . may at any time thereafter be permitted by the court to withdraw his
plea of guilty and enter a plea of not guilty . . . the court shall thereupon dismiss the
indictment or information against such defendant, who shall thereafter be released from
all penalties and disabilities resulting from the offense or crime of which he has
been convicted.
107 Nev. 577, 581 (1991) Hand v. State
from all penalties and disabilities resulting from the offense or crime of which he has
been convicted.
. . . .
3. [I]n any subsequent prosecution of the defendant for any other offense, such prior
conviction may be pleaded and proved and shall have the same effect as if probation
had not been granted or the indictment or information had not been dismissed.
Hand's contention is that the above statute, in conjunction with the discharge of probation
order, effectively immunized him from liability under NRS 202.360. In so arguing, Hand fails
to adequately consider the language in subsection 3 of the statute, which, as we shall hereafter
discuss, is dispositive of the issue.
The statute which replaced NRS 176.340 in 1967, NRS 176.225, reads in pertinent part as
follows:
176.225 Honorable discharge from probation; application to restore civil rights;
prior conviction may be used for impeachment.
1. Every defendant who:
(a) Has fulfilled the conditions of his probation for the entire period thereof, . . . may
be granted an honorable discharge from probation by order of the court.
. . . .
3. A person honorably discharged from probation is free from the terms and
conditions of his probation and may apply to the court, in person or by attorney,
pursuant to NRS 176.227, for the restoration of his civil rights. He must be informed of
this privilege in his probation papers.
4. A person honorably discharged from probation who has had his civil rights
restored by the court:
(a) Is exempt from the requirements of NRS 207.090, but is not exempt from the
requirements of NRS 207.152.
(b) May vote, hold office or serve as a juror.
. . . .
5. The prior conviction of a person whose civil rights have been restored or who has
been honorably discharged from probation may be used for purposes of impeachment.
In any subsequent prosecution of the person who has had his civil rights restored or
who has been honorably discharged from probation, the prior conviction may be
pleaded and proved if otherwise admissible.
Although NRS 176.340 and NRS 176.225 are dissimilar in certain respects, they are
consistent concerning the future use of a conviction where the defendant has been honorably
discharged from probation. Both statutes allow such convictions to be used in subsequent
prosecutions.
107 Nev. 577, 582 (1991) Hand v. State
subsequent prosecutions. We hold that such subsequent prosecutions include a violation of
NRS 202.360 unless the right to possess firearms has been specifically restored according to
law. In this case, Hand's right to possess firearms had not been restored.
[Headnote 3]
Next, Hand argues that his conviction for possessing the long guns found in his residence
should be reversed on the basis that NRS 202.360 was changed in pertinent part from
possession of a concealable firearm to possession of any firearm. However, the referenced
change took place after Hand's 1962 conviction. The language was changed and in force with
respect to the possession of any firearm prior to Hand's commission of the instant offense.
The enactment or amendment of a statute imposing a harsher penalty after a prior conviction
is not an ex post facto law. Weh Him Fong v. United States, 287 F.2d 525 (9th Cir. 1961).
Since Hand possessed the long guns after NRS 202.360 was amended in 1985, he violated the
law that was already in effect.
[Headnote 4]
Finally, Hand contends, and so testified at trial, that he did not willfully violate NRS
202.360. The jury heard his testimony, evaluated the evidence presented and determined that
Hand was guilty. Hand's protestations of innocence were belied by his registration as an
ex-felon in Sparks in 1973 and his attempt to elude pursuing deputies while throwing
numerous firearms from his vehicle window. There was substantial evidence upon which the
jury could base its conclusion that Hand was guilty as charged, and where, as here, substantial
evidence exists in support of a jury's verdict, this court will not disturb it despite the existence
of conflicting evidence. Bolden, 97 Nev. at 73, 624 P.2d at 20.
We have reviewed the other issues and arguments presented by Hand and conclude that
they are without merit. Accordingly, we affirm the judgment entered by the district court.
Rose, J., with whom Springer, J., agrees, concurring and dissenting:
In 1963, more than two decades ago, James Hand completed a one-year probationary
period assessed against him for a felony conviction. The district court ordered that Hand's
guilty plea be changed to not guilty, and it dismissed the information. At the time, the law
indicated that when the court dismisses the indictment or information against a defendant,
the defendant is thereafter released from all penalties and disabilities resulting from the
offense or crime of which he has been convicted."
107 Nev. 577, 583 (1991) Hand v. State
after released from all penalties and disabilities resulting from the offense or crime of which
he has been convicted. NRS 176.340(1) (repealed in 1967) (emphasis added). The majority
correctly states that both the present statute (NRS 176.225) and the former statute (NRS
176.340) allow such prior convictions to be used in subsequent prosecutions. However, the
majority incorrectly asserts that such subsequent prosecutions include a violation of NRS
202.360 unless the right to possess firearms has been specifically restored according to law.
NRS 202.360 provides that a person who has been convicted of a felony may not own,
possess or have custody or control of any firearm, unless he has received a pardon and his
right to bear arms specifically has been restored. However, NRS 202.360 and NRS 176.340
are inconsistent. The majority ignores the fact that the statutory scheme in effect when Hand
was convicted in 1962 is notably different from the statutory scheme today. In 1962, pursuant
to NRS 176.340(1), the law did not place upon the defendant the affirmative burden of
applying for the restoration of his civil rights. To the contrary, NRS 176.340(1) simply stated
that the defendant is released from all penalties and disabilities resulting from the crime. The
current version of the statute, NRS 176.225(3), does indeed now place an affirmative burden
upon the defendant to apply for the restoration of his civil rights.
I am at a loss to comprehend the majority's reliance upon a comparison of NRS 176.340(3)
to NRS 176.225(5) in support of its contention that NRS 176.340 does not release Hand from
all penalties and disabilities, including status as an ex-felon. The above-mentioned sections
appertain to the use of prior convictions for such purposes as impeachment in a subsequent
trial and penalty enhancement. These sections are not of consequence in determining whether
Hand's civil rights were restored.
I believe NRS 176.340 clearly and unambiguously provided that Hand is released from all
penalties and disabilities resulting from his felony conviction, and therefore, he is no longer
an ex-felon for purposes of Nevada law. The majority opinion interprets NRS 176.340
differently. This is a persuasive indication that the statute is ambiguous. See McKay v. Bd. of
Supervisors, 102 Nev. 644, 730 P.2d 438 (1986). Because penal statutes should be construed
in favor of the accused, Demosthenes v. Williams, 97 Nev. 611, 614, 637 P.2d 1203, 1204
(1981), NRS 176.340, should be interpreted to mean that release from all penalties and
disabilities includes the penalty that an ex-felon is not permitted to possess firearms.
Accordingly, I respectfully dissent.
I concur as to the one count of possession with intent to sell a controlled substance.
____________
107 Nev. 584, 584 (1991) Childs v. State
TIMOTHY JOHN CHILDS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21373
September 6, 1991 816 P.2d 1079
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of cheating
at gambling and one count of burglary. Second Judicial District Court, Washoe County; Roy
L. Torvinen, Judge.
Defendant was convicted in the district court of cheating at gambling, and he appealed.
The supreme court, Young, J., held that cheating statute was unconstitutionally vague.
Reversed.
David Parraguirre, Public Defender, Karen Grifall, Deputy Public Defender, and Jane G.
McKenna, Deputy Public Defender, Washoe County for Appellant.
Attorney and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
Statutes are presumed to be valid, and burden is on challenger to make clear showing of their unconstitutionality.
2. Gaming.
Statute forbidding manipulation of slot machine handle with the intent to cheat was unconstitutionally vague, handle
manipulation did not damage machine, and thus did not meet statutory definition of cheating, and statute failed to define normal
method of pulling slot machine handle. U.S.C.A.Const. amend. 1; NRS 465.015, 465.070, subd. 7.
OPINION
This is an appeal from a judgement of conviction, pursuant to a jury verdict, of one count
of cheating at gambling and one count of burglary. Appellant's convictions stem from his
activities in John Ascuaga's Nugget in Sparks, Nevada, on December 10, 1989. Karen M.
Fleiner, an operations manager for the casino, testified at trial that she observed appellant
through a monitor as he played a slot machine. Fleiner saw appellant jerk on the handle of the
slot machine in such a way that one of the three reels would stop spinning prematurely.
stop spinning prematurely. As soon as she observed this handle popping, Fleiner called the
Gaming Control Board.
Agent Robert Johnson arrived at the casino in response to Fleiner's call. Agent Johnson
watched appellant directly for approximately five minutes and did not see any use of the slot
machine which Agent Johnson considered illegal. Agent Johnson then observed appellant
through the monitor and saw appellant freeze the reels several times.
The jury found appellant guilty of one count of cheating at gambling and one count of
burglary. NRS 465.070(7), 205.060. The district court sentenced appellant to serve two
concurrent terms of six years in the Nevada State Prison. On appeal, appellant contends that
NRS 465.070(7) is unconstitutionally vague and therefore asks this court to reverse his
convictions.
In 1989, this court addressed the issue of whether NRS 465.015 was unconstitutionally
vague as applied to handle popping.
1
Lyons v. State, 105 Nev. 317, 775 P.2d 219 (1989).
This court set forth the standard to be applied as follows:
As previously noted in Harriss [United States v. Harriss, 347 U.S. 612 (1954)],
persons are deemed to have been given fair notice of a criminal offense if the statutorily
proscribed conduct has been described with sufficient clarity to be understood by
individuals of ordinary intelligence. 347 U.S. at 617. See also United States v. Hogue,
752 F.2d 1503, 1504 (9th Cir. 1985). And statutes challenged for vagueness are
evaluated on an as-applied basis where, as here, first amendment interests are not
implicated. Maynard v. Cartwright, 108 S.Ct. 1853, 1858 (1988).
Lyons 105 Nev. at 320, 775 P.2d at 221.
Applying this standard to NRS 465.015, this court first determined that the statute was
intended to prevent knowing, purposeful, unlawful conduct designed to alter the criteria that
determines the outcome of any lawful gambling activity. Lyons, 105 Nev. at 321, 775 P.2d at
221. As an example of this type of activity, we mentioned card crimping, which we had
previously held to be prohibited by NRS 465.015. See Sheriff v. Martin, 99 Nev. 336, 662
P.2d 634 (1983). We stated that card crimping, like the use of special tools or devices,
constituted cheating because it alters both the nature of the game and the criteria for
winning. Lyons, 105 Nev. at 321, 775 P.2d at 221.
__________

1
As used in this chapter:
1. Cheat means to alter the selection of criteria which determine:
(a) The result of a game; or
(b) The amount of frequency of payment in a game.
In contrast to these activities, we discussed card counting and taking advantage of a
dealer's unintentional revelation of his cards. Concluding that neither act violated NRS
465.015, we stated:
In both cases, the players simply exploit what their skills and the play of the game will
afford them. And yet, they are altering the usual criteria, i.e., the characteristic complex
or standard of play that determines the frequency of payment.
Id. Noting that handle popping neither damages nor mechanically alters a slot machine, this
court emphasized that an innocent novice could stumble across the technique and use it just
as effectively as a professional. Id. Analogizing the slot machine manipulator to a person who
takes advantage of a dealer's unintentional revelation of his cards, we concluded that slot
machine handle manipulators simply take advantage of what the slot machines give them.
Handle manipulation, we concluded, does not alter the physical characteristics and potential
pay offs of slot machines. Lyons, 105 Nev. at 322, 775 P.2d at 222.
Next, we discussed the element of intent, reviewing our previous comments on the subject
in Sheriff v. Martin, 99 Nev. 336, 662 P.2d 634 (1983), in which we recognized fraudulent
intent as an element of cheating under NRS 465.015. Continuing our discussion of Sheriff v.
Martin, we stated:
Moreover, we also observed that the attributes of the gameits established physical
characteristics and basic rulesdetermine the probabilities of the game's various
possible outcomes. Changing those attributes to affect those probabilities is a criminal
act. [99 Nev. at 341]; 662 P.2d at 638. Games in the form of slot machines have
established physical characteristics that are not altered by handle popping.
Furthermore, we are unaware of any rules, written or otherwise, directing slot machine
patrons to pull the handles in a specific manner. Certain gaming sophisticatessuch as
Lyonswould undoubtedly manipulate handles with a form of scienter because of their
awareness that the procedure forms a basis for criminal prosecution in Nevada. Others .
. . who stumble across a more favorable method of play, will handle pop without an
intent to cheat or defraud. It is clear however, that crime categories do not materialize
or disappear on an ad hoc basis because of the presence or absence of scienter. Public
offenses are defined by statute, ordinance or the common law. See NRS 193.050.
Lyons, 105 Nev. at 322, 775 P.2d at 222 (emphasis added).
In apparent response to our decision in Lyons, the legislature amended NRS 465.070 to
add subsection 7.2 NRS 465.070 provides in pertinent part:
amended NRS 465.070 to add subsection 7.
2
It is unlawful for any person:
. . . .
7. To manipulate, with the intent to cheat, any component of a gaming device in a
manner contrary to the designed and normal operational purpose for the component,
including, but not limited to, varying the pull of the handle of a slot machine, with
knowledge that the manipulation affects the outcome of the game or with knowledge of
any event that affects the outcome of the game.
Appellant contends that NRS 465.070(7) is unconstitutionally vague under both a notice
and an arbitrary enforcement analysis. See Grayned v. City of Rockford, 408 U.S. 104,
108-109 (1972) (a law is vague if it fails to give fair notice of the conduct proscribed or fails
to provide explicit standards for those who enforce it, thereby allowing arbitrary and
discriminatory enforcement). Quoting this court's directive in Lyons, appellant claims
specifically that NRS 465.070(7) does not describe the prohibited acts in clearly expressed,
specific terms, and notes that there is still no Nevada statute or regulation defining a
normal pull of a slot machine handle.
[Headnote 1]
Statutes are presumed to be valid, and the burden is on the challenger to make a clear
showing of their unconstitutionality. Sheriff v. Martin, 99 Nev. 336, 662 P.2d 634 (1983).
[Headnote 2]
The concerns we expressed in Lyons have not been resolved by the creation of NRS
465.070(7). First, while NRS 465.070(7) forbids manipulat[ion] with the intent to cheat,
cheating is still defined by NRS 465.015. We held in Lyons, however, that handle
manipulation does not alter the physical characteristics and potential pay offs of slot
machines, and therefore does not constitute cheating under NRS 465.015. Lyons, 105 Nev.
at 322, 775 P.2d at 222. Thus appellant, in pulling the slot machine handle in way that did not
damage the machine, could not have cheated.
Next, although NRS 465.070(7) prohibits varying the pull of a slot machine handle, it
does not provide a definition of a normal pull from which a player must not vary. The
statute therefore left appellant to guess at the lawful method of pulling a slot machine handle.
See Harriss, 347 U.S. at 617. The vagueness of the statute was not cured by the fact that
when appellant pulled the handle on the slot machine, he intended to do as well as he
could.
__________

2
The decision in Lyons was filed June 1, 1989. The bill creating the amendment to NRS 465.070 was enacted
June 28, 1989.
ness of the statute was not cured by the fact that when appellant pulled the handle on the slot
machine, he intended to do as well as he could. Obviously, such an intention would be shared
by any player, whether professional or novice. As we explained in Lyons, the existence of
such an intent is not criminal. Indeed, any discussion of intent is meaningless without a
statutory definition of the proscribed conduct. Here, because the proscribed conduct was
defined only as varying from an undefined norm, no such statutory definition existed. As we
stated in Lyons:
If the State and the gaming industry desire to make handle popping or handle
manipulation of slot machines a crime in Nevada, it will be necessary to do so in clearly
expressed, specific statutory terms. Moreover, given the fact the innocent,
well-intentioned patrons may so easily adopt various methods of handle manipulation
in an attempt to change their fortune, it will be necessary to provide conspicuous
notices on or about the machines to inform patrons which methods of handle pulling are
lawful and which methods are felonious.
Lyons, 105 Nev. at 323, 775 P.2d at 223.
Accordingly, we reverse appellant's judgment of conviction.
Mowbray, C. J., Steffen, J., and Bonaventure, D. J., concur.
3

The statute under which Childs stands convicted declares it to be unlawful to manipulate,
with the intent to cheat, any component of a gaming device in a manner contrary to the
designed or normal operational purpose . . . . There is ample evidence to convict Childs of a
cheating manipulation of a slot machine.
Childs was observed, as put in the majority opinion, to jerk the handle of the slot machine
in such a way that one of the three reels would stop spinning prematurely. This activity
would, as I see it, be to manipulate a component (one of the three reels) in a manner
contrary to the reel's designed and normal purpose. If a jerk or other violent manipulation
of a slot machine handle can cause one reel to stop prematurely, that is to say, before the
proper or usual time (Webster's Ninth New Collegiate Dictionary 928 (1985)), then I think
the jerker is cheating. This kind of activity is not an exercise in skill, to borrow a word
employed in Lyons but, rather, a conscious effort to disrupt the proper or usual operation of
the machine. The design of a slot machine contemplates unobstructed, random, serial
rotation of three reels.
__________

3
The Honorable Joseph T. Bonaventure, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Robert E. Rose, Justice. Nev. Const. art. 6 4.
slot machine contemplates unobstructed, random, serial rotation of three reels. When a person
interferes with the machine's operational purpose by pushing, striking, jerking or other
untoward physical insult to the machine which interferes with the machine's normal
operation, I consider this to be a manipulation which, when accompanied by a fraudulent
intent, constitutes a crime under NRS Chapter 465. I do not like to declare statutes to be
unconstitutional. I would uphold the conviction.
____________
107 Nev. 589, 589 (1991) Lytle v. State
JOHN PAUL LYTLE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21404
September 6, 1991 816 P.2d 1082
Appeal from judgment of conviction, pursuant to jury trial, of one count of open or gross
lewdness (gross misdemeanor) and one count of lewdness with a minor (felony). Eighth
Judicial District Court, Clark County; Jack Lehman, Judge.
Defendant was convicted of open and gross lewdness and lewdness with a minor following
a jury trial in the district court and he appealed. The supreme court held that introduction of
hearsay statements made by five-year-old victim of offenses involving sexual conduct
without a judicial hearing as to trustworthiness of statements outside the presence of the jury,
as required by child sexual abuse victim testimony statute, was reversible error.
William B. Terry, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, John Lukens, Deputy District Attorney, Clark
1. Criminal Law.
Statute requiring hearing out of the presence of the jury to guarantee trustworthiness of hearsay statements made by child sexual
offense victim was mandatory, regardless of whether defendant objected to introduction of the hearsay. NRS 51.385, 51.385, subd. 1.
2. Criminal Law.
Introduction of hearsay statements made by child sexual offense victim without a judicial hearing as to trustworthiness of
statements outside the presence of the jury, as required by child sexual offense victim testimony statute, was
reversible error.
107 Nev. 589, 590 (1991) Lytle v. State
outside the presence of the jury, as required by child sexual offense victim testimony statute, was reversible error. NRS 51.385.
OPINION
Per Curiam:
John Lytle stands convicted of open and gross lewdness and lewdness with a minor, his
five-year-old stepdaughter. Lytle was charged with having engaged in self-stimulation in the
company of his stepdaughter.
Although the child did testify, numerous hearsay statements made by the child to her
mother, Lytle's ex-wife, and to certain police and juvenile agents were admitted at trial.
Appellant contends that the admission of the child-victim's hearsay statements at trial was
improper under NRS 51.385 and was violative of his rights under the confrontation clause of
the sixth amendment of the United States Constitution. Outside the jury's presence, prior to
evidence being presented, the prosecution indicated its intention to offer hearsay statements
of the victim. The prosecution stated that there was specific statutory authorization for
admission of the hearsay statements under NRS 51.385 and that if defense counsel did not
object, no hearing on the statements' trustworthiness need be held. Defense counsel did not
object to the admission of the hearsay statements largely because the statements had been
previously admitted in a custody proceeding in juvenile court. No finding with respect to
reliability or trustworthiness was made by the court, and five witnesses were allowed to
testify regarding hearsay statements made by the victim.
NRS 51.385 was adopted in 1985 and has yet to be interpreted by this court. The statute's
plain language requires that a hearing as to trustworthiness be held prior to admission of the
child's hearsay statements. NRS 51.385 reads in pertinent part as follows:
1. In addition to any other provision for admissibility made by statute or rule of
court, a statement made by a child under the age of 10 years describing any act of
sexual conduct performed with or on the child is admissible in a criminal proceeding
regarding that sexual conduct if the:
(a) Court finds, in a hearing out of the presence of the jury, that the time, content
and circumstances of the statement provide sufficient circumstantial guarantees of
trustworthiness; and
(b) Child either testifies at the proceeding or is unavailable or unable to testify.
(Emphasis added.)
107 Nev. 589, 591 (1991) Lytle v. State
[Headnote 1]
NRS 51.385 clearly requires a hearing for the purpose of determining the trustworthiness
of the offered hearsay statements prior to the statements being brought before the jury.
1
The
State contends that the hearing is required only if the defendant objects to the introduction of
the hearsay. This contention is simply not consistent with the clear language of NRS 51.385,
which allows hearsay statements only if the court finds, in a hearing out of the presence of
the jury sufficient guarantees of trustworthiness. The admission of the child-victim's hearsay
statements without a hearing to determine trustworthiness was not made in accordance with
the specific requirements of NRS 51.385.
[Headnote 2]
Whether the admission of the statements without some showing in a judicial hearing of
their trustworthiness was violative of appellant's confrontation clause rights as they were
recently interpreted in Idaho v. Wright,
------
U.S
------
, 110 S.Ct. 3139 (1990), need not be
addressed because the mandatory language of NRS 51.385 was not complied with by the
district court. We conclude that the district court's failure to follow the specific requirements
of NRS 51.385 alone justifies the reversal of appellant's convictions.
Appellant makes other contentions on appeal including a claim of ineffective assistance of
counsel. These contentions need not be addressed based upon our finding of reversible error
with respect to the requirements of NRS 51.385.
Based upon the lower court's failure to conduct a hearing under NRS 51.385 prior to the
admission of the hearsay testimony, we hereby reverse appellant's convictions and remand the
case to the district court for retrial in strict compliance with the language of NRS 51.385.
Steffen, J., with whom Mowbray, C. J., joins, dissenting:
Although there may be a proper basis for eventually granting a new trial to Lytle, I differ
with my brethren in the majority in three primary areas: (1) the admissibility of the hearsay;
(2) the interpretation of NRS 51.385; and (3) the result reached. I am therefore compelled to
dissent.
THE ADMISSIBILITY OF THE HEARSAY. Five witnesses provided hearsay statements
attributable to the child-victim. Defense counsel not only failed to object to any of the hearsay
testimony, he affirmatively stated before it was ever introduced that he would not object to
its admission.
_______________

1
Under the opening phrase of NRS 51.385(1), this hearing is required unless the hearsay is otherwise
admissible under a recognized exception to the hearsay rule. No such exception was mentioned by the trial
judge, and we conclude that the hearsay statements admitted in this case do not fit any recognized hearsay
exceptions.
107 Nev. 589, 592 (1991) Lytle v. State
that he would not object to its admission. In a hearing outside the presence of the jury, the
prosecutor declared his intention to introduce the hearsay evidence. Defense counsel,
according to the majority, did not object largely because the statements had been previously
admitted in a custody proceeding in juvenile court. Whether counsel was laboring under a
mistaken impression of the law in withholding his objection should be of no moment in our
decision. The point to be emphasized is that defense counsel in effect stipulated to the
admissibility of the hearsay and the trial court had no duty to overrule him on the point. Our
criminal justice system is of an adversary rather than inquisitorial nature, and the trial umpire
was under no obligation to withhold effect to defense counsel's determination.
Given the fact that the hearsay testimony was admitted with the concurrence of defense
counsel, it was rightfully considered as substantive evidence along with other appropriately
admitted evidence in the trial proceeding. See Spiller v. Atchison, 253 U.S. 117, 130-31
(1920) (hearsay evidence admitted without objection to be considered and given natural
probative effect as if it were in law admissible). See also Sherwood v. Sissa, 5 Nev. 349,
354-55 (1870) ([i]f evidence . . . hearsay in its character be admitted without objection, no
advantage can be taken of the fact afterwards, and the jury may, indeed should, accept it as if
it was admissible under the strictest rules of evidence). If the prosecutor had attempted,
during trial, to elicit hearsay testimony from a witness based upon a hearsay exception not
attributable to NRS 51.385, and defense counsel had affirmatively declared his lack of
objection, surely this court would not have concluded that the trial judge was nevertheless
required to convene a hearing and have defense counsel justify the lack of objection.
Generally, trials are not conducted in a manner requiring frequent interruption and validation
of counsels' decisions by the trial judge. In the context of criminal trials, if defense counsel
makes a strategic choice later subject to question, the remedy is post-conviction review by the
district court under an ineffective assistance of counsel analysis. I fail to see why the result
should be any different under the circumstances present here, where the district judge was
prepared to hear justification for the admission of the hearsay testimony and defense counsel
conceded its admissibility.
Moreover, we should not entertain this issue on appeal under the recognized exception that
permits review notwithstanding waiver where a defendant's constitutional right to a fair trial
is at risk. See Sipsas v. State, 102 Nev. 119, 716 P.2d 231 (1986). Here, we not only have
defense counsel's agreement to the admission of the hearsay testimony (as opposed to a mere
failure to object), but additionally, Lytle also had the opportunity to confront and
cross-examine the hearsay declarant.
107 Nev. 589, 593 (1991) Lytle v. State
confront and cross-examine the hearsay declarant. The child-victim actually testified at trial
and was subject to cross-examination concerning the accuracy of the admitted hearsay. Thus,
the most fundamental reason for excluding hearsaylack of an opportunity to test credibility
in the crucible of adversarial examinationwas not implicated in the instant case.
Moreover, as I shall attempt to illustrate hereafter, we are not in a position on this record to
conclude that the hearsay testimony should not have been admitted despite defense counsel's
considered determination not to object. I must therefore conclude that this court should
respect the established general rule that objections not made are waived, McCullough v.
State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983), especially where defense counsel
affirmatively agreed not to object and Lytle was not deprived of his right of confrontation.
THE INTERPRETATION OF NRS 51.385. The majority concludes that NRS 51.385
clearly requires a hearing for the purpose of determining the trustworthiness of the offered
hearsay statements prior to the statements being brought before the jury. I am unable to
agree with the quoted expression because I am uncertain as to its meaning and scope. I
therefore suggest that the majority is either too imprecise or wrong in its conclusion. The
quoted language in the majority opinion appears to disregard and therefore endanger the
expansive qualifying language of the statute that reads [i]n addition to any other provision
for admissibility made by statute or rule of court . . . . The majority's construction of the
statute thus may be read to constrict, rather than expand, hearsay exceptions involving
children. I suggest that the Legislature made clear its intent not to restrict statements
attributable to child-victims ten years of age or younger where they would have otherwise
been admissible under existing court rules or statutory provisions other than NRS 51.385. It
is speculative whether, by one sweep of the pen, the majority has disenfranchised children ten
years of age or younger from the benefit of other hearsay exceptions recognized by statute and
the decisions of this court. I do not believe such a result can be validated under legislative
intent or common sense, and therefore strongly disagree with the majority position if it means
that any hearsay exception cited by the State as justification for the admissibility hearsay
testimony must first be sanctified by a trustworthiness hearing outside the presence of the
jury.
1
See State v. Myatt, 697 P.2d S36 {Kan.
__________

1
After the completion of this dissent, the majority draft was changed to include footnote 1. I am relieved to
see that the majority does recognize that all other hearsay exceptions are available for use where applicable
without resort to the hearing specified under NRS 51.385(1)(a). However, I fail to see how the majority may
conclude, in the same footnote, that the hearsay
107 Nev. 589, 594 (1991) Lytle v. State
P.2d 836 (Kan. 1985) (statute with similar effect as NRS 51.385 held to be new, additional
exception to hearsay rule); State v. Slider, 688 P.2d 538 (Wash.App. 1984) (clear that other
hearsay exceptions apply in addition to the exception provided by statute similar to NRS
51.385.).
In brief, I do agree that a prosecutor seeks to introduce hearsay testimony of a child-victim
ten years of age or younger under the new hearsay exception created by NRS 51.385, a
trustworthiness hearing is mandated under subsection (1)(a) of the statute. And, although I
would not view a stipulation or concession of trustworthiness and admissibility by defense
counsel as an exception to the hearing requirement, I would accord it the same respect as any
other trial stipulation that eliminates the need to provide evidence concerning the matters
covered by the stipulation or agreement of counsel. Indeed, if the State had sought to
introduce hearsay testimony under NRS 51.075 (general exception based upon assurances of
accuracy), I must assume that the reliability hearing required under NRS 51.385(1)(a) would
not have been a requisite to the trial court's ruling on admissibility. A fortiori, no hearing
should have been required under NRS 51.385 (1)(a) when defense counsel affirmatively
agreed not to object to admissibility. Both NRS 51.075 and NRS 51.385 deal with hearsay
exceptions based upon assurances of trustworthiness.
THE RESULT. At the outset of this dissent, I suggested that Lytle eventually may be
entitled to a new trial. The majority has accorded him that right prematurely based upon
either what may be read to be a flawed interpretation of NRS 51.385 or a mistaken view of
the trial court's duty in the face of a deliberate waiver by defense counsel, as suggested in the
preceding points. Moreover, as previously noted, the child-victim was present, testified, and
was cross-examined at trial, thereby satisfying constitutional concerns based upon a
defendant's right of confrontation.
Although the prosecutor apparently cited NRS 51.385 as the basis for introducing the
child-victim's hearsay statements, that statute, as previously mentioned, also reaffirms the
allowance of such statements under other exceptions provided by rule or statute.
_____________
statements admitted in this case do not fit any recognized hearsay exceptions. Both NRS 51.385 and the
recognized exception, NRS 51.075, require assurances of accuracy as a basis for admissibility. The established
exception, NRS 51.075, refers to assurances of accuracy, whereas the recently enacted exception, NRS
51.385, focuses on sufficient circumstantial guarantees of trustworthiness. It is simply not possible for this
court to responsibly determine on appeal that the hearsay statements at issue do not, as a matter of law, fit within
the assurances of accuracy required by the former statutory exception, but that upon retrial and a hearing
convened pursuant to the latter statute, they may be determined to offer sufficient circumstantial guarantees of
trustworthiness.
107 Nev. 589, 595 (1991) Lytle v. State
such statements under other exceptions provided by rule or statute. The district court did not
enter a finding pursuant to NRS 51.385(1)(a) because defense counsel agreed that he would
not contest the trustworthiness of the statements. At that point, I do not believe the district
court judge was under any duty to disregard what was tantamount to a stipulation of
trustworthiness and proceed with a hearing.
Moreover, this court is not in a position on appeal to determine whether the hearsay
statements would have satisfied the weighing process under NRS 51.385(1)(a) to determine
reliability or whether they would have been admissible under some other firmly established
hearsay exception. I therefore suggest that such a determination should be left to the
inevitable challenge of Lytle's conviction in the form of a post-conviction hearing based upon
a claim of ineffective assistance of counsel.
2
On the occasion of such a hearing, the district
court could fully consider whether the hearsay statements would have satisfied the
requirements of NRS 51.385(1)(a) or some other hearsay exception if an inquiry had been
made or an objection interposed prior to the introduction of such statements. If the lower
court were to properly conclude that the hearsay statements would have survived a challenge
prior to their introduction, Lytle will not have suffered prejudice either by their admission or
the refusal to grant him relief in the form of a new trial.
For the reasons specified above, I respectfully dissent.
____________
107 Nev. 595, 595 (1991) Taylor v. SIIS
CECILIA TAYLOR, Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM, An
Agency of the State of Nevada, Respondent.
No. 21625
September 6, 1991 816 P.2d 1086
Appeal from a district court ruling that affirmed a state administrative appeals officer's
decision regarding the scope of a stipulation between appellant and respondent concerning
back compensation benefits. Eighth Judicial District Court, Clark County; Nancy A. Becker,
Judge.
Employee appealed from decision of administrative appeals officer of State Industrial
Insurance System (SIIS) denying compensation for her back injury. The district court
affirmed the decision. Employee appealed. The supreme court, Peter I. Breen, District Judge,
held that stipulation was not intended to dispose of employee's claim for compensation
for period running from date her temporary total disability benefits were terminated until
date her claim was reopened, and therefore administrative appeals officer should not
have denied compensation for this claim based on stipulation.
__________

2
I note that appellate counsel did not represent Lytle during trial.
107 Nev. 595, 596 (1991) Taylor v. SIIS
District Judge, held that stipulation was not intended to dispose of employee's claim for
compensation for period running from date her temporary total disability benefits were
terminated until date her claim was reopened, and therefore administrative appeals officer
should not have denied compensation for this claim based on stipulation.
Nancyann Leeder, Nevada Attorney for Injured Workers, Las Vegas, for Appellant.
R. Scott Young, General Counsel SIIS, Carson City; William A. Zeigler, Associate General
Counsel SIIS, Las Vegas, for Respondent.
Stipulation in which employee accepted sum paid by State Industrial Insurance System (SIIS) as appropriate payment for reopened
claim was not intended to dispose of employee's claim for compensation for period running from date her temporary total disability
benefits were terminated until date her claim was reopened, and therefore administrative appeals officer of SIIS should not have denied
compensation for this claim based on stipulation, where stipulation did not refer to this claim, and after signing stipulation, surgery on
employee revealed back injury which may have been compensable during period.
2. Stipulations.
Stipulation is agreement made before judicial tribunal which requires, as does a contract, assent of parties to its terms.
3. Stipulations.
In construing stipulation, reviewing court may look to language of agreement along with surrounding circumstances.
4. Stipulations.
Generally, stipulation should not be construed as disposing of entire case unless there was unequivocal statement by parties that it
was so intended.
OPINION
By the Court, Breen, D. J.:
1

Cecilia Taylor, a driver for Yellow Checkered Cab Co., slipped on an oily substance and
struck her head at the company's place of business in Las Vegas. She filed a timely claim with
SIIS and the claim was accepted. She received temporary total disability benefits (TTD)
from August, 1982 until March, 1983, when Dr.
__________

1
107 Nev. 595, 597 (1991) Taylor v. SIIS
when Dr. Yoon examined her and released her for full duty. From then on, numerous requests
to reopen her claim, medical examinations, new claims, claim denials and appeals followed.
Despite her physical complaints, the doctors found no etiological basis to support SIIS
benefits.
Finally, five years later, Dr. Lewin diagnosed and L4 an L5 nerve fiber dysfunction
and reported his findings to SIIS on February 26, 1988. Surgery was performed on September
10, 1988, and confirmed that she had indeed suffered a physical impairment of her back,
which had deteriorated over time.
On April 20, 1988, a few days after surgery was authorized, Ms. Taylor received a check
from SIIS in the amount of $4,068.90. The face of the check confirmed that the sum
compensated her for a period from July 20, 1987 to April 18, 1988. Two days after receiving
the check, she filed a request disputing the average monthly wage assessment. Also, after
receiving the check, but before surgery, she protested the amount of compensation
represented by the check. This matter had worked its way up to the district court on petition
for judicial review dated August 15, 1988.
In addition, a proceeding was instituted based on the new evidence of her medical
condition. She sought to request compensation from the date her TTD benefits were
terminated in March of 1983 to July, 1987, when her claim was fully reopened. A case
number was assigned and a hearing pending thereon on September, 1988.
Thus on the date of signing a stipulation which is central to this case, Ms. Taylor had at
least three matters in some stage of dispute with, or under consideration by, the SIIS. The
stipulation in question was signed on September 9, 1988, one day prior to Ms. Taylor's injury
confirming back surgery.
The pertinent portion of the stipulation, which was prepared by SIIS counsel and signed
while counsel aided Ms. Taylor, reads:
5. Claimant's compensation benefits shall be based upon average monthly wage of
$677.96. For the period of time when said compensation was based on an average
monthly wage of $665.94 the SIIS shall pay to claimant the additional amount due
based upon the $677.96 average monthly wage, without any interest or cost of living
allowance.
6. Claimant agrees to and hereby does accept the previously paid sum of $4,068.90
as appropriate payment of back compensation and hereby withdraws and renounces for
all time any claim to interest and/or cost of living allowance in addition to the
$4,068.90.
A check was issued pursuant to the stipulation for the difference between the two wage
amounts.
107 Nev. 595, 598 (1991) Taylor v. SIIS
This appeal found its way here through one of Ms. Taylor's claims disputes. She sought a
hearing on the issue of wages prior to July 20, 1987. Through channels, an appeals officer
undertook the monumental task of reciting the history of the relationship between Ms. Taylor
and SIIS and concluded that the foregoing stipulation covered wages for this period, and
found that there were no justifiable issues and therefore denied compensation. On review, the
district court affirmed the appeal officer's decision.
[Headnote 1]
Ms. Taylor contends the stipulation covered only the dispute over the compensation
received from July, 1987 through April, 1988, represented by the $4,068.90 payment.
Conversely, SIIS contends that the stipulation covered all claims of Ms. Taylor from the date
of her injury to the date of the stipulation.
[Headnotes 2, 3]
A stipulation is an agreement made before a judicial tribunal which requires, as does a
contract, the assent of the parties to it terms. Palmer v. City of Long Beach, 199 P.2d 952,
957 (Cal. 1948). Further, in construing a stipulation, a reviewing court may look to the
language of the agreement along with the surrounding circumstances. Mann v. Fender, 587
S.W.2d 188 (Tex.Civ.App. 1979). For example, this stipulation cannot be understood without
reference to Ms. Taylor's injury as well as her claims and appeals history which are not all
contained in the stipulation.
The standard for review by this court is to determine whether the administrative agency
decision is supported by substantial evidence. NRS 233B.135(3). No. Las Vegas v. Pub. Serv.
Comm'n, 83 Nev. 278, 429 P.2d 66 (1967). Gandy v. State ex rel. Div. Investigation, 96 Nev.
281, 607 P.2d 581 (1980).
In this case, the appeals officer looked too narrowly at the language of paragraph six of the
stipulation itself. When the confounding procedural history of this case is clarified, Ms.
Taylor's view of the stipulation is the only correct view.
The language of the stipulation clearly supports Ms. Taylor's contention that the period
between July, 1987 and July, 1988 was the only claim covered by its terms. Paragraph five
amends the average monthly wage dispute and paragraph six waives interest and cost of
living allowance in relation thereto. Ms. Taylor received the higher average wage and gave up
interest and cost of living allowance in reference to the previously paid sum of $4,068.90.
Other paragraphs of the stipulation refer to specific claims and appeals: Hearing Nos. LV
88-2687 and 88-2949; Appeal Nos. LV 9029 and 9053. These case numbers deal with
disputes about the $4,068.90 sum. The claim for the period between 1983 and 19S7,
although pending and given a case number, LV 97S9, was not referred to in the
stipulation.
107 Nev. 595, 599 (1991) Taylor v. SIIS
1987, although pending and given a case number, LV 9789, was not referred to in the
stipulation.
The existence of an actual injury was to be ultimately confirmed by surgery one day after
the signing of the stipulation and after approximately five years of dispute. However, SIIS
seeks to dispose of Ms. Taylor's entire case against it prior to the date of the surgery.
[Headnote 4]
Generally a stipulation should not be construed as disposing of an entire case unless there
was an unequivocal statement by the parties that it was so intended. Vuitton Et Fils, S.A. v. J.
Young Enterprises, Inc., 609 F.2d 1335, 1337 (9th Cir. 1979). The stipulation refers to some,
but not all, of Ms. Taylor's claims. It centers around a sum paid by SIIS to Ms. Taylor for only
one dispute period. The claim pertaining to the period from 1983 to July, 1987 was not
referred to. In fact, it was not in focus until the surgery, one day after the signing of the
stipulation. When the stipulation is read as a whole, it then becomes clear that is was not
intended to dispose of Ms. Taylor's entire claim; rather, it addressed a limited period of time.
Thus, the decision of the appeals officer is not supported by substantial evidence and the
district court erred in affirming the administrative tribunal. The stipulation pertained only to
Ms. Taylor's claim for the period from July 20, 1987 to April 18, 1988.
The merits of the claim, in light of the surgery and back condition, have yet to be
considered by SIIS and the administrative tribunals. They cannot be addressed for the first
time in an appeal to this court. See Crane v. Continental Telephone, 105 Nev. 399, 775 P.2d
705 (1989).
The decision of the district court and appeals officer is reversed. SIIS is directed to
consider Ms. Taylor's claim for compensation through July 20, 1987 on its merits.
For these reasons, we reverse and remand this matter.
Mowbray, C. J., Rose, Steffen and Young, JJ., concur.
____________
107 Nev. 600, 600 (1991) Davis v. State
ROGER BRENT DAVIS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21568
September 17, 1991 817 P.2d 1169
Appeal from an order of the district court denying appellant's petition for post-conviction
relief. Seventh Judicial District Court, White Pine County; Merlyn H. Hoyt, Judge.
Following first degree murder conviction, motion for post-conviction relief was denied by
the district court and petitioner appealed. The supreme court, Young, J., held that petitioner's
trial counsel was not ineffective.
Affirmed.
Goodman, Stein & Chesnoff, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Stuart J. Newman, Deputy Attorney General,
1. Criminal Law.
Counsel was not ineffective for failure to object earlier than immediately prior to start of trial to admission of videotaped statement
given by defendant after he voluntarily responded to police request for non-custodial interview; defendant was given his Miranda
warnings prior to interview, and statement contained in videotape was exculpatory and conformed to theory of defense presented at
trial. U.S.C.A.Const. amend. 6.
2. Criminal Law.
In murder prosecution, counsel was not ineffective for failing to present manslaughter defense theory, as offering voluntary
manslaughter theory or requesting instruction on it would have been totally contrary to defense theory of innocence. U.S.C.A.Const.
amend. 6.
3. Criminal Law.
In first degree murder prosecution, counsel was not ineffective for failing to object to instruction that jury must not be influenced
by any personal feelings of sympathy for or against any party, despite defendant's argument that he was not afforded opportunity to
present mitigating circumstances at trial; defendant's decision not to present mitigating factors was matter of trial tactics in conformity
with his innocence theory of defense. U.S.C.A.Const. amend. 6.
4. Criminal Law.
Murder defendant's counsel was not ineffective for failing to request jury view of crime scene; defendant failed to demonstrate
how jury view would have helped his innocence. U.S.C.A.Const. amend. 6.
5. Criminal Law.
Murder defendant's counsel was not ineffective in connection with defense witnesses' testimony on direct examination that
defendant was coherent after shooting, even though witnesses had been called to establish that defendant was not of his right mind
after shooting and that his statements to police therefore could not have been voluntary; although counsel may have been
"overzealous" in his questioning at times, evidentiary reversals suffered because of such questioning were
not due to inadequate preparation, as claimed by defendant.
107 Nev. 600, 601 (1991) Davis v. State
although counsel may have been overzealous in his questioning at times, evidentiary reversals suffered because of such questioning
were not due to inadequate preparation, as claimed by defendant. U.S.C.A.Const. amend. 6.
6. Criminal Law.
Murder defendant's counsel's failure to request model clemency jury instruction specified in Petrocelli was not unreasonable, as
State did not seek death penalty; thus, such failure did not constitute ineffectiveness. U.S.C.A.Const. amend. 6.
7. Criminal Law.
Where ground for relief asserted by post-conviction relief movant was not part of movant's original petition for post-conviction
relief and was not considered in district court's order denying that petition, it need not be considered by supreme court.
8. Criminal Law.
Counsel was not ineffective for failing to object during State's closing argument to statements pertaining to defendant's offer, in his
videotaped statement, to take polygraph test, or to prosecution's comment on defendant's subsequent failure to follow through with this
offer; videotape was admissible, and polygraph references made while prosecutor was recapping contents of videotape did not rise to
level of prejudice which necessitated reversal. U.S.C.A.Const. amend. 6.
9. Criminal Law.
Murder defendant's counsel was not ineffective for failing to object to prosecution's reference to defendant's ballistics expert as
hired gun; reference to witness was play on words made in relation to witness' professed expertise in ballistics, and jury recognized it
as such.
OPINION
Appellant was convicted of first degree murder with use of a deadly weapon for the death
of his girlfriend, Sandee Cusson, in 1986. His direct appeal to this court was dismissed in
July, 1988. Appellant now appeals from the district court's denial of his petition for
post-conviction relief. The majority of the contentions raised by appellant's post-conviction
petition were raised in his direct appeal. Many were dismissed by this court on direct appeal
because defense counsel failed to lodge contemporaneous objections at trial. Appellant now
claims that these failures constituted ineffective assistance of counsel.
The United States Supreme Court has established a two-part test for the review of
ineffective assistance of counsel claims. First, appellant must demonstrate that his trial
counsel's representation fell below an objective standard of reasonableness. Second, appellant
must show that counsel's deficient performance prejudiced the defense to such a degree that,
but for counsel's ineffectiveness, the results of the trial would probably have been different.
107 Nev. 600, 602 (1991) Davis v. State
been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a presumption
that trial counsel fully discharged his or her duties. This presumption may only be overcome
by strong and convincing proof to the contrary. Lenz v. State, 97 Nev. 65, 66, 624 P.2d 15,
16 (1981).
We now turn to the various instances of ineffective assistance alleged in appellant's
petition.
Failure to suppress appellant's videotaped statement.
[Headnote 1]
Appellant gave a statement to the police shortly after Cusson's death wherein he
maintained that she killed herself after they had quarreled. The statement was videotaped by
the police. Immediately prior to the start of the trial, defense counsel requested that the
statement be excluded as involuntarily given. The trial court's rulings that the statement was
voluntary, and the videotape admissible, were affirmed by this court on direct appeal.
Appellant now alleges that defense counsel was ineffective in failing to recognize at an
earlier stage in the pre-trial proceedings that suppression of the videotaped statement was
supported by Miranda v. Arizona, 384 U.S. 436 (1966). Appellant also cites Sechrest v. State,
101 Nev. 360, 705 P.2d 626 (1985), wherein this court held that all police questioning must
cease after any request for counsel.
We believe the district court correctly determined that counsel was not ineffective in
failing to have the videotaped statement suppressed. The statement was given after appellant
voluntarily responded to a police request for a non-custodial interview. Appellant was given
his Miranda warnings prior to the interview. Despite being advised of his rights, appellant
told the police that he believed the victim had committed suicide. We have previously held
that a criminal defendant's statements to the police are admissible absent any contradictory
evidence that the accused's Miranda warnings were improperly given. Howard v. State, 102
Nev. 572, 576, 729 P.2d 1341, 1343-44 (1986). In this case, there was no evidence
contradicting the validity of appellant's Miranda warnings.
The record also indicates that appellant was eager to communicate his version of the
victim's death. He did so without prompting or encouragement from the police. The statement
contained in the videotape was exculpatory and conformed to the theory of defense appellant
presented at trial. The prohibition in Sechrest against further questioning cited by appellant
does not apply when the accused himself initiates further communication. 101 Nev. at 365,
705 P.2d at 629-30. We believe this to be the case in the present appeal.
107 Nev. 600, 603 (1991) Davis v. State
We believe the statement was clearly admissible and fail to see how counsel's failure to
lodge an earlier objection would have made a difference in the outcome of appellant's trial.
We therefore hold that this contention fails to meet the Strickland test for ineffective
assistance of counsel.
Failure to present a manslaughter defense.
[Headnote 2]
Appellant also asserts that counsel's failure to present a voluntary manslaughter theory of
defense, or request a manslaughter jury instruction, constituted ineffective assistance of
counsel. At the post-conviction hearing, defense counsel stated that a manslaughter theory
and instruction would have been inappropriate because appellant's theory of defense was that
the victim either killed herself or was killed by someone else. The court below agreed. We
believe the lower court's decision was correct. Appellant maintained his total innocence of the
crime at all times. Offering a voluntary manslaughter theory or requesting an instruction on it
would have been totally contrary to the defense's theory of the case.
On appeal, this court will not second-guess an attorney's tactical decisions where they
relate to trial strategy and are within the attorney's discretion. Wilson v. State, 99 Nev. 362,
372, 664 P.2d 328, 334 (1983); Watkins v. State, 93 Nev. 100, 102, 560 P.2d 921, 922
(1977). This remains so even if better tactics appear, in retrospect, to have been available.
Accordingly, we find no ineffective assistance in defense counsel's failure to present a
manslaughter defense theory or failure to request a manslaughter jury instruction.
Failure to object to the charge against sympathy.
[Headnote 3]
At the start of appellant's trial, the judge instructed the jury that it must not be influenced
by any personal feelings of sympathy for or against any party. A similar charge was given
before the jury went into deliberation. Defense counsel failed to object to either charge.
Appellant argues that the court's charge against sympathy violated California v. Brown, 479
U.S. 538 (1987), and that counsel's failure to object on the basis of the Brown decision
constituted ineffective assistance.
In Brown, the Court upheld the use of an instruction against sympathy only because the
defendant was afforded the opportunity to present mitigating circumstances. 479 U.S. at
541-43. Appellant argues that, because he was not afforded a similar opportunity to present
mitigating circumstances at trial, the charge against sympathy was in error and defense
counsel was ineffective in failing to object to it.
107 Nev. 600, 604 (1991) Davis v. State
charge against sympathy was in error and defense counsel was ineffective in failing to object
to it.
The State argues that appellant's decision not to present mitigating factors was a matter of
trial tactics in conformity with his innocence theory of defense, and that any appeal to the jury
for sympathy would have detracted from this theory.
We agree with the State's assertion that failure to present mitigating circumstances was a
tactical decision and should not be second-guessed by this court. Wilson, 99 Nev. at 372, 664
P.2d at 334; Watkins, 93 Nev. at 102, 560 P.2d at 922. Furthermore, we do not believe that an
opportunity for informing the jury of mitigating circumstances was procedurally warranted in
this case. All of the authority cited by appellant pertains to the presentation of mitigating
circumstances during a bifurcated penalty phase hearing where the imposition of the death
penalty is a sentencing option.
1
The State did not seek the death penalty in this case. On
direct appeal, this court dismissed appellant's contention that he was entitled to a bifurcated
penalty hearing. We stand by that ruling on the current appeal.
Failure to request a jury view of the crime scene.
[Headnote 4]
Defense counsel did not request that the jury be allowed to view the scene of Sandee
Cusson's death. At the post-conviction hearing, counsel stated that he did not believe an
in-person view would have added anything to the photos of the scene already introduced at
trial. The court below concurred in that belief, finding that the decision not to request a jury
view was a consciously chosen trial tactic.
Appellant fails to demonstrate how a jury view would have helped his case. We are at a
loss to see what difference it would have made or how appellant was prejudiced.
Accordingly, we hold that appellant's contention fails the Strickland test.
Failure to adequately prepare direct and cross-examination of witnesses.
[Headnote 5]
At trial, the defense called a doctor who saw appellant at the hospital after the victim's
body was taken there. This witness was called to establish that appellant was not of his right
mind after the shooting and, therefore, that the statements he made to the police shortly
afterward could not have been voluntary. On direct examination, the doctor testified to his
belief that appellant was coherent when he saw him at the hospital.
__________

1
See Hogan v. State, 103 Nev. 21, 732 P.2d 422 (1987); Howard v. State, 102 Nev. 572, 729 P.2d 1341
(1986); Milligan v. State, 101 Nev. 627, 708 P.2d 289 (1985); Biondi v. State, 101 Nev. 252, 699 P.2d 1062
(1985).
107 Nev. 600, 605 (1991) Davis v. State
examination, the doctor testified to his belief that appellant was coherent when he saw him at
the hospital. The medical attendant who took appellant's blood alcohol content at the hospital
was also called by the defense. He also stated, on direct examination, that he believed
appellant was coherent at the time.
Appellant argues that the testimony of the two men, both called on his behalf, was
damaging to his defense and demonstrates defense counsel's failure to adequately prepare his
witnesses. Appellant also argues that defense counsel was remiss in his cross-examination of
a State witness who testified that the victim and appellant had a fight on the day before her
death.
Defense counsel testified at the post-conviction hearing below that he was guilty of asking
one question too many and asking questions that perhaps should not have been asked at
trial. The court below believed that counsel was probably overzealous in his questioning at
times, but that the evidentiary reversals suffered because of such questioning were not due to
inadequate preparation. Our review of the record leads us to concur in this conclusion. We
do not believe counsel's performance in connection with these witnesses fell below the
reasonableness standard established in Strickland.
Failure to request the Petrocelli instruction.
[Headnote 6]
Appellant argues that counsel's failure to request the model clemency jury instruction
2
specified in Petrocelli v. State, 101 Nev. 46, 56, 692 P.2d 503, 511 (1985), constituted
ineffective assistance of counsel. He claims that the instruction actually given
3
omitted
crucial protective elements found in the Petrocelli instruction.
__________

2
The model instruction states:
1. Life imprisonment with the possibility of parole is a sentence to life imprisonment which provides
that the Defendant would be eligible for parole after a period of ten years. This does not mean that he
would be paroled after ten years, but only that he would be eligible after that time period.
2. Life imprisonment without the possibility of parole means exactly what it says, that the Defendant
shall not be eligible for parole.
3. If you sentence the Defendant to death you must assume that the sentence will be carried out.
4. Although under certain circumstances and/or conditions the State Board of Pardons
Commissioners has the power to modify sentences, you are instructed that you may not speculate as to
whether the sentence you impose may be changed at a later date.

3
Instruction No. 16 stated:
If the penalty is fixed at life imprisonment with the possibility of parole, eligibility for parole begins
when a minimum of ten years has been served. If the penalty is fixed at life imprisonment without the
possibility of parole, the Defendant shall not be eligible for parole.
107 Nev. 600, 606 (1991) Davis v. State
instruction. Appellant asserts that trial counsel's lack of familiarity with the Petrocelli
instruction, and his ensuing failure to request the instruction, were per se ineffective
assistance of counsel because it allowed the prosecution to invite jury speculation on the
possibility of parole in violation of this court's holding in Milligan v. State, 101 Nev. 627,
637, 708 P.2d 289, 295 (1985).
Appellant raised this contention in his direct appeal. This court found that it was without
merit because he had not requested the instruction at trial. Appellant now asserts that
counsel's failure to request the instruction constituted ineffective assistance. The mandatory
instruction, while not expressly limited to capital cases, is generally associated with them. We
therefore see nothing unreasonable in counsel's failure to request the Petrocelli instruction in
a case where the State did not seek the death penalty. We also do not believe that the giving
of the instruction would have made a difference in the outcome of appellant's trial or the
sentence he received. Accordingly, we hold that appellant's claim fails to meet the Strickland
test for ineffective assistance.
Failure to object to prosecutorial misconduct.
[Headnote 7]
In his direct appeal, appellant alleged that the prosecution made a number of improper
references during closing argument. This contention was dismissed because defense counsel
failed to object to the statements at trial. Appellant now contends that counsel's failure to
object constituted ineffective assistance. This ground for relief was not part of appellant's
original petition for post-conviction relief and was not considered in the district court's order
denying that petition. Hence, it need not be considered by this court. McKay v. City of Las
Vegas, 106 Nev. 203, 207, 789 P.2d 584, 586 (1990). We will nevertheless discuss the
allegations of misconduct because of the seriousness of the issues raised.
[Headnote 8]
Among the references objected to are statements pertaining to appellant's offer, in his
videotaped statement, to take a polygraph test to substantiate his version of the events
surrounding Sandee Cusson's death.
__________
Under the laws of the State of Nevada, any sentence imposed by the Jury may be reviewed by the State
Board of Pardon Commissioners. Whatever sentence you return in your verdict, this Court will impose
that sentence. Whether or not the State Board of Pardon Commissioners, upon review, if requested by the
Defendant, would change that sentence, this court has no way of knowing. The State Board of Pardon
Commissioners, however, would have the power to modify any sentence at a later date.
107 Nev. 600, 607 (1991) Davis v. State
Cusson's death. The prosecution also commented on appellant's subsequent failure to follow
through with this offer. Appellant argues that these references were in direct contravention of
our holding in Santillanes v. State, 102 Nev. 48, 50, 714 P.2d 184, 186 (1986), wherein we
held that proof that a defendant in a criminal trial refused to take a polygraph test, or offered
to submit to one, is inadmissible and incompetent evidence.
We believe the present situation is distinguishable from Santillanes. In that case, the
defense attempted, by pretrial motion, to exclude all evidence concerning Santillanes' failure
to take a polygraph. Here, evidence of the polygraph test was introduced by way of the
videotaped statement appellant gave to the police wherein he offered to submit to the test. We
have already discussed why we believe the videotape was admissible. The polygraph
references found in the State's closing argument were made while the prosecutor was
recapping the contents of the videotape. We do not believe they rose to the same level of
prejudice which necessitated reversal in Santillanes. Accordingly, we do not believe defense
counsel's failure to object to the polygraph references amounted to ineffective assistance of
counsel.
[Headnote 9]
Appellant also objects to the prosecution's reference to a defense witness as a hired gun.
Appellant argues that this statement was in violation of our holding in Sipsas v. State, 102
Nev. 119, 716 P.2d 231 (1986). In Sipsas, the prosecutor made the following remarks in
relation to a California coroner who testified as an expert witness for the defense:
Now, that brings us to Dr. Jindrich. The hired gun from hot tub country. Have
stethoscope, will travel.
. . . .
I think Dr. Jindrich is a living example of Lincoln's law. You can fool all of the
people enough of the time.
He is a politician. He runs for office.
102 Nev. at 125, 716 P.2d at 234. Defense counsel failed to object to these statements at trial.
This court found these remarks to be so prejudicial that they required sua sponte intervention
to protect the defendant's right to a fair trial. Id.
In the present case, the remark appellant objects to occurred in the State's closing argument
when the prosecutor referred to the testimony of a ballistics expert called by the defense to
establish where Sandee Cusson was shot:
There is a shooting in the truck and high velocity blood found within the vehicle. He
[the expert] can't even find evidence of that having occurred. Well, we know it
occurred.
107 Nev. 600, 608 (1991) Davis v. State
occurred. He's a hired gun himself. . . . What is the point of origin? He didn't know. He
didn't know the point of origin of the blood. That's what the science [ballistics] is all
about.
(Emphasis added.) This portion of the State's summation reflects an effort to impugn the
abilities of the defense's expert. The reference to the witness being a hired gun himself was
a play on words made in relation to the witness' professed expertise in ballistics. We believe
the jury recognized it as such. We do not believe the remark created the same degree of
prejudice which necessitated reversal in Sipsas. Accordingly, counsel's failure to object to the
remark did not amount to ineffective assistance of counsel.
All of appellant's contentions having failed to meet the test for ineffective assistance of
counsel established in Strickland, we hereby affirm the judgment of the district court.
Rose, J., with whom Springer, J., agrees, concurring:
I am concurring because the performance of Roger Davis' (Davis) counsel was deficient in
two respects, but the result of the trial would have been the same even if the errors had not
been made. Therefore, reversal is not mandated pursuant to Strickland v. Washington, 466
U.S. 668 (1984).
The two errors I believe defense counsel for Davis made at trial were that (1) no objection
was lodged to the prosecutor's improper reference to Davis' refusal to take a lie detector test,
and (2) defense counsel did not request an instruction delineating the difference between a
life with and life without the possibility of parole sentence pursuant to Petrocelli v. State, 101
Nev. 46, 692 P.2d 503 (1985).
1

During closing argument, while paraphrasing appellant's statement from the videotape, the
prosecution advised the jury of appellant's refusal to follow through with the test:
I told her to get out, and then I pulled the coil wires. . . . Then I passed out. She was
sitting in the pickup when I saw her. She shot herself. The gun was on the table in the
house. Demands a lie detector test. He was offered one. He didn't take it.
(Emphasis added.)
At another point in his summation, the prosecutor quoted appellant's statement from the
videotape: "He keeps demanding, he saysthis is his words, 'Lie detector the hell out of
me.' He was offering."
__________

1
Any Petrocelli instruction should be updated to reflect the current law that a defendant sentenced to life
without the possibility of parole is not eligible for parole until he or she has served twenty calendar years. See
Nev. Const. art. 5, 14(2); Smith v. State, 106 Nev. 781, 802 P.2d 628 (1990).
107 Nev. 600, 609 (1991) Davis v. State
appellant's statement from the videotape: He keeps demanding, he saysthis is his words,
Lie detector the hell out of me.' He was offering.
Appellant raised the impropriety of these statements on direct appeal. In dismissing that
appeal, we noted defense counsel's failure to object to the polygraph references. Counsel's
failure to object meets the first-part test for ineffective assistance of counsel established in
Strickland. Defense counsel's failure to object to the prosecutor's remarks fell below a
reasonable standard of representation.
Evidence of a criminal defendant's refusal to take a polygraph test is in the nature of a
comment of the defendant's exercise of his fifth amendment right against self-incrimination
and is inadmissible. Santillanes v. State, 102 Nev. 48, 51, 714 P.2d 184, 186 (1986). The
facts presented by this appeal are very similar to those found in Santillanes. During the taking
of a voluntary statement by police, Santillanes offered to take a lie detector test to corroborate
his statement. He subsequently refused to follow through with this offer. At his trial for
murder, the court, over objection, admitted testimony concerning Santillanes' offer and
subsequent failure to take a polygraph test. The prosecutor commented on this testimony in
his closing remarks. This court found that evidence of the defendant's offer and failure to take
a polygraph, and the prosecution's comments about it, constituted error. This holding should
mandate that we also find the prosecutor's remark error and failure to object to it ineffective
representation.
Counsel failed to request a Petrocelli instruction. The majority opinion does not find error
in this because it concludes that such an instruction is limited to cases where the death
penalty is in issue. I disagree. The purpose of the Petrocelli instruction is to give the jury
some idea of the real meaning of the penalty it is to impose on a defendant. It is a common
belief by the populous that a prisoner sentenced to life does not actually stay in prison for his
or her entire existence, and I am sure jurors speculate about what life with or life without the
possibility of parole actually means in terms of years to be served. In fact, in Petrocelli we
expressly stated that the jury should take into account whether parole for the defendant will
be considered at some future date.
Petrocelli also relies upon Serrano v. State, 84 Nev. 676, 447 P.2d 497 (1968),
contending that a jury should not consider possible future modifications of its sentence.
In Serrano, and again in Summers v. State, 86 Nev. 210, 467 P.2d 98 (1970), however,
we explicitly held that the determination of whether parole should be considered at
some future date is within the province of the jury.
107 Nev. 600, 610 (1991) Davis v. State
101 Nev. at 56, 692 P.2d at 510. Apparently, the majority wants the jury to consider the
future possibility of parole, but to do it by speculation rather than with the aid of a concrete
instruction as to when parole would be possible.
While the giving of a Petrocelli instruction may not be as compelling in a non-capital case
when the decision between life with or life without parole is being made, the reasons for
giving it remain the sameto prevent jury speculation and to give the jury an idea of what is
meant by the actual sentences to be considered. When a jury is making the decision between
life with and life without the possibility of parole, the difference of at least ten calendar years
in prison is usually in the balance.
Although I believe defense counsel was ineffective, I do not believe the result would have
been different had the errors not been made. While improper, the reference to the defendant's
refusal to take a lie detector test was only made in passing, and the prosecutor did not dwell
on that point. Additionally, there is abundant evidence to establish the fact that Davis
murdered the victim, and his claim that the victim inflicted the mortal wounds on herself was
completely discredited. There is no indication in the record to show that the jury wavered
between possible sentences, and no request for a more specific instruction was made by the
jury. I believe the result would have been the same even if a Petrocelli instruction had been
given. Therefore, the second part of the Strickland case is not met. For this reason, I concur in
the affirmance of this case.
____________
107 Nev. 610, 610 (1991) Insurance Corp. of America v. Rubin
INSURANCE CORPORATION OF AMERICA, a Texas Corporation, Appellant, v.
ALEXANDER J. RUBIN, M.D., Respondent.
No. 20543
INSURANCE CORPORATION OF AMERICA, a Texas Corporation, Appellant, v. BETTY
ROSE WESTON, as Guardian Ad Litem for BRANDY BATTISTE; RAYMOND
BATTISTE, ROXANNE BATTISTE, Respondents.
No. 21627
September 30, 1991 818 P.2d 389
Appeal from an order granting original respondent partial summary judgment and appeal
from an order granting cross-claimants summary judgment on their action for declaratory
relief. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Declaratory judgment action was brought for determination of meaning of word
occurrence in medical liability policy as it related to insured's alleged malpractice for
failure to diagnose brain tumor which allegedly rendered patient blind. Physician's motion for
partial summary judgment was granted by the district court. Insurer appealed. The supreme
court held that each of patient's five visits to physician were separate occurrences for
purposes of determining limit of coverage under policy.
Affirmed.
Wait & Shaffer, Reno, for Appellant.
Alverson, Taylor, Mortensen & Gould, and Daniel E. Curriden, Las Vegas, for
Respondent Rubin.
Galatz, Earl, Catalano & Smith, Las Vegas; Spence, Moriarity & Schuster, Jackson,
Wyoming, for Respondents Weston and Battistes.
1. Judgment.
Entry of summary judgment is proper only where there are no issues of fact and moving party is entitled to judgment as matter of
law.
2. Judgment.
Action for declaratory relief seeking interpretation of insurance policy generally presents question of law that may be determined
on motion for summary judgment.
Terms of settlement agreement could be considered on appeal from summary judgment entered in action for declaratory relief on
insurance contract, even though settlement agreement was not part of pleadings in trial court, where agreement was part of record on
appeal and its authenticity was not questioned.
4. Insurance.
Each of patient's five visits to treating physician was separate occurrence for purposes of determining limit of coverage under
physician's medical liability policy for physician's failure to diagnose brain tumor that allegedly rendered patient blind where patient
suffered from similar but different symptoms on each visit and where, physician made independent evaluation upon each visit which
resulted in different diagnoses.
5. Insurance.
When terms of insurance contract are unclear, they are to be construed in favor of granting coverage to insured.
OPINION
1

Per Curiam:
This case centers on the meaning of the word occurrence found in a liability insurance
policy.
__________

1
By order of this court, filed February 8, 1991, these appeals (Docket Nos. 20543 and 21627) were
consolidated for argument and disposition.
found in a liability insurance policy. Appellant Insurance Corporation of America (ICA),
issued a policy to respondent, Dr. Alexander J. Rubin, with a limit of $200,000.00 per
occurrence of malpractice and an aggregate limit of $600,000.00 per year. Respondents,
Brandy, Raymond and Roxanne Battiste (Battistes),
2
sued Dr. Rubin alleging malpractice in
the diagnosis of Brandy Battiste, a young girl who has since been rendered blind as the result
of a brain tumor. Dr. Rubin examined and treated Brandy on five separate occasions.
According to Dr. Rubin, he made a separate and independent diagnosis on each occasion. Dr.
Rubin never diagnosed a brain tumor.
In an action seeking declaratory relief, the district court granted Dr. Rubin's motion for
partial summary judgment, finding that, under the terms of the liability policy, an
occurrence took place each time Brandy visited Dr. Rubin's office and was diagnosed. The
Battistes eventually filed their own motion for summary judgment which was also granted.
After summary judgment was granted, all of the interested parties negotiated and signed a
settlement agreement. This eight-page agreement, which was signed by a representative of
ICA in April of 1989, provided that the Battistes would release all claims in exchange for at
least $200,000.00 but not more than $600,000.00 Under the agreement, the actual amount of
settlement is to be determined based upon the court's final determination of the insurance
coverage afforded under Dr. Rubin's ICA liability policy. The settlement provides for an
original payment of $200,000.00 and possible further payment depending on the final
interpretation of the policy by the courts.
[Headnotes 1, 2]
Entry of summary judgment is proper only when there are no issues of fact and the moving
party is entitled to judgement as a matter of law. Mullis v. Nevada National Bank, 98 Nev.
510, 512 654 P.2d 533, 535 (1982). Further, an action for declaratory relief seeking the
interpretation of an insurance policy generally presents a question of law that may be
determined on a motion for summary judgment. Neumann v. Standard Fire Ins., 101 Nev.
212, 699 P.2d 105 (1985); National Fire Ins. v. Reno's Exec. Air, 100 Nev. 360, 682 P.2d
1380 (1984).
ICA contends that summary judgment was improper because respondents presented no
evidence showing that Dr. Rubin's negligence caused Brandy's injuries. The order of partial
summary judgement issued below does not make any specific findings or conclusions;
rather, it simply provides "that plaintiff's motion for partial summary is granted. . . ."
__________

2
Brandy is represented by her guardian ad litem, Betty Rose Weston. Weston brought the original action
along with Raymond and Roxanne Battiste. For purposes of convenience, all of these respondents will
collectively be referred to as the Battistes.
mary judgement issued below does not make any specific findings or conclusions; rather, it
simply provides that plaintiff's motion for partial summary is granted. . . . The grant of
summary judgment on the declaratory relief action appears to stand for the proposition that
the policy's appropriate limit of liability is $600,000.00 based upon the conclusion that each
diagnosis by Dr. Rubin was an occurrence under the terms of the policy. ICA correctly
points out that there was no finding by the court that each of these occurrences amounted to
negligence.
ICA argues that a factual determination with respect to Dr. Rubin's alleged negligence
must be made prior to its liability under the policy being determined. Dr. Rubin maintains
that, based upon the settlement of the underlying claim against him, his actual liability need
not be ascertained. Under the terms of the settlement agreement, to which ICA is a party, ICA
was to pay $200,000.00 to the Battistes immediately with an additional $400,000.00 to be
paid if it is determined by way of this action that each diagnosis by Dr. Rubin was an
occurrence under the terms of the policy.
3
Under the terms of the settlement agreement,
the Battistes gave up their right to seek full recovery beyond the limit of the liability policy,
and ICA gave up its right to force the Battistes to prove to a jury that Dr. Rubin committed
malpractice. Thus, by the terms of the settlement agreement, and for purposes of settlement
only, ICA impliedly conceded the issue of negligence.
[Headnote 3]
ICA contends that the settlement agreement cannot be considered in this action for
declaratory relief on the insurance contract. In support of this position, ICA cites well settled
authority that it is improper to address new issues for the first time on appeal. See McKay v.
City of Las Vegas, 106 Nev. 203, 789 P.2d 584 (1990); Paul v. Armstrong, 1 Nev. 70 (1865).
It is true that the settlement agreement was not before the lower court as part of any
pleadings; however, it is apparent that the parties had generally agreed to settle the matter for
the policy limit based upon the court's interpretation of occurrence.
4

Although the settlement agreement was not itself part of the pleadings below, ICA should
be bound by its terms nonetheless.
__________

3
Although the settlement agreement was not signed until after summary judgment was granted, it seems
apparent that the parties had already agreed in principle to settle the case for the policy limit (whatever the court
determined it to be).

4
In arguing the motions for summary judgment, ICA's counsel stated that a motion for summary judgment
in the context of this case raises not factual issues but legal issues. Counsel then went on to argue the possible
interpretations of the word occurrence and their consequences.
pleadings below, ICA should be bound by its terms nonetheless. Since the agreement is part
of the record on appeal and its authenticity is not questioned, this court can consider it in
reviewing the actions of the district court. Under the terms of the agreement, ICA assents to
settling the liability claim for the policy limit with the policy limit to be determined by the
court's interpretation of occurrence as it is used in the policy. We must therefore determine
the legal meaning of occurrence.
Although this court has never before considered this issue, the general rule followed in
many jurisdictions provides that an act is an occurrence for purposes of liability if the act
caused the resulting injury. Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56 (3rd
Cir. 1982). In applying this cause theory, courts ask if there is but one proximate,
uninterrupted, and continuing cause which resulted in all of the injuries and damage. Id. at
61 (citations omitted). In Appalachian, an employer adopted certain employment policies
which allegedly injured several female employees. The court held that multiple injuries of
different magnitudes had but one cause, the discriminatory employment policies; therefore,
there was only one occurrence for purposes of coverage. Id.
In Aetna Cas. v. Med. Protective Co. of Ft. Wayne, 575 F.Supp. 901, 903 (N.D.Ill. 1983),
the court concluded that a series of injuries will be a single occurrence where they all flow
from a single cause. However, [w]here each injury results from an independent cause, there
are a series of occurrences' id. at 903 (citations omitted). In Aetna, the court held that a
physician's initial drug prescription and subsequent improper monitoring of the patient's drug
usage) (resulting in blindness) constituted a single occurrence. It was specifically found that
there was only one diagnosis and one course of treatment prescribed. Because only one
decision was made there was but one occurrence. Id.
Following Appalachian, the court in D'Auria v. Zurich Ins. Co., 507 A.2d 857, 860-61
(Pa.Super. 1986), held that a complaint claiming failure to diagnose and treat along with
failure to adequately follow-up alleges only one cause and therefore only one occurrence
for purposes of coverage. In D'Auria, the court concluded that it would not be appropriate to
label a doctor's failure to follow-up on an original misdiagnosis after the patient had left the
doctor's care as a separate cause of injury. Id. at 861.
In finding but one occurrence in a medical malpractice action, the United States District
Court in Washington, D.C., stated that in order for subsequent acts to be considered
substantial factors in the cause, there must be some evidence that the doctor did more
than simply carry out a course of treatment predicated on the earlier misdiagnosis." St.
Paul Fire and Marine Ins. v. Childrens Hosp., 670 F.Supp.
did more than simply carry out a course of treatment predicated on the earlier misdiagnosis.
St. Paul Fire and Marine Ins. v. Childrens Hosp., 670 F.Supp. 393, 400 (D.D.C. 1987). The
District of Columbia court concluded that [s]ubsequent acts implementing a prior negligent
decision, without more, will not trigger additional insurance coverage. Id.
Finally, in Ariz. Prop. & Cas. Ins. Guar. Fund v. Helme, 735 P.2d 451, 457 (Ariz. 1987),
the Arizona Supreme Court applied the cause theory in finding that the number of acts
producing injury or damage, rather than the number of injuries caused, is the key on which
the definition of occurrence' turns. In Helme, the insurance policy defined a single
occurrence as a series of related acts or omissions. Id. at 456. Despite this somewhat
narrow definition, the Arizona court concluded that two doctors' failures to diagnose were
separate causes and therefore constituted two occurrences. Id. at 458.
[Headnote 4]
In the instant case, the only facts before the court on the occurrence issue are the
assertions of Dr. Rubin in his affidavit. Because these assertions are uncontroverted in the
record they must be accepted as fact for purposes of this appeal. Based upon Dr. Rubin's
uncontroverted affidavit, we conclude that each visit and diagnosis was a separate occurrence
for purposes of determining the limit of coverage under the liability policy.
Dr. Rubin examined Brandy on five separate occasions from June of 1982 to April of
1983. Generally, it seems that Brandy was suffering from similar but different symptoms on
each occasion. On each occasion, Dr. Rubin made a different diagnosis and prescribed a
different course of treatment. Dr. Rubin states in his affidavit that each time he treated Brandy
he made an independent assessment of her condition based on her complaints, history, and
the objective results of [his] examination of her. He goes on to state that he did not make a
single diagnosis at the beginning of Brandi's [sic] course or treatment and then rely blindly on
that diagnosis. Dr. Rubin finally points out that there were two significant gaps of time
during his treatment of Brandy, one of nearly six months and another of nearly four months.
In the instant case, Dr. Rubin did make an independent evaluation upon each visit and
different symptoms were revealed during each visit. Based upon the reevaluation we conclude
that the trial court did not err under the widely accepted cause theory, because each
diagnosis was a separate occurrence for purposes of the insurance policy limit. Based upon
this analysis, there were five separate occurrences, each with a policy limit of $200,000.00.
Therefore, under the terms of the settlement agreement, ICA is obligated to pay the aggregate
policy limit of $600,000.00 to the Battistes because there were at least three separate
"occurrences."
$600,000.00 to the Battistes because there were at least three separate occurrences.
[Headnote 5]
The trial court's grant of partial summary judgment was proper because it is well settled in
Nevada that when the terms of an insurance contract are unclear, they are to be construed in
favor of granting coverage to the insured. The insurer is in complete control of the language
of the policy, and for that reason, when there is some doubt as to the meaning of a term, it
should be construed against the sophisticated insurer and in favor of the unknowing
consumer. See Ainsworth v. Combined Ins. Co. of America, 104 Nev. 587, 763 P.2d 673
(1988); National Union Fire Ins. v. Reno's Executive Air, 100 Nev. 360, 682 P.2d 1380
(1984).
Accordingly, we affirm the orders of the district court.
________________
107 Nev. 616, 616 (1991) Margetts v. State
JAMES M. MARGETTS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21125
September 30, 1991 818 P.2d 392
Appeal from a judgment of conviction of one count of obtaining property by false
pretenses and one count of swindling. Ninth Judicial District Court, Douglas County; David
R. Gamble, Judge.
Defendant was convicted of obtaining property by false pretenses and swindling following
a jury trial in the district court, and he appealed. The supreme court held that: (1) State
adequately proved reliance element of obtaining property by false pretenses; (2) witness'
testimony that defendant had cheated him in prior transaction was properly admitted for the
limited purpose of proving intent or absence of mistake after defendant placed his intent in
issue; but (3) prosecutor's improper closing arguments regarding use of prior bad act evidence
to prove defendant's character and propensities, when considered with failure to instruct jury
that it could not convict if specific element of offense was lacking, was reversible error.
[Rehearing denied December 23, 1991]
Terri Steik Roeser, State Public Defender and James P. Logan, Deputy Public Defender,
Frankie Sue Del Papa, Attorney General and Robert E. Wieland, Deputy Attorney
General, Carson City; Scott Doyle, District Attorney, Douglas County, for Respondent.
1. Stipulations.
Stipulation at trial that the defendant and victims understood that defendant would pay victims for transferred coins at the end of
week long coin show was a meeting of the mind between both parties, notwithstanding defendant's claim that he never told victim that
he had a specific buyer for the coins, and could be used as proof that victim relied on false statement made by defendants to satisfy
reliance element of obtaining property by false pretenses statute. NRS 205.380.
2. Criminal Law.
Witness' testimony that defendant charged with swindling and false pretenses had cheated him in a coin deal several years earlier
was admissible to prove intent or absence of mistake after defendant placed his intent at issue by testifying that he had no intention to
swindle victim and that he tendered bad check by mistake. NRS 48.045, subd. 2.
3. Criminal Law.
Trial court's failure to sustain defense objection to prosecutorial closing argument and to give another oral limiting instruction was
erroneous; prosecutor's argument ignored limiting instruction and told jury it could use testimony of defendant's prior bad acts to prove
his character and propensities, in response to which court merely stated that jury should rely on its prior instruction without ruling on
defense objections.
4. Criminal Law.
The defense has the right to have jury instructed on its theory of the case as disclosed by the evidence, no matter how weak or
incredible that evidence might be.
5. Criminal Law.
Failure to instruct jury that it had to find defendant not guilty if it found that defendant lacked the specific intent to defraud at the
time he received krugerrands from victim, when combined with prosecutor's improper closing argument, amounted to cumulative error
requiring reversal of defendant's convictions on charges of swindling and false pretenses.
OPINION
Per Curiam:
Appellant James M. Margetts (Margetts) was a coin dealer who bought 100 gold
krugerrands for $43,200 from another dealer, Leon Hendrickson (Hendrickson), at a coin
show. Both Margetts and Hendrickson understood that Margetts was to pay Hendrickson for
the coins at the end of the week long show. During the week, Margetts sold the coins and lost
all the proceeds in casino gambling. At the end of the show, he tendered a bad check to
Hendrickson.
bad check to Hendrickson. When Margetts failed to repay the debt, he was charged with one
count of swindling and one count of obtaining money by false pretenses. The jury convicted
him on both counts but the offenses were merged for sentencing so that he was only
sentenced for swindling.
Both Margetts and Hendrickson testified that they had dealt with each other before, that
their normal course of dealing was to settle all accounts at the end of the show, and that they
both expected to conduct business in this manner this time as well. Both Margetts and
Hendrickson agreed that Margetts made several promises to eventually pay the debt owed.
However, Hendrickson never had agreed to extend credit to Margetts, as he expected to be
paid at the close of the show, which took place more than three years before trial.
During the show, Margetts attempted to resell the coins to one Bob Shirley (Shirley).
Shirley testified that since they were dealing through middlemen, he did not know that he was
dealing with Margetts. However, before the deal went through, he learned that the seller,
which later turned out to be Margetts, had backed out of the contract. Shirley was permitted
to testify that Margetts refused to deal with him because in 1981, Margetts had cheated him in
a similar deal. Shirley told the court that Margetts purchased 104 Krugerrands from him for
$48,000, but the check was returned for insufficient funds and Shirley was never paid.
Margetts now makes five assertions of error. He asserts that: (1) the State failed to prove
the element of reliance in both the false pretenses and swindling statutes; (2) the evidence of
his prior bad act should have been excluded because it occurred five years before this crime
and was too prejudicial; (3) the prosecutor made improper comments regarding the prior bad
act in closing argument; (4) the court failed to give jury instructions that would have provided
the jury with the defense theory of the case; and (5) the defense should have been permitted to
comment on the gravity of the jury's task. We conclude that assertions three and four have
merit and require reversal of this case.
[Headnote 1]
First, Margetts contends that the State failed to prove that Hendrickson relied on a false
statement made by Margetts. He claims that he never told Hendrickson that he had a specific
buyer for the coins. However, the State did prove reliance by showing that both parties
understood that Margetts would pay Hendrickson at the end of the show. This understanding
was both a meeting of the minds between both parties and a stipulated fact at trial. Therefore,
it satisfied the reliance element of the obtaining property by false pretenses statute. NRS
205.380.
[Headnote 2]
Margetts next contends that Shirley's testimony regarding his prior act should have been
excluded because it was too remote in time. At trial, Margetts testified that he had no
intention to swindle Hendrickson, and that he tendered the bad check by mistake. Therefore,
he placed his intent at issue, making prior bad act evidence admissible to prove intent, or
absence of mistake. NRS 48.045(2). Shirley's testimony was properly admitted for the limited
purpose of proving those items.
[Headnote 3]
Although the prior bad act was admissible, the court correctly admonished the jury that it
should not use the act to prove Margetts' character, or to prove that he acted in conformity
with the prior act on the charge at issue. In his closing argument, the prosecutor ignored the
limiting instruction and told the jury that it should use Shirley's testimony to prove Margetts'
character and propensities. In spite of defense objections, the court refused to admonish the
jury that it may not consider the prior bad act for those purposes. The court stated only that
the jury should rely on its prior instructions, and did not rule on the objection. The court's
failure to sustain the objection and to give another oral limiting instruction was error.
Standing alone, it might have been harmless.
[Headnote 4]
However, the trial court also refused to use a jury instruction that the defense offered to
present their theory of the case to the jury. We have held that the defense had the right to have
the jury instructed on its theory of the case as disclosed by the evidence, no matter how weak
or incredible that evidence may be. Adler v. State, 95 Nev. 339, 594 P.2d 725 (1979) (failure
to give proposed instruction was not prejudicial when defendant's argument was not a defense
to the crime); Barger v. State, 81 Nev. 548, 552, 407 P.2d 584, 586 (1965) (failure to give
instruction on entrapment defense was prejudicial error).
The defense offered an instruction which read, [i]f you find that at the time Mr. Margetts
received the krugerrands from Mr. Hendrickson he lacked the specific intent to defraud Mr.
Hendrickson then you must return a verdict of Not Guilty to both charges.
We have concluded that the failure to instruct on the absence of an element of a crime is
reversible error. Brooks v. State, 103 Nev. 611, 747 P.2d 893 (1987). In Brooks, the
defendant was standing in the vicinity of a drug transaction and was convicted of possession
of a controlled substance with intent to sell. The court instructed the jury that it could
convict the defendant if someone else was in possession of the drugs with intent to sell
and the defendant aided and abetted the crime.
instructed the jury that it could convict the defendant if someone else was in possession of the
drugs with intent to sell and the defendant aided and abetted the crime. The defendant
proposed the following instruction, which was refused: Mere presence at the scene of the
crime and knowledge that a crime is being committed are not sufficient to establish that the
defendant aided and abetted the crime, unless you find beyond a reasonable doubt that the
defendant is a participant and not merely a knowing spectator. Id. at 613, 747 P.2d at 894.
This court reversed the guilty verdict in Brooks because the failure to give this jury
instruction deprived the defendant of his right to have the jury instructed on his theory of the
case.
[Headnote 5]
Like Margetts' proposed instruction, the instruction proposed in Brooks is both the inverse
of an instruction that was given and a correct statement of the law. In both cases, the
proposed instructions do not say anything that one could not infer from instructions given.
Instead, they both instruct the jury that it may not convict if a specific element is lacking and
thereby explain the defense theories of their respective cases. Since the failure to give the
instruction was reversible error in Brooks, the same should be true here. This error, combined
with the prosecutor's improper closing argument are cumulative errors which require reversal
in this case.
Margetts makes additional assertions that the court erred by denying other jury instructions
that he proffered, and that he should have been permitted to argue to the jury about how this
conviction will impact Mr. Margetts' life. We conclude that these additional assertions have
no merit. The proposed instructions are merely alternatives to equivalent instructions that the
court had already given. The defense argument was a comment on sentencing, which is a
question for the court, not for the jury. See People v. Shannon, 305 P.2d 101 (Cal. 1956)
(instruction not to consider the penalty is a correct statement of law and is not prejudicial to
defendant).
Accordingly, we reverse the judgement of conviction and remand this case for a new trial.
The majority, citing Brooks v. State, 103 Nev. 611, 747 P.2d 893 (1987), asserts that the
failure of the trial court to instruct on the absence of an element of a crime is reversible error.
My colleagues, however, misapprehend the holding of that case. In Brooks, the defense
counsel proposed an instruction defining and limiting the theory of accomplice liability relied
upon by the prosecution. The trial court denied the proffered instruction, and this court
reversed on the grounds that the district judge's instructions to the jury did not
sufficiently cover the law applicable to the prosecution's theory.1 No such flaw can be
found in the instructions given at Margetts' trial.
this court reversed on the grounds that the district judge's instructions to the jury did not
sufficiently cover the law applicable to the prosecution's theory.
1
No such flaw can be found
in the instructions given at Margetts' trial.
The jury instructions in this case were carefully crafted by the trial court so as to delineate
and define the elements of the charged offenses and describe the State's burden of proof for
prosecuting these offenses. The instructions comprehensively cover the doctrine applicable to
the prosecution's legal theory.
In addition, embodied clearly in these instructions is the theory of defense instruction
requested by the appellant. Though the language differs slightly, the message is the same: the
State must prove beyond a reasonable doubt a concurrence of the forbidden act and the intent
to do the act; otherwise, the accused is entitled to a verdict of not guilty. This court has never
held that a defendant has the right to instruct the jury with language of his own choosing. To
so hold would reduce jury instructions to nothing more than a paraphrase of the defense
counsel's closing argument.
It is well established in our state that a defendant in a criminal case is entitled to have the
jury instructed on his theory of the case as disclosed by the evidence, no matter how weak or
incredible the evidence appears to be. Brooks v. State, 103 Nev. 611, 613, 747 P.2d 893, 894
(1987); Adler v. State, 95 Nev. 339, 594 P.2d 725 (1979). It is equally clear, however, that
the defendant is not entitled to misleading instructions, State v. Ferguson, 9 Nev. 106 (1874),
instructions that have been covered substantially in other instructions already given by the
court, State v. Logan, 59 Nev. 24, 83 P.2d 1035 (1938), or instructions that misstate the law,
Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957). In the case before us, the appellant's
proposed instruction was covered substantially in the trial court's instructions and, therefore,
the trial court committed no error by denying it.
Now standing alone, the error assigned to the improper comments made by the prosecutor
in closing argument is, as the majority suggests, harmless in view of the overwhelming
evidence against Margetts.
I would affirm the judgment of conviction entered by the district court.
__________

1
Brooks was charged with possession of a controlled substance with intent to sell, and the State sought to
convict on an aiding and abetting theory. The trial court instructed the jury that it could convict Brooks if
someone else was in possession with intent to sell, and Brooks aided and abetted the crime. The district judge
failed, however, to instruct the jury that mere presence is insufficient to support a conviction on the aiding and
abetting theory. The defense proffered an instruction containing this black letter principle, but it was denied.
____________
107 Nev. 622, 622 (1991) SNEA v. State, Emp. Sec. Dep't
STATE OF NEVADA EMPLOYEES ASSOCIATION, INC., a Nevada Corporation, LOUIS
H. ROBINSON, ELIZABETH L. AGASSI, ROBERT BYDALEK, STELLA M.
DOERR, JACK FENKELL, ELIZABETH A. HAM, CAROL W. HERNANDEZ,
MIRIAM LEWIS, MARNA B. LISTON, GERALDINE A. MURPHY, MITCHELL
B. PORTER, ROGER A. SCHOEN, ROBERT A. SCHULTZ, SALLY M.
TRUJILLO, CARMEN O. WILLIAMS, KATIE M. SCOTT, JUDY A. SCHAFFER
and JUDITH BUSCH, Appellants, v. STATE OF NEVADA, ex rel. ITS
EMPLOYMENT SECURITY DEPARTMENT, and STANLEY P. JONES, Executive
Director, in His Official and Individual Capacities, Respondents.
No. 21597
September 30, 1991 817 P.2d 708
Appeal from an order granting summary judgment. First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
Public employee's association, with a number of state employees, brought action claiming
that State was obligated to purchase credit for retirement services for all employees in any
agency required to reduce number of employees. The district court granted summary
judgment for the defendants and plaintiffs appealed. The supreme court held that the statute
providing that if state agency is required to reduce number of its employees it shall purchase
credit for service for any member who qualifies in the ways enumerated in the statute
obligates State to purchase credit only for terminated employees and does not require
purchase of credit for all members in agency subject to force reduction.
Affirmed.
Norah Ann McCoy, Carson City, for Appellants.
Crowell, Susich, Owen & Tackes, Carson City, for Respondents.
States.
Statute providing that if state agency is required to reduce number of its employees it shall purchase credit for service for any
member who qualifies in the ways enumerated in the statute obligates State to purchase credit only for terminated employees and does
not require purchase of credit for all members in agency subject to force reduction. NRS 286.3007, 286.3007, subd. 3.
OPINION
Per Curiam:
In this case, we are required to interpret NRS 286.3007 and particularly subsection 3 of
that statute, which states that [i]f a state agency is required to reduce the number of its
employees, it shall purchase credit for service pursuant to NRS 286.300 for any member
who qualifies in ways enumerated in the statute. The statute in question is set out in the
margin.
1

The State of Nevada Employees Association, Inc. (SNEA), together with a number of state
employees, brought an action against the state claiming that the term any member as used
in subsection 3 clearly obliges the state to purchase credit for retirement service for all
employees in any agency which is required to reduce the number of its employees, provided
that those employees meet the criteria of NRS 286.3007(3)(a)-(d).
SNEA's position is that any means all and that any member refers to all employees who
happen to be part of an agency which is subject to a reduction in force. On the contrary, the
state contends that any member means any affected member, that is to say, any member
who is subject to or victim of a reduction in force and who (a) Is eligible to purchase
credit; (b) Is eligible to retire or will be made eligible by the purchase of the credit; {c)
Agrees to retire upon completion of the purchase; and {d) Has been employed by the
agency for 5 or more years."
__________

1
NRS 286.3007 Purchase by state agency of credit for service:
Conditions.
1. A state agency shall pay the cost of purchasing credit for service pursuant to NRS 286.300 on
behalf of a member if:
(a) The agency entered into an agreement with the member under which the member was employed
upon the condition that the employer pay the cost of purchasing the credit; and
(b) The agreement to purchase the credit is in writing, becomes part of the personnel records of the
employee and is approved in advance by the state board of examiners.
2. If a state agency is required to purchase credit pursuant to subsection 1, it shall not do so until the
member has completed 1 year of service in its employ.
3. If a state agency is required to reduce the number of its employees, it shall purchase credit for
service pursuant to NRS 286.300 for any member who:
(a) Is eligible to purchase credit;
(b) Is eligible to retire or will be made eligible by the purchase of the credit;
(c) Agrees to retire upon the completion of the purchase; and
(d) Has been employed by the agency for 5 or more years.
4. If a state agency is required to purchase credit pursuant to subsection 3, it shall pay 5 percent of
the cost of purchasing the credit and an additional 5 percent of the cost for each year that the person has
been employed by the agency in excess of the minimum requirement of 5 years.
to retire or will be made eligible by the purchase of the credit; (c) Agrees to retire upon
completion of the purchase; and (d) Has been employed by the agency for 5 or more years.
NRS 286.3007(3).
Although it can be argued that any as used in this statute means all of the members in an
agency subject to force reduction, the only reasonable meaning under the circumstances is
that given to the word by Senator Raggio's statement during the pendency of this legislation.
Senator Raggio remarked that [he] looked upon the provision in question as a vehicle where
the state would buy enough service credit [for] the employee, if the state was terminating his
employment, for him to qualify.
In Senator Raggio's mind the state's obligation was restricted to any member that the state
was terminating. This is the way that we read the statute also. Just because the statute uses the
word any does not necessarily mean that all employees of a given agency are entitled to the
privilege created by the statute. There is no reason that can be derived from a reading of NRS
286.3007 why the necessary dismissal of one employee should trigger the granting of the
subject retirement right to all employees within an agency.
In effect, SNEA takes the position that any means all and that that ends the
controversy. In Midwest Livestock v. Griswold, 78 Nev. 358, 372 P.2d 689 (1962), this court
was convinced that upon reading all of the applicable legislation the term any person could
be read as any producer of livestock. In the present case the trial court read any member
in the same manner that Senator Raggio read it, that is to say, as any affected memberany
member who was subject to reduction-in-force termination. This is the reasonable and correct
interpretation of the statutory language; therefore, we affirm the judgment of the trial court.
In affirming the trial court's judgment, we affirm the judgment holding that plaintiffs are
entitled to no relief under their complaint based on their claimed contractual rights under
NRS 286.3007, that is to say, no members who are not themselves subject to termination are
entitled to the rights provided under the state statute. We also affirm the trial court's judgment
that plaintiffs are not entitled to retirement credit acquisition. We do not adopt the declaration
contained in paragraph 2 of the judgment as the declaration appears to go beyond the issues
litigated in this lawsuit.
____________
107 Nev. 625, 625 (1991) Bowyer v. Taack
LISA M. BOWYER, Appellant, v. THERESA ANNE TAACK, Respondent.
No. 21715
September 30, 1991 817 P.2d 1176
Appeal from an order of the district court awarding respondent attorney's fees and costs.
Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Plaintiff brought action against defendant arising out of automobile accident. Following a
jury trial, the district court entered judgment awarding plaintiff $10,500. Plaintiff's counsel
filed motions requesting costs, attorney's fees, and prejudgment interest. Court found that
plaintiff's judgment was less than offer of judgment and ordered plaintiff to pay defendant's
costs and attorney's fees. Plaintiff appealed. The supreme court held that: (1) if individuals
fail to secure judgment greater than previously tendered offer of judgment, they cannot seek
award of prejudgment interest under either court rule or statutory provision, and (2) under
either rules of civil procedure or statute, taxable costs, attorney fees, and prejudgment interest
should not be included as part of judgment to determine whether judgment is greater than
previously tendered offer of judgment, for purposes of award of attorney's fees.
Affirmed.
Allen A. Cap and Albert D. Massi, Las Vegas, for Appellant.
Pearson & Patton and Theodore J. Kurtz, Las Vegas, for Respondent.
1. Costs.
Plaintiff who recovers less than a defendant's offer of judgment is not entitled to recover attorney's fees. NRS 17.115, 17.115,
subd. 4, 18.010; NRCP 68.
2. Statutes.
If possible, it is supreme court's obligation to construe statutory provisions in such manner as to render them compatible.
3. Courts.
Apparent conflicts between court rule and statutory provision should be harmonized and both should be given effect if possible.
4. Interest.
If individuals fail to secure judgment greater than previously tendered offer of judgment, they cannot seek award of prejudgment
interest under either court rule or statutory provision. NRS 17.115; NRCP 68.
5. Costs.
Supreme court can construe provisions of offer of judgment NRCP as deemed appropriate; federal court interpretations of similar
federal rule are persuasive but not controlling. FRCP 68, 28 U.S.C.A.; NRCP 68.
6. Costs.
Under either NRCP or statute, taxable costs, attorney fees, and prejudgment interest should not be included as part of judgment to
determine whether judgment is greater than previously tendered offer of judgment, for purposes of award of attorney's fees. NRS
17.115, 17.115, subd. 5; NRCP 68.
OPINION
Per Curiam:
In this appeal, the court is asked to consider the effect of three statutes and whether the
district court properly applied these statutes in awarding respondent $7,673.50 in attorney's
fees and $5,240.00 in costs at the conclusion of the trial. For the following reasons, we affirm
the decision of the district court.
THE FACTS
On September 22, 1986, the appellant, Lisa Bowyer, and her sister, Theresa Taack, were
involved in an automobile accident. As a result of the accident, Lisa filed a complaint with
the district court naming Theresa as the defendant.
Prior to trial, Theresa served Lisa with an offer of judgment in the amount of $17,001.00.
The offer was rejected and trial was scheduled for April 30, 1990. At the conclusion of the
trial, the jury returned a verdict awarding Lisa $10,500.00 for her damages.
Lisa's counsel than filed motions request $12,236.54 in costs, attorney's fees, and
prejudgment interest. Theresa objected to this request and filed her own motion requesting
$12,913.50 for costs and attorney's fees. After hearing the litigants' arguments, the district
court concluded that Lisa's judgment was less than the offer of judgment tendered by Theresa
and ordered Lisa to pay Theresa's costs and attorney's fees. This appeal followed.
DISCUSSION
In her appeal, Lisa argues the district court erred when it awarded costs and attorney's fees
to Theresa. Specifically, Lisa asserts: (1) that she is entitled to attorney's fees pursuant to NRS
18.010 regardless of whether the judgment she received was less than the offer of judgment
tendered by Theresa; (2) that Theresa's offer of judgment is void in any event because it was
made pursuant to both NRCP 68 and NRS 17.115; and (3) that even if Theresa's offer of
judgment is not void, in deciding whether or not a party has obtained a more favorable
judgment than an offer of judgment, the court should include costs, prejudgment interest, and
attorney's fees as part of the judgment.
A.
[Headnote 1]
[T]he court may make an allowance of attorney's fees to a prevailing party . . . [w]hen he
has not recovered more than $20,000 . . . . NRS 18.010(2). Lisa argues she was the
prevailing party because she received $10,500.00 in damages from the jury. Therefore, Lisa
reasons that since she recovered less than $20,000.00, the district court should have granted
her request for attorney's fees, regardless of whether her judgment exceeded the offer of
judgment tendered by Theresa prior to trial. We disagree.
Lisa's position on this issue contravenes the provisions of NRS 17.115 and NRCP 68. NRS
17.115(4) states that [i]f the party to whom [an] offer of judgment is made fails to obtain a
more favorable judgment, he cannot recover . . . [c]osts or attorney's fees . . . . (Emphasis
added.) Similarly, NRCP 68 provides that [i]f the judgment finally obtained by the offeree is
not more favorable than the offer [of judgment], the offeree shall not recover costs, nor
attorneys' fees . . . . (Emphasis added.)
[Headnote 2]
If possible, it is the Nevada Supreme Court's obligation to construe statutory provisions in
such a manner as to render them compatible. Weston v. County of Lincoln, 98 Nev. 183, 185,
643 P.2d 1227, 1229 (1982). Therefore, we conclude that where litigants are precluded from
obtaining attorney's fees under NRS 17.115 or NRCP 68, they are likewise precluded from
recovering such fees under NRS 18.010.
B.
Next, Lisa points out that Theresa's offer of judgment was tendered pursuant to NRCP 68
and NRS 17.115. The provisions of NRCP 68 do not specifically address prejudgment
interest; however, under NRS 17.115, a litigant is precluded from recovering any
prejudgment interest that accrues from the filing date of the complaint through trial if the
litigant does not obtain a judgment greater than a previously tendered offer of judgment. See
NRS 17.115(4). The different treatment of prejudgment interest under NRCP 68 and NRS
17.115 underscores Lisa's contention that she was unable to ascertain whether she was risking
her prejudgment interest by rejecting Theresa's offer of judgment. Therefore, Lisa asks this
court to rule that whenever an offer of judgment is made pursuant to both NRCP 68 and NRS
17.115, the offer is ambiguous and void. We reject this attempt to polarize the rule of
procedure and the statute.
[Headnotes 3, 4]
Contrary to Lisa's analysis, apparent conflicts between a court rule and a statutory
provision should be harmonized and both should be given effect if possible.
rule and a statutory provision should be harmonized and both should be given effect if
possible. State v. Ryan, 691 P.2d 197, 206 (Wash. 1984). Since NRCP 68 is silent with
respect to prejudgment interest, it should be interpreted harmoniously with the more specific
provisions and legislative policy of NRS 17.115; thus, if individuals fail to secure a judgment
greater than a previously tendered offer of judgment, they cannot seek an award of
prejudgment interest under either NRCP 68 or NRS 17.115.
C.
Finally, Lisa fires another volley and asserts that she obtained a judgment greater than the
offer of judgment tendered by Theresa. In a rather circular analysis, Lisa contends her damage
award, prejudgment interest, costs, and attorney's fees are all part of her judgment.
1
Therefore, Lisa reasons that her judgment totals more than Theresa's offer of judgment. We
disagree.
1. The provisions of NRS 17.115(5). The provisions of NRS 17.115(5) outline what can be
included in a judgment when deciding whether the judgment is more favorable than an offer
of judgment. The provisions of NRS 17.115(5) state that [a]ny taxable costs, attorney's fees
and interest which is not derived from an interest-bearing obligation which may have been
awarded must not be considered to be part of the judgment when determining whether the
judgment was more favorable than the rejected offer. (Emphasis added.) Therefore, Lisa is
clearly incorrect when she argues that, pursuant to NRS 17.115, prejudgment interest, costs,
and attorney's fees should be included in her judgment to determine whether her judgment is
more favorable than Theresa's offer of judgment.
2. The provisions of NRCP 68. Unfortunately, NRCP 68 is not as specific as NRS
17.115(5). NRCP 68 merely states that [i]f the judgment finally obtained by the offeree is
not more favorable than the offer, the offeree shall not recover costs, nor attorneys' fees, but
shall pay the costs and attorneys' fees, if any be allowed, of the party making the offer from
the time of the offer. This disparity between NRS 17.115(5) and NRCP 68 is complicated by
federal court interpretations of Federal Rule of Civil Procedure 6S, a statute similar to NRCP
6S. See, e.g., Gorelangton v. City of Reno, 63S F.Supp. 1426 {D.Nev. 19S6).
3. Reconciling NRS 17.115 and NRCP 6S.
__________

1
Lisa asserts that prejudgment interest, costs, and attorney's fees should accrue from the date the complaint
is filed to the entry of judgment. If the court were to accept her analysis, Lisa's judgment would include the
$10,500.00 damage award plus $2,406.25 for prejudgment plus costs of $4,668.79 plus attorney's fees of
$5,162.50. Therefore, Lisa's judgment would equal $22,737.54. Ironically, under Lisa's analysis, however, she
would not be entitled to attorney's fees because her judgment, including attorney's fees, would exceed the
$20,000 statutory ceiling for attorney's fees under NRS 18.010(2).
Civil Procedure 68, a statute similar to NRCP 68. See, e.g., Gorelangton v. City of Reno, 638
F.Supp. 1426 (D.Nev. 1986).
3. Reconciling NRS 17.115 and NRCP 68. Since Theresa's offer of judgment was made
pursuant to NRS 17.115 and NRCP 68, Lisa argues NRS 17.115(5) should be ignored, and
pursuant to NRCP 68, her judgment should include prejudgment interest, costs, and attorney's
fees. Lisa argues this conclusion is warranted because of federal court interpretations of
Federal Rule of Civil Procedure 68 and because an offeree needs to be able to make an
informed decision regarding the consequences of accepting or rejecting an offer of judgment
made pursuant to NRCP 68 and NRS 17.115. We reject this analysis.
[Headnote 5]
First, this court can construe the provisions of NRCP 68 as it deems appropriate. Federal
court interpretations of Rule 68 of the Federal Rules of Civil Procedure are persuasive but not
controlling here. See Johnson By Johnson v. Svidergol, 757 P.2d 609, 611 (Ariz.Ct.App.
1988).
Further, we believe this court should avoid construing one of its rules of procedure and a
statute in a manner which creates a conflict or inconsistency between them. See United
Nuclear Corp. v. General Atomic Co., 560 P.2d 161, 164 (N.M. 1976). A fundamental rule
of statutory interpretation [footnote omitted] is that the unreasonableness of the result
produced by one among alternative possible interpretations of a statute is reason for rejecting
that interpretation in favor of another that would produce a reasonable result. Sheriff v.
Smith, 91 Nev. 729, 733, 542 P.2d 440, 443 (1975). See also Hughes Properties v. State of
Nevada, 100 Nev. 295, 298, 680 P.2d 970, 971 (1984). If this court were to interpret NRCP
68 such that this rule of procedure dramatically conflicts with NRS 17.115, the rule of
procedure would be rendered ineffectual and meaningless: defendants would merely disregard
NRCP 68 and tender all offers of judgment pursuant to NRS 17.115.
[Headnote 6]
Therefore, we conclude that the best way to resolve this issue is to construe NRCP 68 in a
manner that is consistent with the specific language and the legislative policy indicated in
NRS 17.115(5). We hold that under either NRCP 68 or NRS 17.115, taxable costs, attorney's
fees, and prejudgment interest should not be included as part of a judgment to determine
whether the judgment is greater than a previously tendered offer of judgment. The judgment
entered by the district court is affirmed.
_____________
107 Nev. 630, 630 (1991) Bing Constr. v. State, Dep't of Taxation
BING CONSTRUCTION COMPANY OF NEVADA, Appellant, v. NEVADA
DEPARTMENT OF TAXATION, Respondent.
No. 21866
September 30, 1991 817 P.2d 710
Appeal from an order of the district court dismissing appellant's petition for judicial
review. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
The supreme court held that statute, providing that no civil case could be filed in district
court unless initial pleading was accompanied by form (civil coversheet) signed by initiating
party or his representative, was not jurisdictional in nature, and date of district court's receipt
of initial pleading had to be considered date of filing for all purposes.
Jerry Collier Lane, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General and Jeffrey R. Rodefer, Deputy, Carson City, for
Respondent.
Clerks of Courts; Pleading.
Statute providing that no civil case may be filed in district court unless initial pleading is accompanied by form (civil coversheet)
signed by initiating party or his representative is not jurisdictional in nature; thus, when district court clerk received initial pleading in
any civil action and there is no coversheet the appropriate procedure is to stamp pleading with date on which it is received, retain
pleading, and inform party submitting pleading that it cannot be filed without civil coversheet, and date of receipt by clerk must be
considered date of filing for all purposes. NRS 3.275, subd. 1, 233B.130, subd. 2(c).
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing, on procedural grounds,
appellant's petition for judicial review. On August 21, 1990, the Department of Taxation
mailed to appellant a letter affirming the decision of its hearing officer. On August 23, 1990,
appellant received that letter. On September 21, 1990, appellant sent from Las Vegas, by
overnight Federal Express, his petition for Judicial Review to the court clerk for the First
Judicial District in Carson City. On September 22, 1990, at 10:27 a.m., the district court clerk
received the petition for judicial review. Because the petition was not accompanied by a civil
cover sheet as required by NRS 3.275, the court clerk did not file the petition.
not file the petition. Instead, on September 24, 1990, the district court clerk returned, by
regular mail, the petition for judicial review.
On September 27, 1990, appellant received the returned petition along with a letter from
the district court clerk explaining that a civil cover sheet was required. Also on September 27,
1990, appellant remailed, by overnight Federal Express, his petition for judicial review to the
district court clerk. On September 28, 1990, at 10:24 a.m., the district court clerk received
and filed the remailed petition.
On December 4, 1990, the state filed a motion in the district court to dismiss the petition
for judicial review on the ground that it was not timely filed. On December 21, 1990, the
district court entered its order dismissing the petition for judicial review. This appeal
followed.
Appellant contends that the district court erred in dismissing his petition. We agree. NRS
3.275(2) provides that [n]o civil case may be filed in the district court unless the initial
pleading is accompanied by the form [a civil cover sheet], signed by the initiating party or his
representative.
1
NRS 233B.130(2)(c) provides that petitions for judicial review must [b]e
filed within 30 days after service of the final decision of the agency. Accordingly, if NRS
3.275 and 233B.130 are read together in a very literal sense, a petitioner who submits a
petition for judicial review at the end of thirty days, but without a civil cover sheet, has not
perfected his right to judicial review and may never be able to do so. We are not convinced
that this is the intended result of these two statutes.
Such a literal and narrow reading of the statutes is a trap for the unwary. While NRS
233B.130 is jurisdictional in nature and is designed to place limits on the substantive rights of
parties to seek review in a civil action commenced before an agency, NRS 3.275 is clearly
designed to facilitate the gathering of data. There is no indication that NRS 3.275 was meant
to be jurisdictional, or to control the substantive rights of parties. Further, there is no
indication in chapter 233B of the NRS, or in any court rule, that a civil cover sheet is
required before an action challenging a determination entered pursuant to that chapter
may be commenced in district court.
__________

1
NRS 3.275 provides:
1. The clerk of each district court shall obtain and file information regarding the nature of each civil
case filed with the district court.
2. The clerk shall provide a form approved by the court administrator for obtaining the information
required by subsection 1. No civil case may be filed in the district court unless the initial pleading is
accompanied by the form, signed by the initiating party or his representative.
3. The clerk shall maintain the information contained in the form in a separate system of filing to
allow the retrieval of statistics relating to the number, nature and date of each civil action filed in the
district courts.
indication in chapter 233B of the NRS, or in any court rule, that a civil cover sheet is required
before an action challenging a determination entered pursuant to that chapter may be
commenced in district court. To deprive a party of substantive rights based on such a
technical dereliction would not advance the interest of justice, or serve the ends of the data
gathering statute.
Accordingly, we hold that NRS 3.275 is not jurisdictional in nature. Thus, when a district
court clerk receives the initial pleading in any civil action, and there is no cover sheet, the
appropriate procedure is to stamp the pleading with the date on which it is received, retain the
pleading, and inform the party submitting the pleading that it cannot be filed without a civil
cover sheet. The date of receipt must be considered the date of filing for all purposes.
This definition of the term filing has, in essence, already been adopted by this court for
notices of appeal, as well as petitions for post-conviction relief. See Huebner v. State, 107
Nev. 328 810 P.2d 1209 (1991) (treating a notice of appeal as if it were filed on the date of
submission); Glauner v. State, 107 Nev. 482, 813 P.2d 1001 (1991) (intimating that a petition
for post-conviction relief should be treated as filed on the date of submission). We note that
parties often have no control over the date a document is filed by the court clerk. The only
thing parties can really control is the date the document is received. When a document is
received in a timely manner, in substantially the correct form, the party should not be
precluded from a right of review. Accordingly, we vacate the order of the district court
dismissing appellant's petition for judicial review, and we remand this matter to the district
court for further proceedings.
____________
107 Nev. 632, 632 (1991) Jones v. State
DANIEL STEVEN JONES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21796
September 30, 1991 817 P.2d 1179
This is an appeal from a sentence of death by a three-judge panel after defendant Daniel
Steven Jones pled guilty to first degree murder. Eighth Judicial District Court, Clark County;
J. Charles Thompson, Judge.
Defendant was convicted on his plea of guilty of first degree murder with use of a deadly
weapon in the district court, and was sentenced to death after a penalty hearing before
three-judge panel. Defendant appealed. The supreme court held that; (1) prosecutorial
misconduct during closing arguments did not amount to reversible error; {2) State was
properly allowed to present witness testimony that defendant had committed two
murders in Florida; {3) sentencing panel acted within its discretion in finding three
aggravating circumstances and only one mitigating factor; {4) sentence of death was not
excessive considering the crime and the defendant; and {5) failure to order competency
examination was not erroneous.
107 Nev. 632, 633 (1991) Jones v. State
prosecutorial misconduct during closing arguments did not amount to reversible error; (2)
State was properly allowed to present witness testimony that defendant had committed two
murders in Florida; (3) sentencing panel acted within its discretion in finding three
aggravating circumstances and only one mitigating factor; (4) sentence of death was not
excessive considering the crime and the defendant; and (5) failure to order competency
examination was not erroneous.
Affirmed.
Moran & Weinstock, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and David Roger, Deputy District Attorney, Clark
1. Criminal Law.
Improper prosecutorial remarks during closing argument in capital murder prosecution did not require reversal where defendant
failed to object, there was overwhelming evidence of guilt and the offensive remarks did not contribute to the verdict.
2. Homicide.
Sentencing court did not err in allowing State to present evidence of torture and mutilation in murder prosecution; although State
presented evidence to support its assertion that the murder involved torture and mutilation, the sentencing court did not find torture and
mutilation to exist.
3. Homicide.
The decision to admit particular evidence during the penalty phase of a capital trial is within the sound discretion of the trial court.
4. Homicide.
Evidence of unrelated crimes for which a defendant has not been convicted is inadmissible during penalty phase in capital trial if it
is dubious or tenuous, or if its probative value is substantially outweighed by danger of unfair prejudice, confusion of issues,
misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. NRS 48.035.
5. Homicide.
District court did not abuse its discretion in allowing State, during penalty phase of capital trial, to present witness testimony of
two murders which occurred in Florida; prosecution presented significant, corroborated testimony of several witnesses indicating that
defendant killed a husband and wife while their teenage daughter was in the house.
6. Homicide.
Death penalty was not imposed under the influence of passion, prejudice or other arbitrary factors during sentencing by
three-judge panel; trial judges were presumed to know the law and apply it in making their decisions and to exclude consideration of
evidence not properly before the court.
107 Nev. 632, 634 (1991) Jones v. State
7. Homicide.
Evidence supported sentencing panel's finding as an aggravating factor that murder defendant was under sentence of imprisonment
when he committed murder, in light of evidence that defendant was in violation of parole when he committed murder. NRS 200.033,
subd. 1.
8. Homicide.
Three-judge sentencing panel in capital trial properly found that murder defendant was previously convicted of felony involving
use of threat or violence against a person of another based on defendant's conviction of aggravated assault for hitting his grandmother
over the head with a crowbar. NRS 200.033, subd. 2.
9. Homicide.
Evidence supported three-judge sentencing panel's finding as an aggravating factor in capital murder trial that defendant
committed the murder while in the commission of a robbery; defendant's former girlfriend implied that defendant told her he planned
to murder the victim in order to obtain mobile home, which was corroborated by documentary evidence of title transfer. NRS 200.033,
subd. 4.
10. Homicide.
Three-judge sentencing panel in capital trial did not abuse its discretion in finding as the only mitigating circumstance that
defendant was somewhat remorseful, not withstanding defendant's testimony that he had numerous problems at time of murder, was in
a serious mental state and was highly intoxicated, or that defense counsel had difficulty in obtaining material to refute allegations of
Florida murders.
11. Homicide.
Death penalty was not an excessive sentence for defendant convicted of first degree murder with use of a deadly weapon, who had
been previously convicted of aggravated assault for attempting to kill his grandmother by beating her with a crowbar and was in
violation of parole at time of murder, particularly in light of evidence that he had murdered two people in their house in Florida,
although he had not been charged with those murders. NRS 177.055, subd. 2(d).
12. Criminal Law.
Defendant's statement that he was in a sick mind and that his grandmother was satanic did not raise sufficient doubts as to his
competency to understand the proceedings against him to render the district court's failure to order a competency examination
erroneous.
OPINION
Per Curiam:
On October 13, 1989, appellant Daniel Steven Jones (Jones) was charged with murder
with use of a deadly weapon and robbery with use of a deadly weapon. On September 24,
1990, the date set for trial, Jones waived jury trial and pled guilty to First Degree Murder with
Use of a Deadly Weapon. Judge Gamble and Judge Breen were appointed to preside on the
three-judge sentencing panel with Judge Thompson. Witnesses' testimony indicated that
Jones shot and killed Donald Woody to obtain possession of Woody's motor home. Jones had
previously been convicted of aggravated assault for attempting to kill his grandmother by
hitting her over the head with a crowbar; and he was in violation of parole when he killed
Woody.
107 Nev. 632, 635 (1991) Jones v. State
been convicted of aggravated assault for attempting to kill his grandmother by hitting her
over the head with a crowbar; and he was in violation of parole when he killed Woody. The
State also presented evidence that Jones murdered two people in their home in Florida,
although he was not charged with these murders.
After a penalty hearing, the three-judge panel found the following aggravating
circumstances: (1) the murder was committed by a person previously convicted of a felony
involving the use of violence to another person; (2) the murder was committed by a person
under sentence of imprisonment; and (3) the murder was committed in the furtherance of a
robbery. The panel found one mitigating circumstance, that Jones was remorseful. Jones was
sentenced to death.
[Headnote 1]
Jones argues that there was prejudicial prosecutorial misconduct during closing argument.
We conclude that at least one of the prosecutor's comments was inappropriate.
1
However,
this court will not reverse a verdict on the basis of prosecutorial misconduct when the
defendant failed to object, there was overwhelming evidence of guilt, and the offensive
remarks did not contribute to the verdict. Pellegrini v. State, 104 Nev. 625, 628-629, 764 P.2d
484, 487 (1988). We find that all of these circumstances exist in this case.
[Headnote 2]
Next, Jones contends that the sentencing court erred in allowing the State to present
evidence of torture and mutilation. According to NRS 200.033(8), as construed by this court,
depravity of mind is an aggravating circumstance where the murder involves torture or
mutilation of the victim. The State presented evidence to support its assertion that this murder
involved torture and mutilation. Moreover, because the sentencing court did not find torture
and mutilation to exist, we concluded that this argument lacks merit.
[Headnotes 3-5]
Jones also maintains that the district court erred in allowing the State to present evidence
(witness testimony) of two murders which occurred in Florida. The decision to admit
particular evidence during the penalty phase of a capital case is within the sound discretion of
the trial court. Milligan v. State, 101 Nev. 627, 636, 708 P.2d 289, 295 (1985); NRS 48.035.
Evidence of unrelated crimes for which a defendant has not been convicted is inadmissible
during the penalty phase if it is dubious or tenuous, or if its probative value is substantially
outweighed by danger of unfair prejudice, confusion of issues, misleading the jury, undue
delay, waste of time, or needless presentation of cumulative evidence.
__________

1
Specifically, the prosecutor said, there's one place that this man belongs. He has wished for it. I wish it for
him as well.
107 Nev. 632, 636 (1991) Jones v. State
or if its probative value is substantially outweighed by danger of unfair prejudice, confusion
of issues, misleading the jury, undue delay, waste of time, or needless presentation of
cumulative evidence. NRS 48.035. Otherwise, the evidence is admissible as other matter
which the court deems relevant to sentence under NRS 175.552. Crump v. State, 102 Nev.
158, 160-161, 716 P.2d 1387, 1388-1389 (1986), cert. denied, 479 U.S. 871 (1986). We
conclude that the district court did not abuse its discretion in finding the evidence admissible.
The State presented significant, corroborated testimony of several witnesses, indicating that
Jones killed a husband and wife in Jacksonville, Florida, while their teenage daughter was in
the house.
[Headnote 6]
Next, Jones argues that the death penalty was imposed under the influence of passion,
prejudice, or other arbitrary factors. Specifically, Jones objects to the presentation of evidence
of the Florida murders and the prosecutor's misstatements during closing argument. We have
already determined that the Florida murders were properly admitted during the sentencing
phase. As to any prosecutorial misconduct, trial judges are presumed to know the law and to
apply it in making their decisions. Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047 (1990).
Because any evidence not properly before the court would not have been considered by the
judges in determining Jones' sentence, we conclude that Jones suffered no prejudice.
[Headnotes 7-9]
Jones also asserts that the sentencing panel erroneously found three aggravating
circumstances and only one mitigating factor. We conclude that the sentencing panel acted
within its authority in finding that Jones was under sentence of imprisonment when he
committed the murder. See Nevius v. State, 101 Nev. 238, 243, 699 P.2d 1053, 1056 (1985)
(although defendant had been granted parole, was placed in a transitional facility, and walked
away from facility, the court found that he was still under sentence of imprisonment at time of
murder); NRS 200.033(1). Also, the sentencing panel properly found that Jones was
previously convicted of a felony involving the use of threats or violence against the person of
another. NRS 200.033(2). Jones had been convicted of aggravated assault; to wit, hitting his
grandmother over the head with a crowbar. Finally, there is evidence to support the panel's
finding that Jones committed the murder while in the commission of a robbery. NRS
200.033(4). Martha Kincaid, Jones' former girlfriend, testified that Jones told her he planned
to murder Woody (the victim) in order to obtain his motor home.
107 Nev. 632, 637 (1991) Jones v. State
motor home. Detective Donald Dibble testified that, in the driver's compartment of the
vehicle, he found a notebook which contained a handwritten bill of sale transferring title from
Woody to Jones, dated July 3, with no year. However, Jones told Dibble that he bought the
motor home from a man named John in mid-July 1989, for $500. Furthermore, Devin
Arguello, a car dealer in Reno, testified that in June of 1989, Jones came to where he worked
and told him he would be back after he picked up his motor home which had cost him about
$36,000. However, when he returned, he was driving an old motor home, which had
apparently been spray painted and was worth about $7,000. The authorities determined that
the vehicle belonged to Woody.
[Headnote 10]
The sentencing panel also did not abuse its discretion in finding only one mitigating
circumstance, that Jones was somewhat remorseful. Although Jones submits that he had
numerous problems at the time of the murder, he was in a serious mental state and was
highly intoxicated, the panel was free to disregard any of Jones' self-serving statements. As to
the fact that Jones' counsel had difficulty in obtaining material to refute the allegations of the
Florida murders, we conclude that the panel heard Steven Dahl's testimony and was within its
authority in deciding that the defense's inability to obtain the material was not a mitigating
circumstance.
[Headnote 11]
Next, Jones contends that he received a sentence excessive for the crime charged. NRS
177.055(2)(d) mandates a review as to whether the sentence of death was excessive,
considering both the crime and the defendant. Considering the egregiousness of the killing
and the number of crimes Jones has committed during his life, we conclude that the sentence
was not excessive or disproportionate to the crime. See Crump, 102 Nev. at 162, 716 P.2d at
1389 (1986).
[Headnote 12]
Finally, Jones argues that the district court erred in failing to have a psychiatrist examine
him to determine his competence at both the guilt and penalty phase of this case. NRS
178.405 provides that if doubt arises as to the competence of the defendant, the court shall
suspend the pronouncement of the judgment until the question of competence is determined.
The test to be applied in determining competency is whether the defendant has sufficient
present ability to consult with his lawyer with a reasonable degree of rational understanding,
and whether he has a rational and factual understanding of the proceedings against him.
107 Nev. 632, 638 (1991) Jones v. State
Melchor-Gloria v. State, 99 Nev. 174, 178-180, 660 P.2d 109, 113 (1983). However, in the
absence of reasonable doubt as to a defendant's competence, the district judge is not required
to order a competency examination. Martin v. State, 96 Nev. 324, 325, 608 P.2d 502, 503
(1980). Although Jones stated that he was in a sick mind and that his grandmother was
satanic, we conclude that the district court's failure to order a competency examination was
not erroneous.
Accordingly, we affirm the sentence of death.
____________
107 Nev. 638, 638 (1991) Brockett v. State
RANDY ALLEN BROCKETT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21407
September 30, 1991 817 P.2d 1183
Appeal from a judgment of conviction of one count of driving under the influence of
alcohol, a felony. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Defendant was convicted in the district court of driving under the influence, third offense,
and he appealed. The supreme court, Steffen, J., held that: (1) statute permitting involuntary
blood test of defendant with prior violation of driving under the influence statute did not
permit such test to be given to defendant with prior California driving under the influence
convictions, but (2) police officer's error in directing involuntary blood draw from defendant
who had prior California driving under the influence conviction did not require suppression
of blood test results.
Affirmed.
Rose and Young, JJ., dissented.
John W. Aebi, Carson City, for Appellant.
and Eric Hoshizaki, Deputy District Attorney, Carson City, for Respondent.
1. Automobiles.
Statute permitting involuntary blood test of defendant with prior violation of driving under the influence statute did not permit
such test to be given to defendant with prior out-of-state driving under the influence conviction. NRS 484.379, 484.3792, subd. 7,
484.383, subds. 8, 8(b).
2. Automobiles.
Police officer's error in directing involuntary blood draw from defendant who had prior out-of-state driving under the influence
conviction did not require suppression of blood test results, absent indication that officer was acting in bad
faith or deliberately violating law when he directed forced blood draw.
tion did not require suppression of blood test results, absent indication that officer was acting in bad faith or deliberately violating law
when he directed forced blood draw. NRS 484.379, 484.3792, subd. 7, 484.383, subds. 8, 8(b).
OPINION
This is an appeal from a judgment of conviction, entered pursuant to a bench trial, of one
count of driving under the influence, third offense. On March 12, 1989, Officer Steve
Schuette observed a vehicle weaving from the left to the right lane on Carson Street in Carson
City. Officer Schuette stopped the vehicle and approached the driver. The driver identified
himself as appellant, Randy Allen Brockett. Officer Schuette noticed that Brockett had a
strong odor of alcohol on his breath, his eyes were bloodshot, and he had slurred speech.
Brockett swayed as he stood speaking to Officer Schuette.
Officer Schuette administered several field sobriety tests on Brockett, which he failed.
Officer Schuette then arrested Brockett and informed him of his responsibility to submit to an
evidentiary test. When Brockett did not respond, Officer Schuette took his silence to be a
refusal.
The police dispatcher informed Officer Schuette that Brockett had a prior 1987 conviction
for DUI. The dispatcher did not specify, however, the state in which Brockett had received his
conviction. Based upon this information. Officer Schuette informed Brockett that he would
have to give a blood sample despite his earlier refusal.
Officer Schuette placed Brockett in his patrol car and transported him to the Carson-Tahoe
Hospital. At the hospital Officer Schuette again asked Brockett if he would voluntarily submit
to a test, and Brockett again failed to answer. Officer Schuette then learned that Brockett's
prior DUI conviction was sustained in California. Believing that a prior California DUI
conviction nonetheless supplied grounds for an involuntary blood test, Officer Schuette
directed that a forced blood withdrawal be taken from Brockett's arm. Brockett's
blood-alcohol level proved to be 0.198 percent.
Brockett later moved to suppress evidence of the forced blood draw. The district court
denied his motion. Following a bench trial, Brockett was found guilty of the crime of driving
with 0.10 percent or more by weight of alcohol in the blood. See NRS 484.379. Because this
was his third offense, the district court sentenced him to serve a term of one year in the
Nevada State Prison and imposed a fine in the amount of $2,000.
Prison and imposed a fine in the amount of $2,000. See NRS 484.3792(1)(c).
Brockett contends on appeal that his forced blood draw was illegal and, consequently, the
district court should have suppressed evidence of appellant's blood-alcohol level. At the time
of Brockett's arrest, NRS 484.383(8) (emphasis added) provided as follows:
If a person to be tested fails to submit to a required test as directed by a police officer
under this section, none may be given, except that if the officer has reasonable cause to
believe that the person to be tested was driving or in actual physical control of a motor
vehicle while under the influence of intoxicating liquor or a controlled substance, and
that the person:
. . . .
(b) Has been convicted of a violation of NRS 484.379[
1
] within the previous 7
years, the officer may direct that reasonable force be used to the extent necessary to
obtain a sample of blood from the person to be tested.[
2
]
[Headnote 1]
We conclude that NRS 484.383(8)(b) did not authorize the forcible taking of Brockett's
blood. Because Brockett had only sustained prior California DUI convictions, he had not been
convicted of a violation of NRS 484.379. The statute therefore required that no test be
given. Nevertheless, it does not necessarily follow that the evidence should have been
excluded from trial. We conclude that the district court correctly refused to exclude the
evidence.
[Headnote 2]
We first note that no statute requires the exclusion of evidence taken in violation of NRS
484.383(8). There is no indication in the record that Officer Schuette was acting in bad faith
or deliberately violating the law when he directed the forced blood draw. He testified that he
had been trained that a forced blood draw could be taken from a person who had sustained a
previous DUI conviction, regardless of the state in which the conviction was sustained.
__________

1
NRS 484.379 provides that [i]t is unlawful for any person who . . . [i]s under the influence of intoxicating
liquor; or . . . [h]as 0.10 percent or more by weight of alcohol in his blood, to drive or be in actual physical
control of a vehicle . . . .

2
NRS 484.379(8)(b) has since been amended to provide that an officer may use reasonable force to obtain a
sample of blood when the person has previously been convicted of an offense, as defined in subsection 7 of
NRS 484.3792. NRS 484.3792(7) defines an offense as a violation of NRS 484.379 . . . or the violation of a
law of another jurisdiction which prohibits the same or similar conduct.
sustained. Although this construction of the statute is incorrect, it was not an unreasonable
interpretation of the statute. Many district attorneys and law enforcement officers construed
the phrase [h]as been convicted of a violation of NRS 484.379 to include any DUI violation
in any state and, although the language of the statute was ill chosen, it is likely that the
legislature intended the statute to be so construed. Indeed, as noted above, NRS 484.383(8)(b)
has been amended and would now allow a forced blood draw to be taken in the circumstances
of this case. Although Officer Schuette erred in directing the blood draw, we conclude that no
public policy would be served by excluding the evidence from trial. Thus, the district court
properly admitted the evidence of appellant's blood-alcohol level.
Accordingly, we affirm the district court's judgment of conviction.
3

Mowbray, C. J., concurs.
Springer, J., concurring in the judgment:
I agree with the majority that the results of Brockett's blood test were properly considered
by the factfinder, but I disagree with the majority as to why. The majority states that the
results of the blood test were admissible because the police officer acted in good faith and did
not deliberately violat[e] the law. In my view, however, the true basis for admission of the
evidence is not the officer's good faith, but, rather, his substantial compliance with
Nevada law. Under NRS 484.389(2), a court or hearing officer may not exclude evidence of
a required test . . . if the police officer substantially complied with the provisions of NRS
484.382 to 484.393, inclusive. (My emphasis.)
As we noted in State, Dep't of Mtr. Vehicles v. Kinkade, 107 Nev. 257, 810 P.2d 1201
(1991), the provisions of NRS 484.382 to 484.393 contain some very technical
requirements. Here, it is clear that Officer Schuette complied with all but one of these
requirements: he violated NRS 484.383(8)(b) by taking a forced blood draw from a suspect
who had a previous DUI conviction from a state other than Nevada. Because Officer Schuette
substantially complied with the statutory provisions in this manner, admission of the results
of the blood test was required under NRS 484.389(2). Accordingly, I agree with the majority
that the ruling of the district court must be affirmed.
Rose, J., with whom Young, J., agrees, dissenting:
The forced withdrawal of blood from Randy Allen Brockett {Brockett) was in direct
violation of NRS 4S4.3S3{S) which permits such a forced withdrawal only if the
intoxicated driver had been convicted of a prior violation of NRS 4S4.379, a Nevada DUI
violation.
__________

3
We have reviewed Brockett's remaining contention and have determined that it is without merit.
(Brockett) was in direct violation of NRS 484.383(8) which permits such a forced withdrawal
only if the intoxicated driver had been convicted of a prior violation of NRS 484.379, a
Nevada DUI violation. Since Brockett had prior California DUIs, this forced taking of blood
was improper, as the majority opinion has already concluded. I differ, however, with the
majority because I do not think the evidence, obtained in direct violation of Nevada law,
should have been admitted in evidence and the sole basis for the conviction.
If the statute in question was ambiguous or if the officer had relied on authority that
appeared to permit his or her action, I would give the benefit of the doubt to the police
officer. But when the law is clear and unambiguous, evidence obtained in direct violation of
it, and without additional supportive evidence, should not be admitted at trial.
Evidence was presented that Brockett appeared intoxicated, but the trial court found that
his guilt was established only by the blood alcohol test result, and apparently rejected the
other evidence of intoxication. Since I believe the evidence of the blood test results should
not have been admitted and this was the only evidence upon which the district court based its
decision, I would reluctantly reverse this conviction.
____________
107 Nev. 642, 642 (1991) Young v. District Court
NATHAN TOD YOUNG, Chief Deputy Nevada State Public Defender, Petitioner, v. THE
NINTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND
FOR THE COUNTY OF DOUGLAS and THE HONORABLE DAVID R.
GAMBLE, DISTRICT JUDGE, Respondents.
No. 21658
September 30, 1991 818 P.2d 844
Original petition for writ of mandamus or, alternatively, prohibition; Ninth Judicial
District Court, Douglas County; David R. Gamble, Judge.
Chief deputy public defender brought mandamus proceeding seeking relief from order
imposing sanctions of $250 on the public defender for filing pretrial motion to strike state's
request for death penalty without making prima facie case as to improper political reasons or
that the decision improperly accorded to victim's husband's wishes. The supreme court held
that failure of counsel to make prima facie case of prosecutor's alleged improper political
purposes warrants $250 sanction.
Writ denied.
[Rehearing denied December 23, 1991] Terri Steik Roeser, State Public Defender, Janet
S.
Terri Steik Roeser, State Public Defender, Janet S. Bessemer, Chief Appellate Deputy,
Carson City, for Petitioner.
Scott Doyle, District Attorney, Douglas County, for Respondents.
Frankie Sue Del Papa, Attorney General, and Brooke A. Neilsen, Assistant Attorney
General, Carson City, for Amicus Curiae Nevada Attorney General.
David McElhinney, Reno, and Arthur B. LaFrance, Portland, Oregon, for Amicus Curiae
The National Legal Aid and Defender Association.
Annabelle Whitting Hall, Reno, and Margery B. Koosed, Akron, Ohio, for Amicus Curiae
National Association of Criminal Defense Lawyers.
Supreme court may exercise independent judgment and review record de novo when reviewing findings of disciplinary nature.
District court's power to sanction defense counsel in capital murder case derived from inherent powers of trial court to control
proceedings before it.
Under inherent power doctrine, courts have jurisdiction to impose sanctions on attorneys, even in criminal cases. SCR 39, 99,
subd. 2.
4. Courts.
Evidence in original writ proceeding seeking relief from sanctions failed to support allegation of counsel for capital defendant that
there was improper deference to wishes of victim's husband without independent decision making on part of prosecutor's office in
seeking imposition of death penalty; evidence indicated that it was consistent policy of prosecutor to consult with victims and their
survivors in assessing, along with other factors, course of prosecution. NRS 200.030, 200,033, subs. 4-6.
5. Courts.
Evidence in original writ proceeding seeking relief from sanctions failed to establish prima facie case of political motivation in
prosecutor's seeking imposition of death penalty in capital case, notwithstanding prosecutor's election rhetoric concerning stance that
was tough on crime; standing alone, the rhetoric was not sufficient to support innuendo of politically motivated prosecution.
In order to establish prima facie case of improper political purpose in requesting imposition of death penalty, defense counsel must
be prepared to offer substantial supportive evidence, such as actual statement to third party.
Attorney's duty to defend his or her clients fully, vigorously, and even with arguments which might be offensive, is particularly
true in criminal cases, where clients' liberties are at stake, and where adequacy of attorney's representation
can raise constitutional issues.
criminal cases, where clients' liberties are at stake, and where adequacy of attorneys' representation can raise constitutional issues.
Defense counsel alleging a prosecutor's improper political purpose in seeking death penalty must present prima facie evidence of
the improper political purposes or face possible sanction.
9. Criminal Law.
Political motivation is not per se a legal basis for challenging propriety of prosecutor's determination to seek death penalty against
criminal defendant, but rather, preeminent concern is whether prosecutor has substantial evidence of aggravating circumstances that
would qualify defendant for capital status.
Filing of pretrial motion to strike state's request for death penalty in murder trial on basis of allegations that death penalty was
being sought by district attorney for political reasons or as result of decision improperly according to wishes of victim's husband
warrants $250 sanction; defense counsel failed to provide prima facie evidence to support the allegations.
OPINION
Per Curiam:
In this original writ proceeding, petitioner seeks relief from an order issued by the district
court imposing sanctions in the amount of $250 on petitioner, a chief deputy public defender.
Petitioner filed a pretrial motion to strike the State's request for the death penalty in a murder
trial. Alleging that the death penalty was being sought by the district attorney for political
reasons or as a result of a decision improperly accorded to the victim's husband, petitioner
requests that the order imposing sanctions be vacated or declared unenforceable. The district
court imposed sanctions after determining that no evidential support existed for petitioner's
motion to strike. Despite our sensitivity to the necessary latitude defense counsel must have
in representing criminal defendants, especially in capital cases, we conclude that the district
court's discretion was properly exercised in the instant matter. We therefore reject petitioner's
request.
Background
At the time of the pretrial motions, Douglas County District Attorney Brent Kolvet,
representing the State, was engaged in a vigorous campaign for re-election. Petitioner's client,
John Alden Colwell, was charged with murder with the use of a deadly weapon, kidnapping,
and robbery with the use of a deadly weapon. The murder of the petite 52-year-old real estate
agent who answered a call to show a vacant house in California, and whose lifeless body was
discovered thereafter in Nevada, attracted widespread attention in the press.
attracted widespread attention in the press. Petitioner attempted to establish that prosecutions
handled personally by Mr. Kolvet were unusual outside of the political season.
In a pretrial maneuver, petitioner filed a motion to strike the State's notice of intent to seek
the death penalty. In the alternative, the motion requested that Mr. Kolvet be disqualified.
Included as an exhibit to the motion was one of Mr. Kolvet's election advertisements
promising to be tough on crime.
At the time of the defense motion, plea negotiations between prosecution and defense were
nonexistent. Petitioner, and the office he represents, were apparently distressed that Colwell
had not been offered plea negotiations since before the preliminary hearing.
1
In opposing the
motion to strike, the district attorney asked the district court to sanction Mr. Young for
attempting to embarrass the district attorney's office into settling the case. A deputy district
attorney was present when petitioner and the district attorney discussed plea negotiations at a
chance meeting at the Douglas County Judicial Building law library. The deputy district
attorney submitted an affidavit averring that petitioner threatened that unless Mr. Kolvet
acquiesced in the offered negotiations, the motion to strike the notice to seek the death
penalty would be filed.
2

At the hearing on the motion, Mr. Young called several witnesses. Two justice court clerks
testified that Mr. Kolvet appeared only for real important, big cases. Public Defender Terri
Steik Roeser testified for petitioner. Ms. Roeser testified that what makes it political is the
few number of cases [Mr. Kolvet personally undertook]. I don't have to run for office so I
have no motivation to have my name in the paper, to take a certain position on a case."
__________

1
This conclusion may be reasonably inferred from the hearing testimony of Terri Steik Roeser, Nevada State
Public Defender.

2
The U.S. Supreme Court has stated that a defendant does not have a constitutional right to plea bargain.
Weatherford v. Bursey, 429 U.S. 545, 561 (1977). Plea bargaining flows from the mutuality of advantage' to
defendants and prosecution, each with his own reasons for wanting to avoid trial. Bordenkircher v. Hayes, 434
U.S. 357, 363 (1978) (quoting Brady v. United States, 397 U.S. 742, 752 (1970)), reh'g denied, 435 U.S. 918
(1978). Petitioner has attempted to draw a parallel between defense plea bargain tactics and the prosecutorial
tactic of overcharging as a means of compromising an offense at an acceptable level. The not uncommon
practice of overcharging such as where the prosecutor files a felony charge which is supported by the evidence
in the hope of inducing a plea to a misdemeanor when, as a matter of general prosecutive policy, the case would
actually be tried only on a misdemeanor charge is somewhat controversial. See 2 W. LaFave & J. Israel,
Criminal Procedure 20.3(c) (1984 & Supp. 1991). Such an analogy may be misguided. Although the U.S.
Supreme Court has never held this practice unconstitutional, there is a division of opinion as to whether this
charging practice is ethical and proper. Bordenkircher, 434 U.S. at 368 n.2 (Blackmun, J., dissenting).
certain position on a case. On cross-examination, Ms. Roeser stated, however, that she could
not determine the extent to which information from the district attorney's office was
voluntarily provided to the press or generated by inquiries emanating from the press itself.
3

After the hearing, the district court promptly denied the defense motion, ruling that zero
had been proven. The court also found that the motion was filed in bad faith and for an
improper purpose. Sanctions were imposed against Mr. Young in the amount of $250,
payable to the clerk of the court. Amici argue strenuously that sanctioning defense counsel
would have a chilling effect on the death penalty bar.
4

Discussion
[Headnote 1]
This court may exercise an independent judgment and review the record de novo when
reviewing findings of a disciplinary nature. Gentile v. State Bar, 106 Nev. 60, 62, 787 P.2d
386, 387 (1990), overruled on other grounds,
------
U.S.
------
, 111 S.Ct. 2720 (1991).
[Headnote 2]
We agree with the district court that the power to sanction defense counsel in the instant
case derived from the inherent powers of a trial court to control proceedings before it. It has
been cogently stated that [a] trial judge is under a duty, in order to protect the integrity of the
trial, to take prompt and affirmative action to stop . . . professional misconduct. United
States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring).
In the federal system, the inherent powers of the courts have been described as those which
are necessary to the exercise of all others.' Roadway Express, Inc. v. Piper, 447 U.S. 752,
764 (1980) (quoting United States v. Hudson, 7 Cranch 32, 34 (1812)). The Supreme court
has recognized the inherent power of a court to levy sanctions in response to abusive
litigation practices. Id. at 765. The power of a court over members of its bar is at least as
great as its authority over litigants. Id. at 766.
__________

3
One press clipping in the record on appeal reproduces a surveillance photograph taken of Colwell at an
automatic teller machine when he attempted to access his victim's account. At this point, the police were
legitimately trying to identify and locate an unknown suspect.

4
We have found useful in our analysis the thorough amicus curiae brief in support of petitioner from the
National Legal Aid and Defender Association, reflecting the research of Professor Arthur B. LaFrance and
student counsel, James Clark, Nanci Klinger and Ann Palmer, of Lewis & Clark Law School; we also
appreciated the amicus curiae brief of the National Association of Criminal Defense Lawyers.
[Headnote 3]
Under the inherent power doctrine, Nevada courts have jurisdiction to impose sanctions on
attorneys even in criminal cases. SCR 39;
5
SCR 99(2).
6
Because we have concluded that
the inherent disciplinary authority of the district courts constitutes the proper jurisdictional
basis for the imposition of sanctions in the instant case, we elect not to address the suggestion
that NRCP 11 is applicable to criminal cases.
[Headnote 4]
Having concluded that the district court possesses the inherent authority to impose
sanctions against counsel on either side of the adversarial fence in criminal cases, we turn
now to the substance of the record in reviewing the propriety of the sanctions imposed against
Mr. Young. The record reflects no basis for concluding that the district attorney did not
conscientiously follow the statutory guidelines for imposition of the death penalty as provided
under NRS 200.030 and NRS 200.033.
7
Moreover, the allegation that the death penalty was
filed at the behest of the victim's husband was credibly rebutted by Mr. Kolvet, who stated
that it has been a consistent policy of his office to consult with victims and their survivors in
assessing, along with other factors, a course of prosecution. The record does not support the
accusation that there was improper deference to the husband's wishes without
independent decision-making on the part of the prosecutor's office.
__________

5
Supreme Court Rule No. 39 provides as follows:
Attorneys being court officers and essential aids in the administration of justice, the government of
the legal profession is a judicial function. Authority to admit to practice and to discipline is inherent and
exclusive in the courts. The supreme court rules set forth in this Part III are the exclusive rules for the
governing of the legal profession in Nevada.

6
Supreme Court Rule No. 99(2) provides:
Nothing contained in these rules denies any court the power to maintain control over proceedings
conducted before it, such as the power of contempt, nor do these rules prohibit any association from
censuring, suspending, or expelling its members.

7
The State explained, and we agree, that there was sufficient basis in fact in the record to file a notice
requesting the death penalty under the statutory requirements of NRS 200.033(4), (5) and (6) which state:
4. 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, invasion of the home or kidnaping 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.
5. The murder was committed to avoid or prevent a lawful arrest or to effect an escape from custody.
6. The murder was committed by a person, for himself or another, to receive money or any other
thing of monetary value.
that there was improper deference to the husband's wishes without independent
decision-making on the part of the prosecutor's office. See State v. McDonnell, 794 P.2d 780,
784 (Or. 1990).
[Headnote 5]
After careful review of all aspects of the record before us, we cannot agree that petitioner
established a prima facie case of improper political motivation. There is simply no credible
basis for concluding that prosecutorial discretion resulted from improper motive or an
unjustifiable and arbitrary classification. See Zant v. Stephens, 462 U.S. 862, 878-79 (1983).
[Headnote 6]
The prosecutor's election rhetoric concerning a stance that is tough on crime is neither
unethical nor surprising given a prosecutor's responsibility to enforce the criminal laws of the
state. Standing alone, it is singularly insufficient to support an innuendo of politically
motivated prosecution. Moreover, an important aspect of the over-all supervisory and
administrative responsibilities of the public prosecutor is the official prerogative to decide
which cases he or she will personally address or prosecute. Petitioner attempted to suggest an
improper prosecutorial purpose by juxtaposition of inferences and attenuated circumstantial
evidence. The effort was clearly insufficient as a matter of law. In order to establish a prima
facie case of improper political purpose in requesting imposition of the death penalty, defense
counsel must be prepared to offer substantial supportive evidence such as an actual statement
to a third party.
8
Without a sufficient evidential foundation, such a charge is demeaning to
the criminal justice system in general, and to the processing of capital cases in particular, as
an already complex and extended procedure is further encumbered by delay attributable to
groundless political accusations requiring time-consuming inquiries into collateral issues.
We are fully cognizant of the vigorous, diligent advocacy demanded of defense counsel in
representing capital defendants in accordance with their sixth amendment, fundamental rights
to a fair trial. See Strickland v. Washington, 466 U.S. 668, 684 (1984). Standard 4-1.2(c) of
the ABA Standards for Criminal Justice (3rd ed. 1991), states:
Since the death penalty differs from other criminal penalties in its finality, defense
counsel in a capital case should respond to this difference by making extraordinary
efforts on behalf of the accused.
__________

8
For the district court hearing, Mr. Young obtained affidavits from criminal defense attorneys around the
country which stated in theory that an allegation of political motivation by the State in demanding the death
penalty was proper.
Approved on Feb. 11, 1991, 49 Crim. L. Rep. (BNA) 2014. We are in complete accord with
the quoted standard.
[Headnote 7]
Moreover, we view with approval the court's description of an attorney's duty to defend his
or her clients fully, vigorously, and even with arguments which might be offensive or
ultimately unsuccessful. This is particularly true in criminal cases, where the clients' liberties
are at stake, and where the adequacy of the attorneys' representation can raise constitutional
issues. In re Order to Show Cause, 741 F.Supp. 1379, 1381 (N.D.Cal. 1990). The U.S.
Supreme Court has stated that the adversarial process protected by the Sixth Amendment
requires that the accused have counsel acting in the role of an advocate.' United States v.
Cronic, 466 U.S. 648, 656 (1984) (quoting Anders v. California, 386 U.S. 738, 743 (1967)).
Capital cases most often generate public opprobrium which may frequently extend to
defense counsel, many of whom are appointed and modestly compensated for their efforts.
Moreover, as noted by amici, often defense counsel's role in criminal cases is differentiated
from that in civil cases by the paucity of discovery. Lawyers in criminal cases are
necessities, not luxuries.' Cronic, 466 U.S. at 653 (quoting Gideon v. Wainwright, 372 U.S.
335, 344 (1963)). Defense counsel assumes a vital role in the preservation of a constitutional
system of criminal justice that guarantees fundamental fairness to defendants who stand in
jeopardy of losing life, liberty or property. Courts must be vigilant in assuring that a
defendant's right to effective counsel is not unduly circumscribed by judicial constraints that
deny counsel ample latitude to fairly and effectively pursue and present the client's legal
defenses. Indeed, the constitutional right of a criminal defendant to effective counsel is of
such a magnitude that challenges to counsel's effectiveness has become a common issue both
before the trial courts and on appeal. It would be injudicious to contend, however, that an
accused's constitutional right to effective assistance of counsel has no limitations. Illustrative
of the point is the holding in Nix v. Whiteside, 475 U.S. 157 (1986), that the sixth
amendment right of a criminal defendant to effective assistance of counsel is not violated
when an attorney refuses to cooperate with the defendant in presenting perjured testimony. Id.
at 174-75. Nor is the right violated or attenuated by restricting defense counsel's latitude in
impugning and maligning, without an evidentiary basis, a prosecutor's decision to seek the
death penalty.
[Headnote 8]
We are not persuaded that requiring prima facie evidence of a prosecutor's improper
political purpose in seeking the death penalty will impermissibly chill the high level of
advocacy expected from the death penalty bar.9 The evidentiary threshold for challenging
a state prosecutor's motivation in requesting the death penalty must be more than
intuition and tantalizing innuendo.
penalty will impermissibly chill the high level of advocacy expected from the death penalty
bar.
9
The evidentiary threshold for challenging a state prosecutor's motivation in requesting
the death penalty must be more than intuition and tantalizing innuendo. Criminal defendants
and their lawyers must abide by the rules that apply to other litigants. See Maness v. Meyers,
419 U.S. 449, 458-60 (1975). Capital defense does not insulate counsel from sanctions
imposed for patently nonmeritorious motions.
[Headnote 9]
As a matter of sound judicial policy, we are unable to countenance delay occasioned by
motions filed by capital counsel assigning, without prima facie evidence, improper political
motives to state prosecutors who elect to seek the ultimate penalty. Nevada's attorney general
and district attorneys are elected public officials who are part of the political process. It is
unrealistic to expect that a degree of political consideration may not impact a prosecutor's
decision concerning the prosecutorial course to follow in high profile cases. Moreover, we do
not view political motivation per se as a legal basis for challenging the propriety of a
prosecutor's determination to seek the death penalty against a criminal defendant. Of
preeminent concern is whether the prosecutor has substantial evidence of aggravating
circumstances that would qualify a defendant for capital status.
[Headnote 10]
Although we have concluded that the instant record justifies the action taken by the district
court in imposing sanctions against Mr. Young for interjecting groundless delay in a matter of
substantial importance, we continue to expect that our trial judges will exercise
circumspection in the imposition of such sanctions in death cases. Our concern over the
prospect of chilling or unduly temporizing ethical representation by counsel will inevitably
trigger a heightened appellate concern and scrutiny when a trial court imposes monetary
sanctions on counsel for a client facing the death penalty.
For the reasons discussed above, petitioner's request for relief in the form of a writ of
mandamus or prohibition is denied.
10

__________

9
In the civil rule 11 context, such an effect has been a concern to legal commentators who feared the rule
would chill' vigorous advocacy especially in disfavored' lawsuits. Vairo, Rule 11: A Critical Analysis, 118
F.R.D. 189, 200 (1988). For example, statistics have shown that there is a higher incidence of sanctioning in
civil rights cases than would be warranted strictly on the basis of their percentage of the filings. Willging, The
Rule 11 Sanctioning Process 161 (Fed. Jud. Center 1988).

10
The Honorable Charles E. Springer, Justice, voluntarily recused himself from participation in the decision
of this appeal.
____________
107 Nev. 651, 651 (1991) Granite Construction v. Rhyne
GRANITE CONSTRUCTION COMPANY, THE STATE OF NEVADA, ex rel.
DEPARTMENT OF HIGHWAYS, Appellants and Cross-Respondents, v. TRACY
LYNN RHYNE and CHARLES W. RHYNE, Respondents and Cross-Appellants.
No. 20449
October 2, 1991 817 P.2d 711
Appeal from a judgment on a jury verdict for compensatory and punitive damages. Second
Judicial District Court, Washoe County; Jerry C. Whitehead, Judge.
Action was brought against highway contractor for injuries sustained by motorist when her
vehicle collided with bull on highway. The district court entered judgment on verdict for
compensatory and punitive damages and contractor appealed. The supreme court, Springer,
J., held that award of punitive damages was proper where contractor was paid by state for
protecting highway users from known and expressly acknowledged risk, but contractor
elected not to construct protective fencing in order to save itself time and money.
Affirmed.
[Rehearing denied December 23, 1991]
Perry & Spann and Thierry V. Barkley, Reno, for Appellants and Cross-Respondents.
Victor G. Drakulich, Reno, for Respondents and Cross-Appellants.
Hamilton & Lynch, Reno, for Amici Curiae, Association of Trial Lawyers of America and
Nevada Trial Lawyers Association.
1. Trial.
Allowing jury to take dictionary into jury room was not error where trial court examined definition of words jury listed and found
nothing which would have had tendency to influence jury to reach a verdict inconsistent with legal proofs and court's instructions.
2. Evidence.
Allowing trooper to give his opinion on driver error in action for injuries sustained by motorist in collision with bull on interstate
highway was within scope of trial court's discretion.
3. Pleading.
Allowing plaintiffs to amend complaint against highway contractor to include claim for punitive damages for injuries sustained
when motorist's vehicle collided with bull on interstate highway was within trial court's discretion.
4. Damages.
Award of punitive damages against highway contractor for injuries sustained by motorist when her vehicle collided with bull on
the highway was proper where contractor was paid by state to protect the public but deliberately elected not to construct protective
fencing in order to save itself time and money.
OPINION
[Headnotes 1-3]
This is an appeal from a judgment of the Second Judicial District Court entered on a
unanimous jury verdict for compensatory and punitive damages. Although other errors are
assigned,
1
the principal question is whether the trial judge, the Honorable Jerry Carr
Whitehead, erred in allowing the verdict for punitive damages to stand against Granite
Construction Company. We hold that Judge Whitehead committed no error and therefore
affirm the district court judgment, including the judgment for punitive damages.
[Headnote 4]
Tracy Rhyne was seriously injured when her vehicle collided with a large bull on Interstate
80 east of Reno. The collision resulted from Granite Construction's decision not to honor a
provision of its highway construction contract with the State of Nevada, which specifically
required Granite to protect users of the highway under construction by furnishing protective
fencing that would prevent livestock from straying upon or across the right-of-way.
Although Granite thus expressly agreed to protect highway users from this known and
expressly acknowledged risk, and was paid by the State of Nevada for doing so, there is
evidence to support the conclusion that Granite deliberately elected not to construct protective
fencing on the south side of the highway and that it made the decision in order to save itself
time and money on the construction project.
__________

1
Granite assigned as error the trial court's allowing the jury to take a dictionary into the jury room. The trial
court remarked: [T]he Court has examined the definition of the words they listed and has found nothing in them
which would have had a tendency to influence the jury to reach a verdict inconsistent with the legal proofs and
Court's instructions. There is nothing in the record that would lead us to reject the trial court's observations and
conclusions.
With respect to the other claims of error, we conclude that the trial court was acting within the scope of its
discretion when it allowed Trooper Davenport to give his opinion on driver error (see Cheyenne Construction v.
Hozz. 102 Nev. 308, 311, 720 P.2d 1224, 1226 (1986)) and when it allowed the Rhynes to amend their
complaint to include a claim for punitive damages.
and money on the construction project. Granite was paid by the State to protect the public;
and the company consciously decided, for its own benefit, to put the public at risk by
pocketing as profit the money the State was paying Granite to build the protective fencing.
These facts show that Granite consciously and deliberately disregarded known safety
procedures, safety procedures which Granite expressly agreed to take care of when it signed
the highway construction contract. Leslie v. Jones Chemical Co., 92 Nev. 391, 393, 551, P.2d
234, 235 (1976). Judge Whitehead properly concluded that punitive damages are allowable
under such circumstances. NRS 42.005 (formerly NRS 42.010) (punitive damages awardable
where defendant guilty of . . . malice, express or implied . . . . (emphasis added)). See
Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973) (punitive damages
approved where air polluter had full knowledge of dangerous pollutants being emitted, yet
acted in wanton disregard of the rights and properties of others . . . .).
Judge Whitehead correctly ruled that in the Leslie case, cited above, the Nevada Supreme
Court held that punitive damages may be awarded against a corporation when there is a
conscious and deliberate disregard of known safety procedures by management personnel. In
making this ruling Judge Whitehead commented:
In the instant case, both the general contract between the State and Granite and the
subcontract between Granite and Tholl required the construction of a cattle containment
fence. Testimony established that cattle containment fencing is used as a safety measure
to prevent cattle and other livestock from gaining access to the highway. Testimony
further established that the defendants made a conscious and deliberate decision not to
enforce that provision of the contract and that for approximately two months, there was
no fencing whatsoever on the southside of Interstate 80.
Thereafter, Granite learned that there was at least one bull in the fields directly
adjacent to Interstate 80. There was evidence presented that Granite took no steps to
enforce the cattle containment fencing provision and took no other meaningful steps to
prevent the bull from gaining access to the highway.
Giving added strength to Judge Whitehead's comment is the admission by Granite's
superintendent, James Markwardt, that Granite was working under time pressures and that if
Granite had proceeded to install the safety fence in accordance with its contract, the job
would not be completed within the time specified in the contract. Even though there may be
some evidence that could lead to a contrary belief, the jury was certainly justified in
concluding that Granite was taking a short cut, that it was trying to avoid burdensome
financial penalties attached to late completion and that it therefore deliberately and with
knowledge of the potential danger decided not to erect the safety fence.
lead to a contrary belief, the jury was certainly justified in concluding that Granite was taking
a short cut, that it was trying to avoid burdensome financial penalties attached to late
completion and that it therefore deliberately and with knowledge of the potential danger
decided not to erect the safety fence. The jury could have easily and logically concluded that
such actions on the part of Granite Construction Company constituted a conscious and
deliberate disregard of the safety of motorists traveling along the unprotected highway.
Judge Whitehead was very precise and absolutely correct in his legal ruling in this case,
namely:
After having carefully considered the evidence, the Court believes that substantial
evidence was presented by the plaintiffs which would enable the jury to conclude that
(1) the defendants consciously and deliberately disregarded known safety procedures by
failing to enforce the contract provision which required a temporary cattle containment
fence and (2) that Granite, after having learned of the bull's presence, failed to take any
meaningful corrective measures to prevent the bull from gaining access to the freeway.
It is difficult to see how Judge Whitehead could have ruled otherwise; and we agree with
his determination that the jury's imposition of punitive damages in this case was fully
supported by the law and the evidence. The judgment of the trial court is affirmed.
Rose, J., concurs.
Mowbray, C. J., concurring:
I join in the court's opinion, but write separately to express my concern over the legal
hair-splitting that plagues this area of our law.
NRS 42.005 (formerly NRS 42.010) allows punitive damages to be awarded where the
defendant is guilty of malice. That, however, is both the beginning and ending of consensus
in this area of the law. The subtle, often imperceptible distinctions between express malice
and implied malice, and malice in fact and malice in law engender spirited debate in
courts across the land. Not surprisingly, this court has not been immune to the controversy,
and, as a result, our past decisions offer no clear resolution.
What is clear, however, is that our preoccupation with such legal niceties must not provide
a loophole for defendants whose gross and wanton misconduct cries out for punitive
sanctions. The jury here found that the defendant consciously and deliberately disregarded
known safety proceduresprocedures designed to protect the public from serious
harmto save a few dollars.1 To punish this conduct and deter others from committing
similar outrages, exemplary damages are both necessary and appropriate, no matter
what interpretation of "malice" we choose to employ.
ately disregarded known safety proceduresprocedures designed to protect the public from
serious harmto save a few dollars.
1
To punish this conduct and deter others from
committing similar outrages, exemplary damages are both necessary and appropriate, no
matter what interpretation of malice we choose to employ.
Steffen, J., with whom Young, J. joins, dissenting:
Because the majority's affirmance of punitive damages is contrary to the decisional law of
this state, I am compelled to dissent. I do, however, concur in affirming the judgment below
as it relates to the award of compensatory damages.
There is no evidence in this record that would support the proposition that Granite
harbored an intent to cause injury by failing to assure the erection of secure fencing to prevent
livestock from gaining access to the right-of-way under repair. In fact, the record reveals that
the state engineer approved, in advance, performing the relevant work on the south side of the
project without erecting a temporary cattle containment fence, thus waiving the contractual
obligation imposed by the State to provide such a fence. The State's waiver was based upon a
number of factors, including a mistaken understanding on the part of the state engineer,
Granite, and the fencing subcontractor, that no livestock remained in the area affected by the
work. While the right-of-way fence along the south side of Highway 80 was in the process of
being removed, a bull was seen in the vicinity by employees of the fencing subcontractor and
by Granite's project superintendent. After seeing the animal, the superintendent directed
another Granite employee to locate the bull and its owner in order to have it removed from
the area. On several occasions the superintendent also ordered that the Nevada Highway
Patrol be contacted for assistance in relocating the animal. Unfortunately, Granite's efforts
were inadequate as the bull was neither found nor removed prior to the time it wandered onto
the highway where it was hit by the vehicle driven by Tracy Lynn Rhyne. The facts of record
simply do not constitute a basis for punitive damages under Nevada law. Unquestionably,
Granite's actions may be viewed as negligent or perhaps even grossly negligent, and therefore
a justifiable basis for an award of compensatory damages. However, there is absolutely no
basis for a finding that Granite acted with actual malice. The record is bereft of evidence
indicating that Granite acted with a purposeful intent or motive to injure anyone.1 The
majority nevertheless concludes that punitive damages are supportable under a subtly
presented theory of implied malice, or malice implied in law.
__________

1
As the majority makes clear, there is ample evidence to support the jury's conclusion. Nevertheless, the
dissent disregards the jury's findings in favor of the factual scenario propounded by the defendant. Admittedly
much of the evidence is conflicting, but it is for the trier of fact to weigh the evidence, not the reviewing court.
See Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).
injure anyone.
1
The majority nevertheless concludes that punitive damages are supportable
under a subtly presented theory of implied malice, or malice implied in law. The majority
thus attempts to perpetuate the fantasy that Nevada statutory and decisional law has
recognized implied malice as a discrete basis for awarding punitive damages.
2
Although I
will avoid repeating the text of the plurality opinion in Craigo v. Circus-Circus Enterprises,
106 Nev. 1, 786 P.2d 22 (1990), much of what was said there demands repeating here in
response to the position announced by the majority.
Despite the timidity with which the majority underscores implied malice as support for the
proposition that NRS 42.005 allows punitive damages for consciously and deliberately
disregard[ing] known safety procedures," it is apparent that the intent of the majority is
to make an end run around all of this court's decisions to the contrary.
__________

1
The majority ascribes to Granite a willingness to take a short cut in order to avoid financial penalties that
would have been imposed if the highway project had not been completed within the time limitations prescribed
by the contract. What the majority fails to recognize is that the State also had an interest in securing the timely
completion of the work, and the state engineer thus agreed that since there was no livestock that would threaten
the right-of-way along the south side, there would be no need to burden the project with the needless erection of
a cattle containment fence. The fact that the work proceeded for a matter of weeks without the erection of
fencing along the south side of Interstate 80, until the bull was seen, reflects favorably on the understanding of
all parties concerning the complete absence of cattle in the relevant area. The record simply does not support the
inference that Granite balanced the need to erect a containment fence against the prospect of financial gain in
deciding not to require the construction of the fence. Granite's misinformation concerning the lack of danger
from animals was fully shared by the state engineer and the fencing subcontractor in determining not to erect the
fencing. Indeed, as noted above, the state engineer waived the requirement to construct such fencing. There is no
evidence in the record to suggest that Granite or the fencing subcontractor, let alone the state engineer, acted in
bad faith in proceeding under the understanding that the relevant area was free of cattle.

2
In the amici curiae brief filed by the Association of Trial Lawyers of America and the Nevada Trial
Lawyers Association, the proposition is tendered that the standard of conscious disregard of safety procedures
in reckless disregard of the possible consequences' is a standard defining malice in fact', not implied malice' or
malice in law'. . . . The brief concludes that [t]here is a very substantial difference between the animus malus
described by a motive and willingness to injure' and a deliberate intention to injure'. . . . I would be inclined to
agree if motive and willingness to injure were in the disjunctive rather than the conjunctive. The reasoning of
the case of Davis v. Hearst, 116 P.530 (Cal. 1911), reveals that use of the conjunctive by that court was not
inadvertent or unintended. That is why Davis emphasized that [i]t 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. Id. at 539. The combination of motive and willingness to injure admits of no rational definition other
than one indicating both an objective or intent, coupled with a willingness, to injure.
gard[ing] known safety procedures, it is apparent that the intent of the majority is to make an
end run around all of this court's decisions to the contrary. Unfortunately, rather than
forthrightly overruling our past decisions, which have consistently rejected the majority's
conjuration of malice in law as a discrete basis for punitive awards in Nevada, the majority in
essence pretends that we have always recognized that form of malice as support for imposing
exemplary damages. It would therefore appear that despite the unwillingness of the majority
to officially pronounce an obituary to virtually every ruling of this court on the subject of
punitive damages based upon malice, the net effect is the same.
In an attempt to validate today's ruling, the majority cites both Leslie v. Jones Chemical
Co., 92 Nev. 391, 551 P.2d 234 (1976), and Nevada Cement Co. v. Lemler, 89 Nev. 447, 514
P.2d 1180 (1973). Since the majority has not seen fit to acknowledge the actual holdings in
either case, it is necessary to again address them lest my silence be viewed as acquiescence.
First, in Lemler we observed that:
appellants seriously contend that because the district judge concluded that the acts of
the appellants only amounted to legal malice and express malice and not malice in
fact that the requirements of Gombos v. Ashe [322 P.2d 933 (Cal.App. 1958)] . . . and
other California cases, as well as our recent decision in Nevada Credit Rating Bureau,
Inc. v. Williams [88 Nev. 601, 503 P.2d 9 (1972)] . . . had not been met. The record
supports a finding of malice in fact.
Id. at 452, 514 P.2d at 1183 (emphasis added). Moreover, the Lemler court reaffirmed the
position this court had taken in Nevada Credit Rating Bureau, Inc. by explaining that:
NRS 42.010 provides that punitive damages are recoverable where the defendant has
been guilty of oppression, fraud or malice expressed 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. Davis v. Hearst, 116 P. 530, 538 (Cal.
1911); Wolfsen v. Hathaway, 198 P.2d 1 (Cal. 1948); Sturges v. Charles L. Harney,
Inc., 331 P.2d 1072 (Cal.App. 1958). In Nevada Credit Rating Bureau, Inc. v. Williams,
supra, we adopted the applicable principles, as set out in 14 Cal. Jur.2d, Damages
176.
Id. at 451, 514 P.2d at 1182-83 (emphasis supplied, footnote omitted).
In 14 Cal.Jur.2d, Damages 176, it states:
An award of exemplary damages, in an action for damages for injuries inflicted by
the defendant's malicious act, can be made only if the plaintiff can show that malice in
fact, as distinguished from malice in law, existed with respect to the defendant's act.
The distinction between malice in fact and malice in law is substantial. Malice 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. Malice in law, on the other hand, is merely a legal
fiction; it is that form of malice which the law presumes, either conclusively or
disputably, to exist on the production of certain designated evidence. Malice in fact
cannot be presumed; its existence must be found as a fact by the jury, although it may
be proved either by direct evidence of declarations, or by an inference drawn from the
acts or conduct of the defendant. While the element of malice which is essential to a
recovery of exemplary, or punitive, damages is sometimes called express malice,
actual malice, real malice, or true malice, it is always, in the last analysis,
malice of only one kindthe malice of evil motive.
(Footnote omitted, emphasis added.) I have burdened the reader with the complete text of the
section of 14 Cal.Jur.2d referred to in Lemler as having been adopted by this court in order to
eliminate any illusions about the accuracy of the majority's assertion. It should be evident to
anyone seriously interested in the holding of this court in Lemler that at no time did the court
recognize implied malice or malice in law as a discrete basis for awarding punitive damages.
The most that can be said for Lemler and the majority's attempt to expand its holding, is that
the decision was most probably improvident based upon the strained adaptation of the law as
reaffirmed by this court, to the peculiar facts of that case. In that regard, the reader is invited
to review the dissenting opinion of Justice Thompson.
The majority also cites to our opinion in Leslie v. Jones Chemical Co., 92 Nev. 391, 551
P.2d 234 (1976), as having recognized implied malice as a basis for awarding punitive
damages. Again, the majority avoids the true holding of the opinion as if it didn't exist. After
noting that the court was not concerned with the award of compensatory damages, the Leslie
court stated that [w]e are here 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. Id. at 393-94, 551 P.2d at 235 {emphasis added).
551 P.2d at 235 (emphasis added). Continuing, the court observed that [t]he malice in fact, if
any existed at all, had to be inferred from a disregard of known safety procedures by
management personnel of defendants. Id. at 394, 551 P.2d at 235 (emphasis added). It is thus
seen that even in Leslie the court recognized that the only form of malice that would sustain
the award of punitive damages was malice in fact. The bottom line in Leslie is that this court
was unwilling to resolve what it viewed as conflicting evidence concerning the existence of
malice in fact against the perceptions of the trial judge. Again, I invite the reader to peruse the
dissent in Leslie written by Justice Batjer. In my view, despite the Leslie court's adherence to
only one form of malice in Nevada law, that of malice in fact, the result reached by the Leslie
majority is difficult to justify. Having thus concluded, I nevertheless emphasize that the
dubious result in Leslie provides no support for the majority's attempt to characterize the
decision as having recognized malice in law as a legal basis for an award of punitive damages
in Nevada. The exact contrary conclusion is uncontradicted in the opinion.
This unwillingness to see, hear, and recognize what this court has been consistently
declaring since the 1972 decision in Nevada Credit Rating Bureau, Inc., v. Williams, supra, is
troubling. My concern is not derived from any particular view or philosophy concerning
exemplary damages, but rather the willingness of the majority to so cavalierly pretend that
our holdings have been something other than what they are. The plain fact of the matter is
that this court has never before recognized in Nevada jurisprudence malice in law as a
discrete basis for an award of exemplary damages.
Without reiterating the background laboriously set forth in the plurality opinion in Craigo,
3
the serious student of our prior rulings concerning the meaning of the statutory phrase
malice, express or implied, will see that this court has steadfastly adhered to its initial
pronouncement in Nevada Credit Rating Bureau, Inc. indicating with absolute clarity that the
phrase refers only to the evidence by which malice in fact may be proved. The majority's
attempt to characterize our prior holdings as archetypes of today's ruling presents a
paralogism based upon the tacit assumption that because two of our prior opinions, Leslie and
Nevada Cement, reached results more comfortably within an implied malice rather than an
actual malice standard, the former standard was de facto adopted despite this court's clear
indications to the contrary.
__________

3
Given the position of the majority in the instant case, it is extremely puzzling how the author of the
concurring opinion in Craigo could reach a conclusion of no liability for punitive damages there under a
standard of malice in law, and reach the opposite conclusion here where there is patently less reason to support a
punitive award.
standard was de facto adopted despite this court's clear indications to the contrary. I am
respectfully unwilling to accord credibility to that method of lawmaking. As stated
previously, it appears that the majority's position in the instant case overrules, sub silentio, all
of our prior rulings concerning awards of punitive damages attributable to malice. I would
have much preferred a forthright expression of that result.
If the majority had determined to confront the effect of the instant ruling in overruling our
lengthy and consistent line of precedents, there would have been a major challenge in
justifying such a result as a legitimate advancement of the common law. In the societal milieu
of today, there are many discordant views on the role, propriety, and costs of punitive
damages. Courts are ill-equipped to determine social costs and preferences in areas so fraught
with controversy and consequences. By way of illustration, I invite the reader to consider the
scholarly material contained in 56 S. Cal. L. Rev. (1982) under the general title Symposium:
Punitive Damages. The referenced material constitutes but a small sampling of the many
articles and organized efforts designed to analyze and resolve problems perceived to exist as a
result of large and frequent punitive damage awards. Apropos to the point is the majority's
simplistic analysis of the Pinto case in Grimshaw v. Ford Motor Co., 119 Cal.App.3d (1981).
4
The majority merely assumes that the Grimshaw ruling, allowing huge punitive damages
based upon an implied malice standard articulated as a conscious disregard of the safety of
others is a salutary one. Although I do not find it necessary to characterize or evaluate the
Grimshaw result, it is interesting and germane to consider a fragment of Professor Dorsey D.
Ellis, Jr.'s evaluation on the subject. The professor observed:
Although expected punitive damage liability may not reflect the social cost of
producing small cars, manufacturers must include such potential liability as a
production cost, attempt to minimize it, and recover the residue from purchasers.
Minimization may entail producing cars that are larger, heavier, less fuel-efficient, and
less aesthetically attractive, in order to make them safer. Thus, more resources will be
consumed in automobile manufacturing, and the price of cars will be increased to cover
these additional costs and the residual cost of expected punitive damage liability.
Purchasers will get safer cars, but not by choice.
__________

4
After this segment of my dissent was prepared, the majority deleted its citation to Grimshaw together with
attendant comments. I have elected not to modify this dissent accordingly, because the point needs to be stressed
that all aspects of the subject should be thoroughly considered and debated before expanding the criteria for
punitive awards.
choice. Many automobile purchasers have regularly revealed their preference for small,
light, fuel-efficient, aesthetically pleasing, lower-priced, less safe cars. Punitive damage
liability will result in more resources being consumed to produce and operate fewer
small cars. Prices will be higher, consumers will be limited to purchasing cars that are
safer than they desire, net revenues to manufacturers will be lower, and capital will be
diverted to other activities. As a consequence, aggregate welfare will be reduced.
Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 S. Cal. L. Rev. 1, 49
(1982).
The economic impact of punitive damages on consumers is but one of the factors that
should be objectively and thoroughly considered before expanding the bases upon which
punitive damages may be imposed. The prospect of the burden of punitive damages being
allocated to consumers at large rather than the entity to be punished is alone sufficient to give
pause to the desirability of imposing such damages under a theory of implied malice.
Moreover, current efforts to place limits on the amount of punitive awards reflects an
awareness that other factors and consequences need to be assessed along with the desirability
of punishing certain tortfeasors and products manufacturers. Indeed, our own legislature has
proven receptive to such limitations as reflected in the most recent amendment to NRS
42.005. In any event, my concern is not grounded in the philosophy behind exemplary
damages or the extent of their availability, but rather the conviction that any proliferation of
bases for such damages should be left to the legislative laboratory where extensive debate,
study, and research may be considered.
5

An additional reason why I cannot endorse the majority's decision to disregard stare
decisis stems from an appreciation of the social benefits derived from the availability of
punitive damages based upon desert. I am far from certain where current forces may lead us
concerning the future availability of such damages, and fear the possibility of their total
demise or severe attenuation unless courts exercise restraint in their imposition. I fully
understand that the plaintiff's bar prefers maximizing the availability of unlimited punitive
damages, but suggest that it is unrealistic to assume that an eventual day of reckoning will
never arrive.
__________

5
In Craigo, it was noted as a principle of law, that the judicial gloss placed on the California punitive
damages statute borrowed by this state, became part of NRS 42.010 when it was enacted in 1965. Our legislature
has never seen fit to change the statute to eliminate the gloss that we have consistently recognized in all of our
decisions involving punitive damages based upon malice. Today's majority opinion may have the effect of
amending the statute and eliminating the judicial gloss, thereby disregarding the legitimate prerogative of the
legislature to amend the statute if it were so inclined.
unrealistic to assume that an eventual day of reckoning will never arrive. The plain truth of
the matter is that there are both positives and negatives associated with the imposition of
exemplary damages, and if the social costs of such damages are ultimately perceived to be
greater than the benefits, the reaction may result in constraints of a counterproductive
magnitude. Such an occurrence, I suggest, would be much less likely if the legislature, more
attuned to the public pulse, determines the extent to which such damages are available. I
possess neither the clairvoyance nor the inclination to assess the social value of the position
adopted by the majority. Undoubtedly, reasoned arguments could be marshalled both
favorable and antagonistic to today's ruling. I do, however, perceive no principled basis for
advancing the common law in Nevada under circumstances where such controversy exists on
both sides of the position assumed by the majority.
Postscript
This is my third written dissent to dispositions prepared by our colleague, Justice Springer,
on behalf of the majority in this case. Rather than entirely revising my dissent for a third time,
I will simply address here the latest changes in the majority opinion. The only substantive
differences between the second majority draft and the third opinion which I am now
addressing, are the references to the learned trial judge, The Honorable Jerry Carr Whitehead,
and his rulings in the trial below, I do not fault the trial court judge, whose rulings antedated
this court's plurality opinion in Craigo, for assuming that punitive damages may be assessed
under a malice standard identified by a conscious and deliberate disregard of known safety
procedures by management personnel. I do find it curious, however, that the majority would
seek to bootstrap its views, post Craigo, by referring to a pre-Craigo ruling by a trial court
who was merely attempting to follow this court's earlier pronouncements. The fact that the
majority knows better is underscored by its emphatic reference to implied malice in NRS
42.005 as a discrete basis for supporting a punitive award. The majority shares my
understanding that conscious and deliberate disregard of known safety procedures by
management personnel refers to a course of conduct that would support a punitive damage
award based only upon implied malice, or malice in law. Indeed, our colleague, Justice
Springer, observed in his concurring opinion in Craigo that the Lemler and Leslie cases
sustained punitive awards based upon implied malice. Referring to Lemler, Justice Springer
noted that the defendant cement company had no deliberate intention to injure' anyone.
Craigo, 106 Nev. at 10, 786 P.2d at 28. In characterizing Leslie, our colleague stated that
[w]e approved a punitive award absent even a hint of any 'intention to injure' the
plaintiffs." Id. Describing "implied malice" as "malice of unintended harm," our colleague
concluded that in both the Lemler and Leslie cases, this court recognized implied malice
as a basis for imposing punitive damages. Id. For reasons set forth above, and at length in
Craigo, our colleague is wrong.
award absent even a hint of any intention to injure' the plaintiffs. Id. Describing implied
malice as malice of unintended harm, our colleague concluded that in both the Lemler and
Leslie cases, this court recognized implied malice as a basis for imposing punitive damages.
Id. For reasons set forth above, and at length in Craigo, our colleague is wrong.
At no time, at least until today, has this court ever recognized implied malice as a basis for
a punitive award.
6
As previously noted, I can understand why the trial judge would have
relied upon language in Lemler and Leslie in reaching his conclusion. Those decisions
affirmed punitive awards by tacitly fitting implied malice facts within an express malice legal
standard. At least the Lemler and Leslie courts continued this court's steadfast adherence to
the principle that only actual malice would support an award of punitive damages based upon
malice. Today's majority simply pretends that our prior rulings do not exist. Interestingly,
prior to Craigo, neither Justice Springer nor Justice Mowbray had dissented from this court's
consistent recognition of actual malice as the only form of malice that would support a
punitive award in Nevada.
7

__________

6
The plurality opinion in Craigo cited all of our opinions involving punitive damage awards based upon
malice. At no time did we recognize malice in law as a basis for exemplary damages. To the contrary, as
recognized by Justice Gunderson, writing for the court in Kelly Broadcasting v. Sovereign Broadcast, 96 Nev.
188, 606 P.2d 1089 (1980), [i]n order to award punitive damages, the trial court must find substantial evidence
of malice in fact. Id. at 194, 606 P.2d at 1093. Moreover, in the opinion of Sanguinetti v. Strecker, 94 Nev.
200, 577 P.2d 404 (1978), authored by Justice Mowbray, this court stated:
Sanguinetti also claims that the court erred in its instruction regarding punitive damages by failing to
define the actual malice required as an evil intention to do harm, on the part of the defendant. The
argument that this constituted prejudicial error is without merit. There is no reason to believe that the jury
understood that the malice it was to find 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. . . . Nevada
Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 610 503 P.2d 9, 14 (1972). Without an instruction
informing them of it, a jury would have no reason to know of its existence.
Id. at 211-12, 577 P.2d at 411-12 (emphasis added). As noted previously, our opinion in Nevada Credit Rating
Bureau, Inc., written by Justice Batjer, made it emphatically clear that [a]n award of exemplary damages, in an
action for damages for injuries inflicted by the defendant's malicious act, can be made only if the plaintiff can
show that malice in fact, as distinguished from malice in law, existed with respect to the defendant's act.
Nevada Credit Rating Bureau, Inc., 88 Nev. at 609, 503 P.2d at 14 (quoting from 14 Cal.Jur.2d, Damages
176) (emphasis added).

7
In the case of Jeep Corporation v. Murray, 101 Nev. 640, 708 P.2d 297 (1985), the district court judge
sitting for Justice Mowbray wrote on behalf of the court that [m]alice' means [under NRS 42.010, now NRS
42.005]
For the reasons specified above, and with special emphasis on the fact that the record
provides no evidentiary basis for imposing punitive damages based upon actual malice, I
respectfully dissent.
____________
107 Nev. 664, 664 (1991) Sheriff v. Acuna
SHERIFF, HUMBOLDT COUNTY, NEVADA, Appellant, v. RAUL ACUNA, Respondent.
No. 21507
October 8, 1991 819 P.2d 197
Appeal from district court order granting respondent's pretrial petition for a writ of habeas
corpus. Sixth Judicial District Court, Humboldt County; Llewellyn A. Young, Judge.
Appeal was taken from order of the district court granting petition for writ of habeas
corpus based upon asserted violation of Franklin rule arising out of state's arrangement
with cooperating individual. The supreme court, Steffen, J., held that: (1) when prosecutors
bargained in good faith for testimony represented to be factually accurate, it was not a
violation of due process or public policy to withhold benefit of bargain until after witness
testified; (2) any consideration promised by state in exchange for witness' testimony affected
only weight accorded testimony and not its admissibility; (3) state could not bargain for
testimony so particularized that it amounted to following script, or require that testimony
produce specific result; and (4) terms of quid pro quo had to be fully disclosed to jury,
defendant or his counsel had to be allowed to fully cross-examine witness concerning terms
of bargain, and jury had to be given cautionary instruction.
___________
malice in fact. Id. at 650, 708 P.2d at 304. Moreover, we also said (incorrectly) that malice in fact may be
established by a showing that the defendant consciously and deliberately disregarded known safety measures in
reckless disregard of the possible results. Id. Our colleague Justice Springer participated approvingly in the
opinion. It is plainly understood why the district court judge in the instant case ruled as he did. Under the
express language of the Murray opinion, we stated that our actual malice standard could be met by proof of a
conscious and deliberate disregard of known safety measures in reckless disregard of possible consequences. It
seems clear that all members of this court now recognize that our pronouncement in Murray was incorrect, and
that the conscious disregard conduct described therein may support a punitive award based only on an implied
malice standard. Judge Whitehead proceeded appropriately under our language in Murray. My bewilderment
stems from the position taken by the majority in seeking to somehow validate its fantasy regarding implied
malice by referring to the ruling of a district court judge who merely followed this court's erroneous
pronouncements concerning methods of proving actual malice.
cerning terms of bargain, and jury had to be given cautionary instruction.
Reversed.
R. Michael McCormick, District Attorney, and Robert Griffy, Deputy District Attorney,
Humboldt County, for Appellant.
Donald York Evans, Reno, for Respondent.
When prosecutors bargain in good faith for testimony represented to be factually accurate, it is not a violation of due process or
public policy to withhold benefit of bargain until after witness testifies; overruling Franklin v. State, 94 Nev. 220, 577 P.2d 860
(1978). U.S.C.A.Const. amends. 5, 14.
2. Witnesses.
Any consideration promised by state in exchange for witness' testimony affects only the weight accorded testimony, not its
admissibility.
3. Criminal Law.
State may not bargain for testimony so particularized that it amounts to following a script, or require that testimony produce a
specific result.
4. Criminal Law; Witnesses.
Where state promises consideration in exchange for witness' testimony, terms of quid pro quo must be fully disclosed to jury,
defendant or his counsel must be allowed to fully cross-examine witness concerning terms of bargain, and jury must be given
cautionary instruction.
OPINION
Respondent Raul Acuna allegedly sold cocaine to an individual who was motivated by his
own criminal involvement with the law to cooperate with the police. The alleged transaction
was monitored electronically and Acuna was arrested and charged with selling a controlled
substance. After a preliminary hearing, Acuna filed a pretrial petition for a writ of habeas
corpus based upon an asserted violation of this court's holding in Franklin v. State, 94 Nev.
220, 577 P.2d 860 (1978). The district court agreed that Franklin was dispositive and issued
the writ. Having reevaluated the Franklin rule and concluded that it should not be further
perpetuated, we reverse without determining whether the district court erred in finding a
violation of the Franklin standard.
1
FACTS
__________

1
Since this opinion was completed, but prior to its issuance, the 1991 Legislature enacted legislation which
essentially abrogated the Franklin rule. See Chapter 175 of the Nevada Revised Statutes.
FACTS
Phillip Crawford, a cooperating individual who was working with W. Kent Brown, an
investigator for the Tri-County Narcotics Task Force, told Brown that he had arranged to buy
a small quantity of cocaine from Acuna. The alleged transaction occurred at a parking lot in
the Winnemucca area and was monitored by police through means of an electronic listening
device carried on Crawford's person. On April 11, 1990, Acuna was arrested and charged
with selling a controlled substance. The following month, after a preliminary hearing, Acuna
filed a pretrial petition for a writ of habeas corpus based upon a violation of the Franklin rule
arising out of the State's arrangement with Crawford.
At the hearing on the petition, Acuna contended that because Crawford had not as yet been
formally charged and was allowed to enter a guilty plea, Crawford was under compulsion to
testify against Acuna in a particular manner. The State opposed the petition on the ground
that the Franklin rule applied only to an accomplice and that Crawford did not fit in that
category. The district court rejected the State's position, ruling that Franklin was not limited
to accomplice testimony.
2
Thereafter the petition was granted and the State appealed.
DISCUSSION
Our ruling in Franklin was a takeoff from the case of People v. Medina, 41 Cal.App.3d
438 (Cal.Ct.App. 1974). The Medina court held, and we so quoted in Franklin, that a
defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice
testimony and the accomplice is placed, either by the prosecution or the court, under a strong
compulsion to testify in a particular fashion. Id. at 145. However, the Franklin court
substantially expanded the Medina ruling by condemning the use of testimony secured from a
witness through means of an executory plea bargain. Specifically, we stated that the
application of the Medina rationale
may not be limited solely to situations where immunity is expressly conditioned on
specific testimony. As a matter of logic, if the circumstances of the plea bargain would
reasonably cause the alleged accomplice to believe he must testify in a particular
fashion, then a less explicit arrangement also violates the defendant's due process
rights.
__________

2
We agree with the district court that the Franklin rule was not limited to testimony offered by accomplices.
Perjury remains a serious concern with all potential witnesses who are willing to exchange testimony in return
for considerations of leniency by the State.
Franklin, 94 Nev. at 223-24, 577 P.2d at 862. We thereafter concluded that
[b]y bargaining for specific testimony to implicate a defendant, and withholding the
benefits of the bargain until after the witness has performed, the prosecution becomes
committed to a theory quite possibly inconsistent with the truth and the search for truth.
We deem this contrary to public policy, to due process, and to any sense of justice.
Id. at 225-26, 577 P.2d at 863. The concern thus expressed by the Franklin majority was the
lack of reliability inherent in an arrangement where the prosecutor must simultaneously
purchase and coerce testimony in order to obtain a conviction. . . . Id. at 225, 577 P.2d at
863.
The Franklin court is not to be criticized for its zeal in seeking to promote and protect the
truth-seeking objective of a criminal trial. Indeed, criminal justice may never be consistently
attained at the expense of truth. We nevertheless conclude that our rather isolated Franklin
rule is of limited benefit to the search for truth, and that it in fact may tend to frustrate truth
and create incentives for dissembling at trial. The Franklin constraints, noted above, do
nothing to restrain the incentives of a defendant and the State to consummate bargains
deemed advantageous to both. The State understandably desires testimony from persons
vulnerable to prosecution that will be of assistance in bringing other malefactors to justice.
Such persons are also motivated to bargain in order to ease the consequences that may ensue
as a result of their own criminal conduct. The stage is thus set, at least potentially, for the
cooperating individual to provide the State with information helpful to the prosecution of one
or more other defendants in exchange for some form of leniency concerning his own criminal
involvement.
We realize that persons vulnerable to criminal prosecution have incentives to dissemble as
an inducement for more favorable treatment by the State. It is thus clear that at least during
the negotiating stages of a plea bargain or other arrangements for leniency, the potential
witness will provide information that he or she deems to be of value to the State in the
prosecution of one or more other criminally involved persons. We must assume that the
prosecutor will evaluate the veracity of the information and bargain for its use in the form of
trial testimony only if there is a basis for concluding that the information is reliable. In no
event would we expect our prosecutors to enter into agreements for perjured testimony.
3
Moreover, we view as unrealistic the proposition that withholding the benefit of the
bargain until after the promisee testifies tends to commit the prosecution to a theory that
may be inconsistent with truth or the search for truth.
__________

3
Obviously, this court would view most seriously any arrangement between a potential witness and a
prosecutor calling for testimony known or
Moreover, we view as unrealistic the proposition that withholding the benefit of the
bargain until after the promisee testifies tends to commit the prosecution to a theory that may
be inconsistent with truth or the search for truth. It is difficult to envision a responsible
prosecutor proceeding to trial without having carefully developed a trial plan or strategy
designed to prove the truth of a theory upon which the prosecution is based. Indeed, in Barren
v. State, 99 Nev. 661, 669 P.2d 725 (1983), we stated that [a]lthough any prosecutor might
well desire the luxury of having an option not to reveal his or her basic factual theories, and
wish for the right to change the theory of a case at will, such practices hardly comport with
accepted notions of due process. Id. at 668, 669 P.2d at 729. It seems clear, therefore, that
one of the few instances when a prosecutor could improperly adhere to a predetermined
factual theory during trial would be where the prosecution is based upon perjured testimony
knowingly bargained for as a means of securing a conviction. In the latter case, the problem
arises from the prosecutor's dishonesty and lack of ethics as opposed to the withholding of
benefits until after the witness testifies.
If the State is required to provide the benefit of the bargain prior to the time the promisee
testifies at trial, the State's expectations may be frustrated by an uncooperative or forgetful
witness. Although it is true, as observed by the court in Franklin, that withholding the benefit
of the bargain until after the promisee testifies may create pressure to testify in a particular
manner, it would be neither realistic nor fair to expect the State to enter into a bargain without
assurances that the promisee's trial testimony would be consistent with the information he or
she provided to prosecutors as a basis for leniency. We are simply unwilling to assume, and
therefore base a rule of law upon, the proposition that our prosecutors will sit down with
persons vulnerable to prosecution and commit them to testifying perjuriously. If the person
seeking the bargain purports to have true information, and the State concludes that such
information is reliable and would be of assistance in prosecuting other persons, the State, in
return for a commitment of leniency, would have every right to expect that the promisee's
trial testimony would be essentially consistent with the original information upon which the
State's promise was induced. If the promisee reneges on the commitment to provide truthful
and consistent trial testimony, the State will be free to withdraw from the bargain.
__________
strongly suspected by the prosecutor to be false. Such an arrangement would clearly violate, inter alia, the rules
of professional conduct and would therefore constitute a basis for the imposition of stringent discipline.
[Headnote 1]
We now conclude that bargaining for specific trial testimony, i.e., testimony that is
essentially consistent with the information represented to be factually true during negotiations
with the State, and withholding the benefits of the bargain until after the witness has testified,
is not inconsistent with the search for truth or due process. However, we emphasize that our
ruling does not countenance a bargain for testimony conforming to a predetermined script or
for leniency or other consideration contingent upon the State obtaining a conviction. We hold
only that when our prosecutors bargain in good faith for testimony represented to be factually
accurate, it is not a violation of due process or public policy to withhold the benefit of the
bargain until after the witness testifies.
Although we have concluded that executory plea agreements are acceptable under Nevada
law, we are not unmindful of the danger posed by perjured testimony concocted by persons
seeking lenient treatment in connection with their own criminal problems. We have already
noted that the State may properly enter into plea arrangements when the putative witness
persuasively professes to have truthful information of value and a willingness to accurately
relate such information at trial. The less than remote possibility remains, however, that the
recipient of the State's promise has fabricated his or her information and will repeat it at trial
as a perjurer. Courts across the land have, in part, sought to deal with the incentive to commit
perjury by requiring at trial the baring of all aspects of the bargain pursuant to which the
testimony is given. As a result, it is generally determined that the terms of the State's bargain
concern only the weight, and not the admissibility of the testimony.
[Headnotes 2-4]
In accordance with the foregoing, we now embrace the rule generally prevailing in both
state and federal courts, and hold that any consideration promised by the State in exchange
for a witness's testimony affects only the weight accorded the testimony, and not its
admissibility. Second, we also hold that the State may not bargain for testimony so
particularized that it amounts to following a script, or require that the testimony produce a
specific result. Finally, the terms of the quid pro quo must be fully disclosed to the jury, the
defendant or his counsel must be allowed to fully cross-examine the witness concerning the
terms of the bargain, and the jury must be given a cautionary instruction.
4
In reevaluating
Franklin, we have concluded that it is both fair and prudent to align Nevada with the
general rule of law prevailing in other jurisdictions.
__________

4
We are confident that the rule adopted by this opinion will adequately safeguard a defendant's right to a fair
trial. Therefore, to the extent that Franklin is inconsistent with our ruling in the instant case, Franklin is
overruled.
In reevaluating Franklin, we have concluded that it is both fair and prudent to align
Nevada with the general rule of law prevailing in other jurisdictions. By way of illustration,
the Wisconsin Court of Appeals referred to the rule which we now adopt as follows:
The testimony of an accomplice, given in exchange for concessions or inducements
by the prosecution, is generally admissible where the established safeguardsfull
disclosure of the bargain, opportunity for cross-examination and adequate instructions
to the juryare present. United States v. Dailey, 759 F.2d 192, 196 (1st Cir. 1985).
Any concern over the credibility and reliability of such testimony is said to be satisfied
by allowing the jury to evaluate the accomplice's testimony, tested by
cross-examination, in light of full disclosure of any plea agreements and careful
instructions by the trial court. Id. at 198-200.
State v. Nerison, 387 N.W.2d 128, 130 (Wis.App. 1986).
In State v. Burchett, 399 N.W.2d 258 (Neb. 1986), the Nebraska Supreme Court explained
the rule thusly:
The general rule announced in other jurisdictions is that an accomplice's testimony
is admissible notwithstanding the fact that the testimony is procured by means of a plea
bargain. The promise of leniency or otherwise favorable prosecutorial treatment goes
only to the credibility of the accomplice's testimony, not to its admissibility. State v.
Garcia, 102 Idaho 378, 386, 630 P.2d 665, 673 (1981). See, also, Kelly v. State, 460
N.E.2d 137 (Ind. 1984); State v. DeWitt, 286 N.W.2d 379 (Iowa 1979); State v.
Leonard, 74 N.C.App. 443, 328 S.E.2d 593 (1985).
Generally, it is only where the prosecution has bargained for false or specific
testimony, or a specific result, that an accomplice's testimony is so tainted as to require
its preclusion. United States v. Librach, 536 F.2d 1228 (8th Cir. 1976); State v. Garcia,
supra; State v. DeWitt, supra.
Id. at 266.
Recently, the California Supreme Court focused on the issue addressed in People v.
Medina, supra, and concluded that plea bargains consummated in exchange for testimony are
unacceptable only where the testimony must be confined to a predetermined formulation or
must produce a given result, that is to say, a conviction. People v. Garrison, 765 P.2d 419,
428 (Cal. 1989) (quoting People v. Meza, 116 Cal.App.3d 988, 994 (1981)). The Garrison
holding is reflective of what appears to be a national consensus disavowing plea bargains in
exchange for testimony only where the bargain compels the witness to provide particularized
testimony. See, e.g., United States v. Dailey, 759 F.2d 192 {1st Cir. 19S5); State v.
Nerison, 401 N.W.2d 1 {Wis.
particularized testimony. See, e.g., United States v. Dailey, 759 F.2d 192 (1st Cir. 1985);
State v. Nerison, 401 N.W.2d 1 (Wis. 1987), and cases cited therein. As noted above, we
remain concerned over the prospects of vulnerable persons fabricating testimony as an
inducement for leniency by the State, but are convinced that the safeguards provided in the
instant ruling will be more effective in ferreting out false testimony than the restrictive rule in
Franklin. Finally, we reemphasize that it is not improper for the State to require the promisee
to testify in a general manner that is consistent with the information provided to the State as
an inducement for the bargain, subject, of course, to any change mandated by truth if the
promisee subsequently admits to falsifying the information upon which the bargain is based.
In the latter event, the State is under no obligation to provide the witness with the benefit of a
bargain resulting from disinformation. The testimony condemned by the courts generally, and
now this court in particular, is that which must be played according to a predetermined script
and irrespective of its truthfulness. The witness must understand that he is not free to commit
perjury, and that the plea bargain may not be based upon false testimony.
In the hearing before the district court, testimony established that Crawford was not placed
under a compulsion to testify according to preformulated, particularized, and dubious facts.
Of course, Crawford was aware of the fact that the State was privy to the transaction
concerning which he would testify, and that any deviation from the known, true facts would
result in a loss of the concessions he expected to receive from the State. He was nevertheless
under no compulsion to testify in accordance with a manufactured script or in any way
contrary to the truth. Crawford's agreement with the State compelled him only to be truthful
in his testimony.
In view of our ruling, the district court's order granting Acuna's petition for a writ of
habeas corpus is reversed and the case is remanded for further proceedings.
Mowbray, C. J., Agosti, D. J.,
5
concur.
Rose, J., with whom Springer, J., agrees, concurring:
I am concurring in the result reached by the majority because I do not think the conduct of
the law enforcement officers violated the Franklin rule. The granting of the writ of habeas
corpus should be reversed on that basis rather than overruling the Franklin decision.
__________

5
The Honorable Deborah A. Agosti, Judge of the Second Judicial District, was designated by the Governor
to sit in the place of The Honorable Cliff Young, Justice. Nev. Const., art. 6, 4.
In Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978), this court balanced the reliability
of accomplice testimony with the strong desire of law enforcement to use such testimony,
even when the accomplice was given express or implied direction to testify in a specific way.
We concluded that an executory plea bargain agreement in which the state bargains for
specific testimony is improper, and the accomplice should not be permitted to testify.
According to Franklin, whether the agreement was a bargain for specific testimony would
depend on the express agreement between law enforcement and the accomplice, and the
circumstances of the entire transaction. Franklin was a reasonable decision to help ensure that
truthful testimony would be presented at trial.
The State attempts to distinguish this case from Franklin by arguing that the Franklin rule
should be limited to accomplice testimony and not to other informants. However, informant
testimony presents the same reliability concerns as accomplice testimony. Logic and our dicta
in State Bar of Nevada v. Claiborne, 104 Nev. 115, 756 P.2d 464 (1988), would indicate that
the Franklin rule should apply to informant as well as accomplice testimony.
In this case, law enforcement bargained for Crawford's cooperation, not his testimony. The
agreement was that Crawford would attempt to purchase drugs from Acuna, and law
enforcement would then recommend that Crawford receive probation for his involvement in a
prior drug sale. Crawford then made a controlled purchase of marijuana from Acuna. Since
this transaction with Acuna was monitored, there is a minimum chance of Crawford's
fabrication for or against law enforcement. Crawford then testified at trial about this purchase
from Acuna.
While it is true that the agreement with Crawford was executory to the extent that he had
not been charged with or sentenced for any felony, I do not believe this transaction violated
Franklin. First, it was a bargain for cooperation, not testimony. When the bargain was struck,
there was no testimony to bargain for, since the transaction had not even occurred. Second,
there is no suggestion that Crawford was obligated to testify in any particular manner. And,
since the transaction Crawford testified about was closely monitored, there is minimum
chance of fabrication. For these reasons, I do not believe such testimony would be prohibited
by our prior ruling in Franklin.
The majority elects to overrule Franklin, rather than decide the case on this basis or limit
the Franklin ruling to accomplice testimony, even though nothing has transpired to diminish
the concern for the reliability of this type of testimony since Franklin was decided in 197S.
was decided in 1978. In fact, many situations have come to light that justify our suspicions.
For example, in the celebrated case of Leslie Vernon White, the Los Angeles district
attorney's office found itself in a difficult situation. White admitted that he frequently lied on
the witness stand when testifying as a jailhouse informant, which resulted in the convictions
of many possibly innocent people.
1
Such revelations are all too frequent and confirm our
concern about accomplice and informant testimony.
When 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. Zgombic v. State, 106 Nev. 571, 580,
798 P.2d 548, 554 (1990) (Justice Steffen, dissenting, quoting Maki v. Frelk, 239 N.E.2d 445,
447 (Ill. 1968)). I see no compelling reason to overrule Franklin rather than limit its
applicability in some situations. The Franklin rule recently has been changed by legislation.
See Chapter 175 of the Nevada Revised Statutes. However, we should avoid overturning a
long standing decision by judicial fiat, without compelling reason.
__________

1
Over the past decade, Leslie White has testified against at least a dozen California inmates whom he
claimed confessed their guilt to him. However, he later disclosed that at least some of the information he passed
on to lawmen was nothing but lies. He demonstrated how easy it is for a snitch to concoct a false confession
simply by using a telephone in the prison chaplain's office. Identifying himself as a bail bondsman, White called
the sheriff's document-control center and got an accused murderer's case number and date of arrest. Then, he
called the district attorney's records bureau, identifying himself as a deputy district attorney to obtain names of
witnesses and the prosecutors handling the case. In order to obtain details of the murder, White called the
coroner's office and told them he was a police officer.
After he falsely testified about a confession or damaging admission made in jail by the defendant which
would be consistent with the facts he had learned, White would receive special privileges, including early release
from his frequent prison terms. As a result of White's revelations of fabricated testimony, Los Angeles is having
to review more than 130 cases from the past ten years for possible taint. A Snitch's Story, Time Magazine,
December 12, 1988.
Furthermore, there is some indication that informants are more frequently used when a case is weak, and
therefore, the risk of convicting innocent people is increased. Use of Jailhouse Informers Reviewed in Los
Angeles, New York Times, January 3, 1989. Of the 225 people convicted of murder and other felonies as a result
of Mr. White and other jailhouse informers' testimony over the last 10 years in Los Angeles, 30 are on death
row. California Shaken over an Informer, New York Times, February 16, 1989.
____________
107 Nev. 674, 674 (1991) Smith v. District Court
A. JAY SMITH and ERNST AND WHINNEY, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY
OF CLARK, AND THE HONORABLE JEFFREY D. SOBEL, District Judge,
Respondents, and FIRST WESTERN SAVINGS ASSOCIATION, a Nevada
Corporation; FIRST WESTERN FINANCIAL CORPORATION, a Delaware
Corporation, Real Parties in Interest.
No. 21939
October 8, 1991 818 P.2d 849
Original proceedings in mandamus and prohibition challenging district court's refusal to
strike a post-trial peremptory challenge to a successor judge. Eighth Judicial District Court,
Clark County; Jeffrey D. Sobel, Judge.
Original petition for writ of mandamus or prohibition was filed challenging order of the
district court refusing to strike peremptory challenge that was based on concerns about judge's
ability to impartially consider motion for new trial filed after predecessor judge entered final
judgment. The supreme court held that, although peremptory challenge did not fall within
literal language of rule dealing with such challenges, policy concerns underlying rule justified
its application under circumstances of case.
Petition denied.
Lionel Sawyer & Collins, Las Vegas, for Petitioners.
Miles, Pico & Mitchell, Las Vegas, and Severson & Werson, San Francisco, California, for
Real Parties in Interest.
1. Prohibition.
Prohibition is proper remedy to restrain district court from exercising judicial function without or in excess of its jurisdiction. NRS
34.320, 34.330.
2. Mandamus.
Mandamus is proper remedy to compel performance of judicial act when there is no plain, speedy, and adequate remedy at law in
order to compel performance of act that law requires as duty resulting from office. NRS 34.160, 34.170.
3. Mandamus.
Issuance of writ of mandamus or prohibition is purely discretionary with appellate court. NRS 34.160, 34.170, 34.320, 34.330.
4. Judges.
Although peremptory challenge did not fall within literal language of rule dealing with such challenges to judges where trial had
occurred, final judgment had been entered, and newly elected successor judge had been selected to hear contested motion for new trial,
policy considerations underlying rule justified its application; challenge was filed within two days of motion
for new trial, before successor judge had heard motion, and challenge was based on concern for successor
judge's ability to be impartial after hard-fought judicial election campaign in which he defeated judge who
had entered original final judgment.
ations underlying rule justified its application; challenge was filed within two days of motion for new trial, before successor judge had
heard motion, and challenge was based on concern for successor judge's ability to be impartial after hard-fought judicial election
campaign in which he defeated judge who had entered original final judgment. SCR 48.1.
5. Judges.
Strict time limitations contained in rule dealing with peremptory challenges to judges are designed to prevent use of rule as device
for judge shopping or facilitation of dilatory tactics, and privilege afforded by rule must be exercised with dispatch or permanently
forfeited. SCR 48.1.
6. Judges.
Litigants may not file peremptory challenge to judge once judge has heard contested matter. SCR 48.1.
OPINION
Per Curiam:
This original petition for writ of mandamus or prohibition challenges an order of the
respondent district court, Jeffrey D. Sobel, Judge, denying petitioners' motion to strike a
peremptory challenge directed against the same judge as successor to litigation presided over
by Judge Sobel's predecessor in office.
Facts
This proceeding is part of a continuing conflict between petitioners and the real parties in
interest. The original complaint filed in 1984 pleaded allegations of breach of contract and
fraud. A ten-day trial resulted in a $4,516,565.22 judgment against petitioners and in favor of
First Western Savings Association and First Western Financial Corporation (hereinafter
First Western), plaintiffs below and the real parties in interest in these original proceedings.
The presiding judge throughout the trial was Judge John F. Mendoza. The original
judgment, entered on August 24, 1990, prompted petitioners to appeal to this court. We
dismissed the appeal on grounds that the amount of attorney's fees had not yet been
determined, and that consequently, the judgment previously entered was not a final judgment.
A final judgment was entered by Judge Mendoza on January 3, 1991, one day before he
officially left the bench after waging an unsuccessful reelection campaign against his
challenger, then attorney Jeffrey D. Sobel.
Judge Sobel took over Judge Mendoza's Department V of the respondent court on January
8, 1991. After Judge Mendoza entered the final judgment, petitioners filed a motion for a new
trial. First Western then filed a peremptory challenge under SCR 4S.11 to disqualify Judge
Sobel.
48.1
1
to disqualify Judge Sobel. Petitioners countered with a motion to strike the peremptory
challenge. Following a hearing, Judge Sobel denied the motion. The district court judge
determined that the policy considerations underlying an SCR 48.1 challenge were applicable
to the situation before him, thus warranting judicial accession to the peremptory challenge.
Respondents support the district court's ruling with their subjective perception that Judge
Sobel might have difficulty impartially determining whether Judge Mendoza properly
conducted the trial of this action and entered an appropriate judgment in view of a
hard-fought judicial reelection campaign. On the other hand, indulging and continuing the
speculation, the good judge could, if this petition were granted, extend an added, perhaps
subconscious effort to avoid an attitude of unfairness toward his predecessor's rulings.
__________

1
Rule SCR 48.1, prior to 1991 amendment, states in pertinent part:
1. In any civil action pending in a district court, which has not been appealed from a lower court,
each side is entitled, as a matter of right, to one change of judge by peremptory challenge. Each action or
proceeding, whether single or consolidated, shall be treated as having only two sides. A party wishing to
exercise his right to change of judge shall file a pleading entitled Peremptory Challenge of Judge. The
notice may be signed by a party or by an attorney, it shall state the name of the judge to be changed, and
it shall neither specify grounds, nor be accompanied by an affidavit. If one of two or more parties on one
side of an action files a peremptory challenge, no other party on that side may file a separate challenge.
2. A notice of peremptory challenge of judge shall be filed in writing with the clerk of the court in
which the case is pending and a copy served on the opposing party. The filing shall be accompanied by a
fee of $100, which the clerk shall transmit to the clerk of the supreme court. . . .
3. Except as provided in subsection 4, the peremptory challenge shall be filed:
(a) Within 10 days after notification to the parties of a trial or hearing date; or
(b) Not less than 3 days before the date set for the hearing of any contested pretrial matter, whichever
occurs first.
4. If a case is not assigned to a judge before the time required for filing the peremptory challenge, the
challenge shall be filed:
(a) Within 3 days after the party or his attorney is notified that the case has been assigned to a judge;
or
(b) Before the jury is sworn, evidence taken, or any ruling made in the trial or hearing, whichever
occurs first.
5. A notice of peremptory challenge may not be filed against any judge who has made any ruling on a
contested matter or commenced hearing any contested matter in the action.
6. The judge against whom a peremptory challenge is filed shall transfer the case to another
department of the court, if there is more than one department of the court in the district, or request the
chief justice to assign the case to the judge of another district.
7. The filing of an affidavit of bias or prejudice without specifying the facts upon which the
disqualification is sought, which results in a transfer of the action to another district judge is a waiver of
the parties' rights under this rule. . . .
could, if this petition were granted, extend an added, perhaps subconscious effort to avoid an
attitude of unfairness toward his predecessor's rulings.
Legal Discussion
[Headnotes 1-3]
Prohibition is a proper remedy to restrain a district judge from exercising a judicial
function without or in excess of its jurisdiction. See NRS 34.320; NRS 34.330. Mandamus is
a proper remedy to compel performance of a judicial act when there is no plain, speedy, and
adequate remedy at law in order to compel the performance of an act which the law requires
as a duty resulting from office. See NRS 34.160; NRS 34.170. However, the issuance of a
writ of mandamus or prohibition is purely discretionary with this court. See Hickey v. District
Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989) (mandamus and prohibition); State el
rel. Dep't Transp. v. Thompson, 99 Nev. 358, 361, 662 P.2d 1338, 1339 (1983) (mandamus);
Bowler v. District Court, 68 Nev. 445, 453-54, 234 P.2d 593, 598 (1951) (prohibition).
[Headnote 4]
We note at the threshold that the peremptory challenge at issue does not fall within the
literal language of SCR 48.1. The provisions of the rule as written do not accommodate the
filing of such challenges where, as here, trial has occurred, final judgment has been entered,
and a newly elected successor judge has been scheduled to hear a contested motion for a new
trial. Therefore, a strict and literal application of SCR 48.1, would compel the conclusion that
First Western's motion was not timely filed.
Peremptory challenges are mechanisms designed to insure a fair tribunal by allowing a
party to disqualify a judge thought to be unfair or biased. Jahnke v. Moore, 737 P.2d 465,
467 (Idaho Ct.App. 1987). A movant may be said to properly take advantage of a peremptory
challenge when the litigant is concerned that the judge may be biased or unfair for some real
or imagined reason. Id.
[Headnote 5]
Because of the ease with which a peremptory challenge to a judge operates, the danger
exists that the device will be abusedwith all the delay and waste of judicial resources that
such abuse entails. Nevada Pay TV v. District Court, 102 Nev. 203, 205, 719 P.2d 797, 798
(1986). The strict time limitations contained in the rule are therefore designed to prevent its
use as a device for judge shopping or the facilitation of dilatory tactics. Id. at 206, 719 P.2d
at 798. The privilege must be exercised with dispatch or permanently forfeited. Id.
A corollary policy behind the requirement is that such challenges be presented before
contested proceedings have commenced. Jeaness v. District Court, 97 Nev. 218, 219, 626
P.2d 272, 274 (1981) (emphasis in original text). Failure to file within the time strictures of
the rule results in waiver of the right to make a peremptory challenge. Id. at 220, 626 P.2d at
274. In other words, a party should not be permitted to disqualify a judge through a
peremptory challenge simply because he has made previous unfavorable rulings.
Carr-Bricken v. First Interstate Bank, 105 Nev. 570, 573, 779 P.2d 967, 969 (1989) (ruling
that a counterclaim does not revive the opportunity for a peremptory challenge under SCR
48.1).
After weighing the policy considerations underlying SCR 48.1, we have concluded that
application of the rule to the peculiar facts and circumstances of the instant matter was
proper. See Jeaness, 97 Nev. at 219, 626 P.2d at 274. This court has applied a standard of
review based upon reasonableness in resolving challenges to judges, focusing that standard
on the perspective afforded by the limitations and policies of the statute or rule of court
invoked to accomplish disqualification. For example, in a case involving timeliness of
affidavits filed to demonstrate actual bias or prejudice, this court upheld a challenge to a
district court judge to whom the matter had been reassigned and who had yet to hear a
contested matter in the case. See Tarsey v. Dunes Hotel, 75 Nev. 364, 366-67, 343 P.2d 910,
911 (1959); NRS 1.230. In Tarsey, this court held that pretrial rulings by one judge would not
prevent a party from asserting the right to disqualify another judge to whom the matter is
thereafter assigned for trial. The Tarsey court noted that it would be immaterial whether or
not prior to such assignment a contested matter had been heard in the action before a different
judge. Tarsey, 75 Nev. at 367, 343 P.2d at 911. We see no basis for distinguishing the
situation in Tarsey from that presented here.
2
SCR 48.1 provides an accommodation
between litigants and the court for preventing the abuse of judicial resources and promoting
the concept of fairness. In order to prevent abuse, the rule's limitations are strict. Moreover,
litigants benefit from only a brief period in which they may legitimately file a peremptory
challenge to a judge.
[Headnote 6]
Under the case law of this court, litigants may not file such a challenge once a district
court judge has heard a contested matter.
__________

2
See also Moore v. District Court, 77 Nev. 357, 364 P.2d 1073 (1961), where this court recognized that an
intervening party is essentially an original party to a cause of action who has the same right to file affidavits of
prejudice against a district court judge as other original parties. Id. at 363, 364 P.2d at 1077.
See Carr-Bricken, 105 Nev. at 573, 779 P.2d at 969. One opportunity to accomplish a change
of judges is permitted by the rule.
3
Here, an exercise of the privilege of peremptory
challenge is not proscribed by the policy behind the rule as Judge Sobel has not yet heard a
contested matter in the underlying action.
4
Moreover, First Western's motion was filed
within two days of petitioners' motion for a new trial. Respondents' motion was therefore
timely filed and not foreclosed as a matter of law.
5

For the reasons specified above, we conclude that petitioners' position lacks merit. Under
the circumstances of this case, the ends of justice do not warrant issuance of the extraordinary
writ petitioners seek from this court. See Hickey v. District Court, 105 Nev. 729, 734, 782
P.2d 1336, 1339 (1989); Bowler v. District Court, 68 Nev. 445, 454, 234 P.2d 593, 599
(1951).
Rose, Steffen, Young, JJ., McGee, D. J.
6
, and Breen, D. J.
7
, concur.
__________

3
Petitioners argue that a successful peremptory challenge would establish an unfortunate precedent for
relieving newly elected district court judges of much of their inherited caseload. Petitioners also contend that a
peremptory challenge of an inheriting judge would interfere with the newly-elected judge's statutory duties to
complete certain matters not completed by the predecessor judge. We tend to view the magnitude of petitioners'
concerns more as molehills than mountains. The instant type of challenge is unlikely to present a significantly
greater administrative burden than the more routine disqualifications resulting from the invocation of SCR 48.1.

4
For the reasons stated in this opinion, there is no significance in the fact that a different judge heard a
contested pretrial motion on September 4, 1985.

5
Petitioners argue that Judge Sobel's assumption of his duties constituted constructive notice of assignment
of a new judge. According to the argument, Judge Sobel's first official day on the bench, January 8, 1991, would
then trigger the rule's time constraints and respondents' motion would therefore be untimely. Petitioners strain
the language of SCR 48.1. Respondents had no reason or responsibility to assume that petitioners would demand
a new trial rather than proceed by way of an appeal, and the occasion for an SCR 48.1 challenge was therefore
not yet ripe in the context of the circumstances present here.

6
The Honorable Charles M. McGee, Judge of the Second Judicial District, was designated by the Governor
to sit in the place of The Honorable John C. Mowbray, Chief Justice. Nev. Const., art. 6, 4.

7
The Honorable Peter I. Breen, Judge of the Second Judicial District, was designated by the Governor to sit
in the place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
____________
107 Nev. 680, 680 (1991) Public Service Commission v. District Court
PUBLIC SERVICE COMMISSION OF NEVADA, A STATE REGULATORY AGENCY,
Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE
ADDELIAR D. GUY, DISTRICT JUDGE, Respondents, and NEVADA POWER
COMPANY, A NEVADA CORPORATION; NEVADA ELECTRIC INVESTMENT
COMPANY, A NEVADA CORPORATION; INTERMOUNTAIN POWER
AGENCY, A POLITICAL SUBDIVISION OF THE STATE OF UTAH; THE
ADVOCATE FOR CUSTOMERS OF PUBLIC UTILITIES; AN OFFICE OF THE
ATTORNEY GENERAL OF THE STATE OF NEVADA, Real Parties in Interest.
No. 22581
October 15, 1991 818 P.2d 396
Original petition for a writ of certiorari or mandamus. Eighth Judicial District Court, Clark
County; Addeliar D. Guy, Judge.
Public utilities filed complaint for declaratory and injunctive relief seeking declaration that
price items requested by Public Service Commission in connection with requested rate
increase were protected trade secrets. The district court ordered utilities to provide price terms
at issue and ordered Commission and consumer advocate not to disclose the price terms until
further order. Petition for writ of certiorari or mandamus was granted. The supreme court held
that: (1) the district court lacked subject matter jurisdiction to entertain action for declaratory
judgment challenging proceedings before Commission, and (2) district court had jurisdiction
to consider utility's request for extraordinary relief.
Writ denied.
Leslie T. Miller, General Counsel, Public Service Commission, Carson City, for Petitioner.
Rex Bell, District Attorney, Clark County, for Respondents.
Beckley, Singleton, DeLanoy, Jemison & List and H. Roger McPike, Las Vegas; LeBoeuf,
Lamb, Leiby & MacRae and Ronald L. Rencher, Salt Lake City, Utah; Fred Schmidt, Carson
City; Richard L. Hinckley, Las Vegas, for Real Parties in Interest.
1. Declaratory Judgment.
District court lacked jurisdiction under declaratory judgment statutes to review interlocutory decision of Public Service
Commission despite electric utility's contention that it was seeking declaration of its substantial and
constitutional right to maintain confidentiality of trade secrets; even if price items requested by
Commission were trade secrets, utility could not assert privilege where to do so would work injustice to
ratepayers.
despite electric utility's contention that it was seeking declaration of its substantial and constitutional right to maintain confidentiality
of trade secrets; even if price items requested by Commission were trade secrets, utility could not assert privilege where to do so would
work injustice to ratepayers. NRS 30.030, 49.325, subd. 1.
Courts will not entertain declaratory judgment action if there is pending, at time of commencement of action for declaratory relief,
another action or proceeding to which same persons are parties and in which the same issues may be adjudicated.
Court will not consider complaint for declaratory relief if special statutory remedy has been provided; separate action for
declaratory judgment is not appropriate method of testing defenses in pending action.
4. Public Utilities.
Public Service Commission is not final arbiter of question of whether trade secret must be disclosed in administrative proceeding
before Commission; although Commission must initially determine whether privilege exists and whether it may be asserted, decision of
Commission is subject to judicial review following final determination of action. NRS 233B.123, subd. 1, 703.373.
District court has jurisdiction to consider a utility's request for extraordinary relief, limited to determination of whether Public
Service Commission exceeded its jurisdiction in ordering utility to disclose for purposes of rate setting documents which utility
claimed contained trade secrets. NRS 34.020, subd. 2, 34.320.
OPINION
Per Curiam:
This original petition for a writ of certiorari or mandamus challenges on jurisdictional
grounds the authority of the district court to proceed with an action pending before it.
On May 16, 1991, Nevada Power Company (NPC) filed with the Public Service
Commission of Nevada (the Commission) an application for a general rate increase of
approximately $37.2 million. NPC applied for an additional recovery of $18.6 million for fuel
costs.
1
During hearings on the application, the Commission received testimony from the
Attorney General's Office of the Consumer Advocate (Consumer Advocate) and the Colorado
River Commission that NPC should not be allowed to recover the full $18.6 million in fuel
costs. These parties alleged that NPC had engaged in improper self-dealing at the expense
of the rate-payers.
__________

1
The petition and supporting documents do not disclose the exact date the application for a rate increase was
filed. The PSC represents, however, that its decision must be rendered in this matter on or before November 12,
1991, 180 days following the filing of the application. See NRS 704.100; NRS 704.110; NRS 704.120. Thus, the
application was apparently filed May 16, 1991.
had engaged in improper self-dealing at the expense of the rate-payers.
Specifically, the Consumer Advocate charged that NPC has sold property (coal) and
valuable property rights that were paid for at an inflated price by the ratepayers to its
unregulated, wholly-owned subsidiary, Nevada Electric Investment Company (Nevada
Electric). Nevada Electric then transferred an undivided fifty percent interest in its coal
operations to Intermountain Power Agency (IPA), a political subdivision of the State of Utah.
The result of these transfers, according to the Consumer Advocate, has been that income that
should belong to the ratepayers has been diverted to the shareholders of NPC.
On July 23, 1991, the Consumer Advocate and the Colorado River Commission asked the
Commission to require NPC to disclose the contracts between NPC, Nevada Electric and IPA
(collectively the utilities). The Consumer Advocate argued that the Commission could not
adequately review NPC's application for a rate increase without full disclosure of the
contracts which, according to the Consumer Advocate, contained NPC's strategy for avoiding
regulation by the Commission.
The utilities voluntarily provided the Commission with copies of the contracts at issue.
However, the utilities redacted from the copies of the contracts twenty-three price and date
terms. The utilities argued that these price and date terms were subject to a confidentiality
agreement, and should be protected against public disclosure because they contained trade
secrets with respect to property prices and the bottom-line cost of producing coal.
On August 1, 1991, following oral argument from all parties, Commissioner Michael A.
Pitlock ordered NPC to disclose four of the twenty-three price terms. NPC sought review of
Commissioner Pitlock's order from the full Commission. On August 19, 1991, after having
received additional argument from all parties, the full Commission determined that these
bottom-line price terms were not trade secrets, and that, even if they were trade secrets,
they should be disclosed because it would be unfair to the ratepayers to keep them
confidential.
On August 23, 1991, NPC, Nevada Electric and IPA filed in the district court a complaint
for declaratory and injunctive relief, together with motions for a preliminary injunction, a
protective order and a temporary restraining order. The utilities sought a declaration that the
price items at issue are protected trade secrets.
On September 4, 1991, the Commission moved the district court to dismiss the complaint
for lack of subject matter jurisdiction. In the motion, the Commission argued that the district
court lacked jurisdiction to consider an action for declaratory relief, but conceded that the
district court had extraordinary jurisdiction to determine whether the Commission had
exceeded its jurisdiction or had acted arbitrarily or capriciously.
conceded that the district court had extraordinary jurisdiction to determine whether the
Commission had exceeded its jurisdiction or had acted arbitrarily or capriciously. Thus, the
Commission asked the district court to dismiss the complaint, or to treat it as a petition for a
writ of mandamus.
In response, the utilities argued that the district court had jurisdiction. Nevertheless, the
utilities requested that their action be treated as a petition for a writ of mandamus if the
district court determined that it lacked jurisdiction to consider their action for declaratory
relief.
On September 13, 1991, without addressing the question of jurisdiction or indicating the
authority it purported to exercise, the district court ordered the utilities to provide the
Commission with the four price terms at issue. The district court further ordered the
Commission and the Consumer Advocate not to publicly disclose the four price terms until
further order of the district court.
2
Finally, the district court ordered the parties to submit for
approval an expedited briefing schedule with respect to all pending matters.
On October 8, 1991, the Commission filed the instant petition, seeking an order from this
court compelling the district court to set aside its order of September 13, 1991, and to dismiss
the action filed by the utilities.
The Commission contends that the district court lacks subject matter jurisdiction to
entertain an action for a declaratory judgment challenging proceedings before the
Commission. We agree. NRS 703.373 (emphasis added) provides in relevant part: 1. Any
party of record to a proceeding before the commission is entitled to judicial review of the
final decision. 2. . . . A petition must be filed within 90 days after the service of the final
decision of the commission. . . . No statutory right of review of interlocutory decisions of the
Commission exists. See Public Serv. Comm'n v. Community Cable, 91 Nev. 32, 530 P.2d
1392 (1975) (prior statute that allowed judicial review of an order of the commission
construed to allow judicial review of final orders of the Commission only).
[Headnote 1]
We have recognized that interlocutory review of agency determinations in any form could
completely frustrate the legislative purpose of relegating certain matters to an agency for
speedy resolution by experts. See Phelps v. District Court, 106 Nev.
__________

2
The utilities did not name as a defendant the Consumer Advocate, even though the Consumer Advocate
apparently has copies of the price terms at issue. However, the district court has allowed the Consumer Advocate
to participate fully in the action below, and the challenged district court order applies specifically to the
Consumer Advocate.
917, 803 P.2d 1101 (1990) (collateral review by district court of matters entrusted to medical
screening panel would result in delay, frustrating the purposes of the legislature in creating
the panel). Rate cases, such as this, affect an enormous number of persons, and unnecessary
delay might cost the ratepayers millions of dollars. The legislature has not authorized review
of interlocutory decisions of the Commission in the guise of a complaint for declaratory
relief. Cf. Harrah's Club v. State Gaming Control Bd., 104 Nev. 762, 766 P.2d 900 (1988)
(the constitution does not authorize court intrusion into the administration, control,
supervision and discipline of gaming, a matter within the jurisdiction of the State Gaming
Control Board.)
The utilities maintain, however, that the declaratory judgment statutes authorize any
person to seek a declaration of their rights. Characterizing their action below as one seeking a
declaration of their substantial and constitutional right to maintain the confidentiality of trade
secrets, the utilities argue that the district court's jurisdiction is properly based on the
declaratory judgment statutes. We disagree.
NRS 30.030 provides in part that courts of record shall have power to declare rights,
status and other legal relations of persons who file appropriate complaints. NRS 49.325(1)
(emphasis added) provides in relevant part: A person has a privilege . . . to refuse to disclose
. . . a trade secret owned by him, if the allowance of the privilege will not tend to conceal
fraud or otherwise work injustice. Thus, a person does not have a right to refuse to disclose
a trade secret. Instead, a person has only a conditional privilege not to disclose a trade secret
if the non-disclosure would not work an injustice.
The Commission determined below that even if the price items at issue are trade secrets,
the utilities are not entitled to assert the privilege because to do so would work an injustice to
the ratepayers. The utilities are not merely seeking to establish the existence of a property
right in trade secrets. Instead, the utilities seek an order of the district court overturning the
determination of the Commission that they cannot assert the privilege of concealing their
trade secrets under the peculiar circumstances of the action pending before the Commission.
Thus, it is apparent that the utilities seek a review of the Commission's decision with respect
to a privilege, not a declaration of the utilities' rights.
[Headnotes 2, 3]
It is well-settled that courts will not entertain a declaratory judgment action if there is
pending, at the time of the commencement of the action for declaratory relief, another action
or proceeding to which the same persons are parties and in which the same issues may be
adjudicated. Hass & Haynie Corp. v. Pacific Millwork Supply, 627 P.2d 291, 293
{Haw.Ct.App.
Pacific Millwork Supply, 627 P.2d 291, 293 (Haw.Ct.App. 1981). Further, a court will refuse
to consider a complaint for declaratory relief if a special statutory remedy has been provided.
See Nelson v. Knight, 460 P.2d 355 (Or. 1969). A separate action for declaratory judgment is
not an appropriate method of testing defenses in a pending action, see Ratley v. Sheriff's Civil
Service Bd., Etc., 646 P.2d 1133 (Kan.Ct.App. 1982), nor is it a substitute for statutory
avenues of judicial and appellate review. We conclude, therefore, that the district court lacks
jurisdiction to entertain the utilities' complaint for declaratory and injunctive relief.
[Headnote 4]
Nevertheless, we reject the Commission's argument that the Commission is the final
arbiter of the question of whether a trade secret must be disclosed in an administrative
proceeding before the Commission. Although the commission must initially determine, in the
course of a proceeding before it, whether a privilege exists and whether it may be asserted,
NRS 233B.123(1), the decisions of the Commission are subject to judicial review following a
final determination of an action. NRS 703.373. Thus, it is apparent that the legislature did not
intend that the Commission have the final word on questions of law.
With respect to the usual evidentiary questions resolved by the Commission, judicial
review following a final order of the Commission provides an adequate avenue of relief.
Interlocutory review of such decisions would be disruptive of the administrative process, and
counter-productive. Review of the decision that privileged information must be disclosed, on
the other hand, must occur before the information is disclosed to be effective. Because no
effective relief is available in the ordinary course of the law, the only possible remedy is
through a petition for extraordinary relief. Cf. Clark v. District Court, 101 Nev. 58, 692 P.2d
512 (1985) (extraordinary writ issued to prevent the district court from requiring the
disclosure of information protected by the attorney-client privilege).
[Headnote 5]
Based on the foregoing, and in light of the requests of all parties below that the utilities'
complaint be treated as a petition for extraordinary relief, we conclude that the district court
has jurisdiction to consider the utilities' request for extraordinary relief.
3
The district court's
consideration of this matter will necessarily be limited to the determination of whether the
Commission exceeded its jurisdiction in ordering disclosure of the documents at issue or,
assuming no excess of jurisdiction, whether the Commission manifestly abused its
discretion.
__________

3
The Commission has conceded before this court that the district court has jurisdiction to consider the
request for extraordinary relief. The Commission has nonetheless argued the merits of the issue of whether
extraordinary relief is available to the utilities below, and has requested, in the interest of judicial economy, that
this court determine that the Commission acted properly
essarily be limited to the determination of whether the Commission exceeded its jurisdiction
in ordering disclosure of the documents at issue or, assuming no excess of jurisdiction,
whether the Commission manifestly abused its discretion. See NRS 34.020(2) (a writ of
certiorari may issue when a lower tribunal, exercising judicial functions, has exceeded its
jurisdiction); NRS 33.320 (a writ of prohibition may issue to arrest the proceedings of a lower
tribunal exercising its judicial functions, when such proceedings are in excess of the
jurisdiction of the lower tribunal); Watson v. Housing Authority, 97 Nev. 240, 627 P.2d 405
(1981) (jurisdiction, in the context of a request for extraordinary relief, has a broader meaning
than the concepts of personal and subject matter jurisdiction; it includes constitutional
limitations); Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981) (a
writ of mandamus is available to control an arbitrary or capricious exercise of discretion).
We trust, in light of the important time limitations in actions of this nature, that the district
court will resolve the matters pending below as expeditiously as possible. For the reasons
expressed above, we deny this petition.
4

____________
107 Nev. 686, 686 (1991) Dressler v. State
ROBERT JAMES DRESSLER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21088
October 24, 1991 819 P.2d 1288
Appeal from a judgment of conviction of one count of driving under the influence of
alcohol, third offense. Ninth Judicial District Court, Douglas County; David R. Gamble,
Judge.
Defendant was convicted in the district court of driving under influence of alcohol with
two or more prior convictions. Defendant appealed. The supreme court held that: (1)
typographical error in information misnaming county of prior conviction did not prejudice
defendant, and, thus, information was sufficient to allow State to use the conviction for
enhancement, and (2) defendant's prior felony conviction after guilty plea was presumed to
be constitutionally obtained, and, thus, State did not have initial burden of proving
constitutionality of conviction in order to use it for enhancement.
__________
below. This we decline to do. Petitions for extraordinary relief should, in the first instance, be addressed to the
appropriate district court. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). We
express no opinion with respect to the merits of the issues pending below.

4
The Honorable Charles E. Springer did not participate in the decision of this matter.
sumed to be constitutionally obtained, and, thus, State did not have initial burden of proving
constitutionality of conviction in order to use it for enhancement.
Affirmed.
Terri Steik Roeser, State Public Defender, and Janet S. Bessemer, Deputy, Carson City, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Scott Doyle, District Attorney and
Kristine L. Brown, Deputy, Douglas County, for Respondent.
1. Automobiles.
Typographical error in information misnaming county of prior conviction did not prejudice defendant in prosecution for driving
under influence of alcohol with two or more prior convictions, and, thus, information was sufficient to allow State to use the conviction
for enhancement; evidence of correct county of the conviction was introduced at preliminary hearing. NRS 484.3792, subd. 2.
2. Automobiles.
State must in good faith include in information description that is as complete and accurate as possible concerning each prior
conviction used for enhancement for driving under influence of alcohol. NRS 484.3792, subd. 2.
3. Automobiles.
Error in description of prior conviction does not automatically preclude use of prior conviction for enhancement for driving under
influence of alcohol; unless defendant can show that omission or inaccuracy in describing prior conviction has caused prejudice, State
is not precluded from using that prior conviction in seeking enhancement of punishment. NRS 484.3792, subd. 2.
4. Judgment.
Judgment of conviction is entitled to presumption of regularity.
5. Judgment.
While courts may not imply waiver of constitutional rights from silent record, courts should not imply constitutional deficiency of
judgment of conviction from silent record.
6. Judgment.
In order to rebut presumption of regularity of conviction, defendant must make a prima facie case that there is constitutional
deficiency in judgment of conviction.
7. Judgment.
If defendant overcomes presumption of regularity given to judgment of conviction, State has burden of going forward with
evidence to overcome defendant's prima facie case.
8. Judgment.
Constitutionality of prior conviction is to be decided in favor of party producing preponderance of the evidence.
9. Criminal Law.
Before record of prior misdemeanor may be used for enhancement, State must affirmatively show that spirit of constitutional
principles was respected and either that counsel was present or that right to counsel was validly waived. U.S.C.A.Const. amend. 6.
10. Criminal Law.
In order to use prior felony conviction for enhancement, State's initial burden of production is satisfied if State presents prima facie
evidence of existence of prior conviction. NRS 207.010, subd. 8.
11. Criminal Law.
If record of prior felony conviction used for enhancement raises presumption of constitutional infirmity, State must present
evidence to prove by preponderance of evidence that prior conviction was constitutionally obtained.
12. Criminal Law.
If record of prior conviction used for enhancement has not raised presumption of constitutional infirmity, defendant is free to
present evidence tending to rebut presumption of regularity afforded to the conviction.
13. Criminal Law.
If defendant can establish by preponderance of evidence that prior conviction is constitutionally infirm, then that conviction may
not be used to enhance sentence.
14. Criminal Law.
Defendant's prior felony conviction after guilty plea was presumed to be constitutionally obtained, and, thus, State did not have
initial burden of proving constitutionality of conviction in order to use it for enhancement.
OPINION
Per Curiam:
On March 7, 1990, following a bench trial, the district court convicted appellant of one
count of driving under the influence of alcohol with two or more prior convictions. NRS
484.379; NRS 484.3792(1)(c). The district court sentenced appellant to serve a term of two
years in the Nevada State Prison, and fined appellant $2,000.
At sentencing, the state offered evidence of two prior convictions: (1) a Lassen County,
California, conviction dated July 8, 1983; and (2) a Douglas County, Nevada, conviction
dated February 10, 1990. Appellant objected to the use of the Lassen County conviction
because the information incorrectly alleged that the conviction had occurred in San Mateo
County, California, rather than Lassen County. The state moved to amend the information by
way of interlineation to reflect the conviction actually occurred in Lassen County, rather than
in San Mateo County. The state argued that the Lassen County conviction had been admitted
into evidence at the preliminary hearing, and that, therefore, no prejudice to appellant would
result from amending the information. After a continuation to allow briefing and to consider
the matter fully, the district court overruled appellant's objection and allowed the amendment.
[Headnote 1]
Appellant first contends that the district court erred in permitting the state to amend the
information after the verdict. Specifically, appellant asserts that, although the prior
convictions used to enhance a DUI conviction are not a substantive part of the offense, [t]he
facts concerning a prior offense must be alleged in the complaint or information, and must
also be shown at the preliminary examination . . . . NRS 484.3792(2). Further, an
information may not be amended after the verdict is rendered. See NRS 173.095(1)
(authorizing amendment of the information before verdict). Accordingly, appellant argues
that the district court erred in allowing the state to amend the information to reflect that his
1983 conviction was in Lassen County rather than in San Mateo County.
[Headnotes 2, 3]
We do not read NRS 484.3792(2) so restrictively. Certainly, the defendant in a DUI case
should be put on notice of the possible penalties faced, and should be provided with enough
information to challenge the validity of alleged prior convictions. The state must in good faith
include in the information a description of each prior conviction that is as complete and
accurate as possible. However, an error in the description of a prior conviction does not
automatically preclude use of the prior conviction for enhancement purposes. Instead, unless
the defendant can show that an omission or inaccuracy in describing a prior conviction had
prejudiced him, the state is not precluded from using that prior conviction in seeking an
enhancement of the defendant's punishment.
In the instant case, no such prejudice is alleged, and none occurred. The evidence of the
Lassen County conviction was introduced at the preliminary hearing; appellant could not have
been surprised to see the same evidence presented at his later sentencing. Further, unless
appellant had convictions in two California counties on the same date, it is unlikely he was
misled by the typographical error complained of. We conclude that the information, even
without amendment, was sufficient to allow the state to use the Lassen County conviction for
enhancement purposes. We therefore need not determine whether the district court erred in
allowing amendment of the information.
Appellant next contends that the district court erred in considering evidence of a prior
felony conviction from Douglas County, Nevada, because the evidence at sentencing did not
comport with this court's decision in Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983).
Appellant argues that Koenig requires that a prior felony conviction based on a guilty plea
may not be used for enhancement purposes in a subsequent proceeding unless "an official
court record" exists showing that the prior conviction is constitutionally valid.1 Further,
appellant argues that it is the burden of the state to produce such an official court record
as a prerequisite to using a prior felony conviction for enhancement purposes.
ment purposes in a subsequent proceeding unless an official court record exists showing
that the prior conviction is constitutionally valid.
1
Further, appellant argues that it is the
burden of the state to produce such an official court record as a prerequisite to using a prior
felony conviction for enhancement purposes. The state concedes that the Koenig standard was
not met in this case.
In light of the arguments of the parties, we have decided to make a detailed evaluation of
what the state must show before a prior conviction can constitutionally be used for
enhancement purposes.
The Supreme Court has repeatedly affirmed the validity of recidivist or habitual criminal
statutes. See Spencer v. Texas, 385 U.S. 554 (1967). In Spencer, the Supreme Court upheld
against constitutional attack a Texas rule of procedure which allowed the jury to be informed
of the existence of the defendant's prior felonies, but required that the jury be instructed not to
consider those prior felonies in reaching its verdict. In so doing, the Court concluded that the
fourteenth amendment did not empower the Court to oversee the varied procedures in state
courts for proving the existence of prior convictions for enhancement purposes.
In Burgett v. Texas, 389 U.S. 109 (1967), the Supreme Court reversed the conviction of a
criminal defendant because the state had introduced into evidence the record of a prior
conviction which showed on its face that the defendant had not been represented by counsel
but did not indicate whether the defendant had waived his right to counsel. Although the state
had introduced the prior conviction for enhancement purposes, the Court's holding was not
limited to use of a prior conviction for enhancement purposes. Instead, the Court first noted
the well established rule that a waiver of counsel cannot be presumed from a silent record,
and held that a conviction obtained in violation of the right to counsel cannot be used either
to support guilt or enhance punishment for another offense . . . . Id. at 115. The Court further
held that the error of admitting evidence of a presumptively unconstitutional conviction was
inherently prejudicial. Id. at 114-15.
The Burgett Court did not, however, place the burden of proving the constitutional validity
of a prior judgment of conviction offered for enhancement purposes on the state. The prior
judgment of conviction in Burgett raised a presumption of invalidity on its face; the question
of the state's burden of proof with respect to a prior judgment of conviction offered for
enhancement purposes was simply not before, and not addressed by the Court.
__________

1
The documents submitted by the state as evidence of the Douglas County conviction consist of a certified
copy of the judgment of conviction, one page of the minutes of preliminary proceedings in the Justice's Court of
the East Fork Township, Douglas County, and a bench warrant for appellant's arrest based on a failure to appear.
These documents affirmatively demonstrate that appellant was represented by counsel when he entered his plea.
They are otherwise silent with respect to appellant's constitutional rights.
lidity on its face; the question of the state's burden of proof with respect to a prior judgment
of conviction offered for enhancement purposes was simply not before, and not addressed by
the Court. This point is evidenced by the fact that the Court distinguished the Burgett
situation from its earlier decision in Spencer v. Texas, 385 U.S. 554 (1967), because in
Spencer the prior convictions were not presumptively void. Burgett, 389 U.S. at 115.
In summary, Burgett prohibits the states from using a prior felony conviction for any
purpose if the record of that conviction raises an unrebutted presumption that the prior
conviction was obtained in violation of a specific federal constitutional right. Burgett does
not prohibit the states from relying for enhancement purposes on presumptively valid prior
judgments of conviction, nor does it place on the states the burden of proving that a
presumptively valid judgement of conviction offered for enhancement purposes is not subject
to challenge on any constitutional basis.
Later, In Baldasar v. Illinois, 446 U.S. 222 (1980), the Supreme Court held that a
misdemeanor conviction, the records of which showed that the defendant was not
represented by a lawyer and did not formally waive any right to counsel, could not be used to
enhance a subsequent misdemeanor to a felony. Id. at 223-24. As in Burgett, the Baldasar
Court did not address the issue of the state's burden of proof with respect to a prior judgment
of conviction offered for enhancement purposes.
Although the United States Supreme Court has not addressed the question of what the
state's burden is with respect to prior convictions offered for enhancement purposes, other
courts have. For example, United States v. Gallman, 907 F.2d 639 (7th Cir. 1990), concerned
a defendant who was convicted of felony possession of firearms and receiving stolen
property. The defendant, Gallman, received an enhanced sentence of a minimum of fifteen
years without the possibility of parole. See 18 U.S.C. 922(g)(1), 924(e) (providing an
enhanced sentence for certain defendants with three prior convictions). On appeal, Gallman
contended that one of his prior convictions could not be used for enhancement because it was
based on a guilty plea which was not intelligently and voluntarily entered.
In discussing Gallman's contention, the court of appeals stated, once the government has
shown that a defendant has three prior violent felony' convictions, the burden rests with the
defendant to show that the conviction was unconstitutional . . . . Thus, a defendant can
overcome the government's proof of a conviction, but only if he musters evidence of that
conviction's unconstitutionality. Gallman, 907 F.2d at 643 (citations omitted). The court
noted further that [i]n some circumstances . . . where the certified record of conviction
indicates on its face that the conviction was unconstitutional, the defendant's burden is
automatically met and the defendant need introduce no evidence at all."
tion was unconstitutional, the defendant's burden is automatically met and the defendant need
introduce no evidence at all. Gallman, 907 F.2d at 643 n.4, (citing United States v. Gantt,
659 F.Supp. 73 (W.D.Pa. 1987)). Because Gallman's judgment of conviction was facially
valid, and because the evidence presented by Gallman failed to explicitly prove that
Gallman's plea was invalid, the court denied Gallman relief.
In Allen v. State, 463 So.2d 351 (Fla.Dist.Ct.App. 1985), the court considered a
consolidated appeal by several defendants whose misdemeanor crimes had been enhanced to
felonies based on prior convictions. The defendants claimed that the prior convictions relied
on to enhance their crimes were constitutionally infirm because the records of those
convictions did not affirmatively indicate that constitutional requirements had been satisfied.
The court first stated the well established rule that a duly entered judgment of conviction is
presumed to be valid. Id. at 357. The court then held that a judgment of conviction is not
invalid simply because it does not affirmatively demonstrate that constitutional requirements
had been satisfied. Id. at 363. Relying on Burgett and Baldasar, the court determined that a
defendant must be allowed to challenge the constitutional sufficiency of a prior judgment of
conviction in any proceeding where that judgment is offered by the state for enhancement
purposes. The court held, however, that in any challenge to the validity of prior convictions,
the defendant has the burden of proving the alleged grounds by a preponderance of the
evidence. . . . In addition, the defendant must prove by competent evidence that there was, in
fact, no knowing and voluntary waiver of rights on his part. Allen, 463 So.2d at 364
(citations omitted). The court went on to state that [o]nce the defendant has met this burden,
it is incumbent upon the state to go forward with contrary evidence to show either that the
defendant was afforded all constitutional rights or that he made a valid waiver thereof. Id.
Other state and federal courts are in accord with the law as stated in Gallman and Allen.
See, e.g., Tuitt v. Fair, 822 F.2d 166 (1st Cir. 1987) (it is not unconstitutional to require the
defendant to prove the affirmative defense that prior convictions are invalid); Luna v. Black,
772 F.2d 448 (8th Cir. 1985) (if the record is silent on whether defendant had counsel and
defendant presents evidence tending to show that he or she was not represented, the burden of
proof regarding the validity of prior convictions shifts to the state); Armour v. State, 479
N.E.2d 1294, 1300 (Ind. 1985) ([a]ffirmative defenses challenging the validity of predicate
felony convictions must be substantiated on the face of the proof offered by the State to
establish such convictions); Dunn v. Com., 703 S.W.2d 874, 876 (Ky. 1985) ([t]he
presumption of regularity of judgment shall be sufficient to meet the original burden of
proof"), cert. denied, 479 U.S. S32 {19S6); Brown v.
sumption of regularity of judgment shall be sufficient to meet the original burden of proof),
cert. denied, 479 U.S. 832 (1986); Brown v. State, 636 S.W.2d 19, 20 (Tex.Ct.App. 1982)
([p]roof of a proper prior conviction is the only prerequisite to enhancement) (emphasis in
original); State v. Ammons, 713 P.2d 719 (Wash. 1986) (en banc) (the state does not have the
affirmative burden of proving the constitutional validity of prior convictions used for
enhancement purposes if no constitutional infirmity appears on the face of the prior
judgement); but see United States v. Taylor, 882 F.2d 1018 (6th Cir. 1989) (appearing to
place an undetermined initial burden on the state); Rudolph v. Parke, 856 F.2d 738 (6th Cir.
1988) (requiring the state to produce a sentencing transcript showing a voluntary waiver of
rights).
[Headnotes 4-8]
Although there are some differences in approach between different courts, there seems to
be broad support for at least a few general propositions. First, a judgment of conviction is
entitled to a presumption of regularity. While it is true that courts may not imply a waiver of
constitutional rights from a silent record, it is also true that courts should not imply a
constitutional deficiency in a judgment of conviction from a silent record. If the state
produces valid records of a judgment of conviction which do not, on their face, raise a
presumption of constitutional deficiency, then the defendant has the burden of presenting
evidence rebutting the presumption of regularity given to a judgment of conviction.
2
In order
to rebut that presumption of regularity, the defendant must make out a prima facie case that
there is a constitutional deficiency in the judgment of conviction. If the defendant succeeds in
overcoming the presumption of regularity given to the judgment of conviction, then the state
has the burden of going forward with evidence to overcome the defendant's prima facie case.
Ultimately, the issue is to be decided in favor of the party producing a preponderance of the
evidence.
We turn now to Nevada law. In Hamlet v. State, 85 Nev. 385, 455 P.2d 915 (1969), this
court stated that Burgett holds that a record silent on its face as to counsel presumes a denial
of the right to counsel and, further, prohibits a presumption of waiver of counsel. The burden
is on the state to show that an attorney was either present or validly waived. Hamlet, 85 Nev.
at 387, 455 P.2d at 916 (citing Dyett v. Turner, 287 F.Supp 113 (D.Utah); Williams v.
Coiner, 392 F.2d 210 (4th Cir. 1968)). As noted above, however, the record at issue in
Burgett was not silent on its face as to counsel; rather, it affirmatively demonstrated the
absence of counsel, and was silent as to whether the right to counsel was validly waived.
__________

2
NRS 207.010(8) provides that [a] certified copy of a felony conviction is prima facie evidence of
conviction of a prior felony.
absence of counsel, and was silent as to whether the right to counsel was validly waived.
Thus, Burgett did not address the issue of the state's burden, and did not require a
presumption of constitutional invalidity from the face of a record silent as to counsel. Hamlet
went far beyond the requirements of Burgett.
In Anglin v. State, 86 Nev. 70, 464 P.2d 504 (1970), this court retreated from its holding
in Hamlet. Anglin was adjudicated a habitual criminal on the basis of six prior felonies. This
court discussed the enhancement issue as follows:
During the forgery trial and also at the habitual hearing, the appellant endeavored to
show that several of his prior felony convictions were constitutionally infirm for one
reason or another. Once identity is established, NRS 207.010(8) declares that
presentation of an exemplified copy of a felony conviction shall be prima facie
evidence of conviction of a prior felony. Accordingly, the evidentiary items contained
in the exhibit (type of prior felony, where committed, identity of sentencing court,
whether defendant was represented by counsel or had waived counsel, etc.) are prima
facie evidence of the facts the exhibit purports to show, and the trial court may accept
that evidence and reject the defendant's attempted contradiction of it. Of course, the
court may not rely upon the exemplified record, either to impeach or enhance
punishment, when a constitutional infirmity appears from the face of the record (for
example: that the defendant was not represented by counsel nor had he waived counsel,
Burgett v. Texas, supra). If the infirmity does not so appear, the court may rely upon the
exemplified record and make its determination therefrom.
Anglin, 86 Nev. at 73, 464 P.2d at 505-06.
3
In Halbower v. State, 96 Nev. 210
__________

3
The Anglin opinion continued by noting that, [f]rom time to time there may be an occasion where such
prior conviction is in fact constitutionally infirm, but such infirmity is not reflected upon the face of the
exemplified record. Anglin, 86 Nev. at 73, 464 P.2d at 506. This court then held that under such circumstances,
that infirmity is to be established through an appropriate proceeding in the state where the conviction occurred
and not otherwise. Until it is thus established the forum court may rely upon the exemplified record. Id.
The apparent requirement in Anglin that a judgment of conviction valid on its face be challenged, if at all, in
a separate proceeding is too harsh. Instead, as noted in the authorities cited above, a defendant must be afforded
an opportunity in any proceeding in which prior judgment of conviction is offered for enhancement purposes to
challenge the constitutional validity of the prior conviction. We do not believe that the language employed in
Anglin was intended to prevent a criminal defendant from challenging in the action in which a prior judgment of
conviction is offered the constitutional sufficiency of that prior judgment. To the extent that Anglin can be so
read, it is specifically disapproved.
In Halbower v. State, 96 Nev. 210, 606 P.2d 536 (1980), this court considered the case of a
defendant adjudicated a habitual criminal on the basis of five prior felony convictions. This
court reversed, in part, because the record of one of appellant's prior convictions showed that
Halbower appeared in proper person, and the state did not show that there was a valid waiver
of the right to an attorney. Under these circumstances, where the records upon their face
demonstrate absence of counsel, the burden is upon the state to show that the right to an
attorney was validly waived . . . . Id. at 212, 606 P.2d at 538. In shifting the burden of proof
to the state only after the record of a prior conviction affirmatively raised the possibility of a
constitutional infirmity, Halbower is consistent with Anglin.
In Scott v. State, 97 Nev. 318, 630 P.2d 257 (1981), a criminal defendant challenged two
prior convictions used to impeach his testimony in a subsequent case.
4
The record of one of
the prior convictions recited that the defendant in open Court, in person, pleaded guilty to
the charge of Burlary. Id. at 319, 630 P.2d at 258. The record of the other prior conviction
reflected the presence of appellant but did not reflect the presence of counsel for appellant.
Neither judgment of conviction affirmatively demonstrated a waiver of the right to counsel.
In reversing the defendant's judgment of conviction, this court stated, [w]e have heretofore
said that a court may not rely upon the exemplified record, either to impeach or enhance
punishment, when a constitutional infirmity appears from the face of the record.' Anglin v.
State, 86 Nev. 70, 73, 464 P.2d 504 (1970); see Halbower v. State, 96 Nev. 210, 606 P.2d 536
(1980). Scott, 97 Nev. at 319, 630 P.2d at 258 (emphasis added). Thus, the specific holding
of Scott is consistent with Anglin and its progeny.
5

Finally, in Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983), this court considered the
question of the sufficiency of the documentation required to be produced by the state before it
could use a prior misdemeanor conviction for enhancement purposes. Koenig did not involve
the use of a prior felony conviction for enhancement purposes, and this court announced no
standards with respect to the burden of proof when a prior felony conviction is offered for
enhancement purposes. Nevertheless, the following dicta from Koenig has apparently led to
some confusion: This Court, following the lead of the U.S. Supreme Court, has set forth
requirements for a guilty plea to be constitutionally tendered.
__________

4
It must be kept in mind, of course, that Scott is not an enhancement case. The prior convictions in Scott
were used for impeachment.

5
Unfortunately, some language in Scott could be read as requiring the state to affirmatively show the
presence of counsel and that the prior convictions based on guilty pleas were constitutionally obtained. Such a
reading of Scott is not required by the facts of Scott, and is inconsistent with the specific holding of Scott.
This Court, following the lead of the U.S. Supreme Court, has set forth requirements
for a guilty plea to be constitutionally tendered. In Scott v. State, 97 Nev. 318, 630 P.2d
257 (1981), Halbower v. State, 96 Nev. 210, 606 P.2d 536 (1980), and Anglin v. State,
86 Nev. 70, 464 P.2d 504 (1970), we held that in felony cases, an official court record
must exist showing that the defendant was apprised of his constitutional rights,
understood and waived them, that there were no threats or promises that induced the
guilty plea, that the defendant understood the consequences of the plea in terms of the
range of punishment and understood the elements of the offense or made factual
admissions evincing commission of the offense. See also Hanley v. State, 97 Nev. 130,
624 P.2d 1387 (1981); NRS 174.035.
Koenig, 99 Nev. at 788-89, 672 P.2d at 42-43.
Hanley, relied on by this court in Koenig, contains a list of things which a plea canvass
should affirmatively show in order for a felony judgment of conviction to pass constitutional
scrutiny.
6
The quoted language from Koenig, above, is essentially a paraphrase of the Hanley
list.
Hanley, however, did not deal with the use of prior convictions in the context of enhancing
a later sentence. Hanley dealt with the issue of a collateral attack on a conviction obtained
through a guilty plea by a defendant who wished to have that guilty plea set aside. Thus, the
burden of proof was clearly on the defendant, and the defendant failed to carry that burden
because the record of the proceeding demonstrated that the plea was valid. Nothing in Hanley
purported to place on the state the burden of proving that a prior judgement of conviction
offered for enhancement purposes was obtained as a result of a knowing and voluntary waiver
of all the constitutional rights enumerated in Hanley and Koenig.
By reading the Hanley requirements into Anglin, Halbower, and Scott, this court's opinion
has been read by some, including the parties to this action, as placing on the state the initial
burden of proving the validity of prior convictions offered for enhancement purposes. Koenig
placed no such burden on the state. The language of Koenig is correct, in that it states what
must be proven in a contested case involving the use of a prior felony conviction for
enhancement purposes. Koenig does not, however, shift to the state the defendant's initial
burden of demonstrating a constitutional infirmity in a presumptively valid judgment of
conviction.
__________

6
This court has replaced the formally structured analysis of Hanley in reviewing the validity of a felony
conviction on collateral attack with an approach that focuses on the state of the record as a whole. See Bryant v.
State, 102 Nev. 268, 721 P.2d 364 (1986).
conviction. As noted above, the state's burden to go forward with evidence to prove the
validity of a prior felony judgment of conviction does not arise until the defendant has
presented sufficient evidence to rebut the presumption of validity afforded all judgments of
conviction.
Consequently, in Koenig, we held, because of the informal nature of the prosecution of
misdemeanor cases, that the stringent standard of review used in felony cases should not
apply in misdemeanor cases. We further held that, in order to rely on a prior misdemeanor
judgment of conviction for enhancement purposes, the state had the burden of proving either
that the defendant was represented by counsel or validly waived that right, and that the spirit
of constitutional principles was respected in the prior misdemeanor proceedings. Although
Koenig is silent with respect to when the state's burden of proof arises, i.e., initially or only
after a defendant has rebutted the presumption of validity of a judgment of conviction, we
have subsequently, consistently required the state to initially shoulder this burden when
relying on a prior misdemeanor conviction for enhancement purposes. See, e.g., Pettipas v.
State, 106 Nev. 377, 794 P.2d 705 (1990).
[Headnote 9]
We conclude, therefore, that Koenig sets out the proper standard for the use of prior
misdemeanor convictions in enhancing the punishment for a subsequent offense. To the
extent that Koenig places a slightly higher burden of proof on the state in using misdemeanor
convictions, this higher burden of proof is justified by the fact that a misdemeanor conviction
is generally not viewed with the same gravity as a felony conviction. Thus, misdemeanor
convictions are routinely entered without the benefit of counsel; a rare occurrence in felony
cases. Accordingly, we feel it appropriate in misdemeanor cases to require the state to
affirmatively show either that counsel was present or that the right to counsel was validly
waived, and that the spirit of constitutional principles was respected in the prior misdemeanor
proceedings before the record of the prior misdemeanor may be used for enhancement
purposes.
[Headnotes 10, 11]
The use of prior felony convictions for enhancement purposes is governed by a different
standard. Consistent with established Nevada law, in order to use a prior felony conviction for
enhancement purposes, the state's initial burden of production shall be satisfied if the state
presents prima facie evidence of the existence of the prior conviction. See NRS 207.010(8);
Pettipas v. State, 106 Nev. 377, 794 P.2d 705 (1990). Such evidence of a prior conviction
shall be admitted for enhancement purposes so long as the record of that conviction does not,
on its face, raise a presumption of constitutional infirmity.
presumption of constitutional infirmity. If the record raises a presumption of constitutional
infirmity, the state must present evidence to prove by a preponderance that the prior
conviction was constitutionally obtained.
7

[Headnotes 12, 13]
If the record does not raise a presumption of constitutional infirmity, the defendant is
nonetheless free to present evidence tending to rebut the presumption of regularity afforded to
a criminal conviction. If a defendant can establish, by a preponderance of the evidence, that
the prior conviction is constitutionally infirm, then that conviction may not be used to
enhance the defendant's sentence. See, e.g., Crawford v. State, 107 Nev. 345, 811 P.2d 67
(1991) (a court may not rely on an exemplified record, either to impeach or enhance
punishment, when a constitutional infirmity appears from the face of the record; the burden of
showing that the document is constitutionally infirm is on the party disclaiming
admissibility).
[Headnote 14]
In the instant case, no constitutional infirmity appears on the face of appellant's prior
Douglas County conviction, either under our prior holdings or under the holding announced
today. The record demonstrates, for example, that appellant was represented by counsel
throughout the Douglas County proceedings. Further, appellant made no attempt in the
district court to show that his prior conviction had not been constitutionally obtained. Instead,
appellant simply argued that the state had not proved that appellant's prior conviction had
been constitutionally obtained. Thus, appellant failed in the district court to rebut the
presumption that the prior conviction was constitutionally obtained. Therefore, the district
court properly relied on the record of this conviction in enhancing appellant's sentence.
Accordingly, we affirm in all respects the judgment of conviction.
__________

7
The appropriate standard of review in evaluating the validity of a prior felony conviction pursuant to a
guilty plea is set forth in our opinion in Bryant.
____________
107 Nev. 699, 699 (1991) State Engineer v. Morris
THE OFFICE OF THE STATE ENGINEER, STATE OF NEVADA, and R. MICHAEL
TURNIPSEED, STATE ENGINEER, Appellants, v. WILLIAM W. MORRIS, Respondent.
No. 21368
October 24, 1991 819 P.2d 203
Appeal from an order reversing a ruling by the state engineer. Eighth Judicial District
Court, Clark County; Thomas A. Foley, Judge.
Developers filed application with State Engineer seeking to appropriate water for proposed
residential subdivision in Lovell Canyon in Clark County. State Engineer denied application.
Developer petitioned for judicial review. The district court reversed ruling of State Engineer
and granted application. State Engineer appealed. The supreme court held that: (1) fact that
groundwater which flowed down Lovell Canyon was at least temporarily within Pahrump
Valley groundwater basin before it continued its flow to southwest and fact that proposed
point of diversion was within United States geological survey water-supply paper study area
was sufficient to support State Engineer's decision that appropriation at proposed point of
diversion would affect existing water rights in Pahrump Valley; (2) evidence supported State
Engineer's finding that Pahrump Valley groundwater basin was currently overappropriated;
and (3) State Engineer's finding that point of diversion was within overappropriated
groundwater basin was supported by substantial evidence.
Reversed.
Frankie Sue Del Papa, Attorney General, Margaret A. Twedt, Deputy Attorney General,
Carson City, for Appellants.
Miles, Pico & Mitchell and Keith J. Tierney, Las Vegas, for Respondent.
1. Waters and Water Courses.
Fact that groundwater which flows down Lovell Canyon was at least temporarily within Pahrump Valley groundwater basin before
it continued its flow to southwest and fact that proposed point of diversion was within United States geological survey water-supply
paper study area were sufficient to support State Engineer's decision that appropriation at proposed point of diversion would affect
existing water rights in Pahrump Valley. NRS 532.010 et seq., 533.370, subd. 3.
Existence of more than 80,000 acre-feet in water rights outstanding in basin clearly amounted to overappropriation, even though
only 19,174 acre-feet were pumped from basin in 1987, and was proper basis for State Engineer's finding that basin was currently
overappropriated. NRS 533.370, subd. 3.
State Engineer's finding that point of diversion was within overappropriated groundwater basin was supported by substantial
evidence.
OPINION
Per Curiam:
This case involves an application to appropriate ground water. The application was filed
with the State Engineer by respondent, William W. Morris, on December 15, 1987.
Respondent was seeking to appropriate water for a proposed residential subdivision in Lovell
Canyon in Clark County. The application was denied by the State Engineer on March 25,
1988, and respondent petitioned for judicial review on April 25, 1988. Eventually, the district
court reversed the ruling of the State Engineer and granted respondent's application. The State
Engineer now appeals the order of the district court.
The State Engineer found that the point at which the proposed water appropriation was to
be made (the point of diversion) was within the Pahrump Valley Ground Water Basin. He
concluded that the Pahrump Valley Ground Water Basin is currently overappropriated.
Further, he reasoned that approval of respondent's application would aggravate a basin-wide
overdraft and would interfere with existing rights and therefore be detrimental to the public
interest.
The experts who testified on behalf of respondent and the State Engineer relied on various
surveys and reports regarding the ground water of Pahrump Valley and the surrounding areas.
The State Engineer seems to have relied heavily upon United States Geological Survey
(USGS) Water-Supply Paper 2279 prepared by James R. Harrill.
1
In support of his position,
respondent relies primarily on the expert testimony and report of Robert C. Broadbent. Mr.
Broadbent is an engineer and geologist with broad experience in hydrology. His report
concludes that ground water pumping at the proposed point of diversion will not affect the
areas of Pahrump Valley where the most ground water pumpage currently occurs.
__________

1
Much of the dispute between the parties involves this report and the State Engineer's reliance on it.
Respondent seems to contend that the proposed point of diversion is not actually included in the area discussed
in this report and that therefore the State Engineer's reliance on this report was improper. Although the proposed
point of diversion is not within the model area specifically shown in most of Harrill's maps, it is within the
broad study area addressed in Harrill's report. This broad study area was originally designated in USGS
Water-Supply Paper 1832 prepared by Glenn T. Malberg in 1967.
Respondent appealed the decision of the State Engineer to the district court. Following
briefing and oral argument the district court reversed the ruling of the State Engineer,
concluding that the findings of the State Engineer were clearly erroneous and constitute an
arbitrary and capricious abuse of discretion. We disagree.
Appellant contends that the district court wrongfully substituted its own judgment for the
judgment of the State Engineer and that the decision of the State Engineer was supported by
substantial evidence. Title 48 of the Nevada Revised Statutes gives the State Engineer the
authority to appropriate water upon the filing of applications. Under NRS 533.370(3)
2
the
State Engineer must deny applications when there is no unappropriated water in the proposed
source or when the proposed use conflicts with existing rights or is detrimental to the public
interest.
In reviewing findings of the State Engineer we have stated that neither the district court
nor this court will substitute its judgment for that of the State Engineer: we will not pass upon
the credibility of the witnesses nor reweigh the evidence, but limit ourselves to a
determination of whether substantial evidence in the record supports the State Engineer's
decision. Revert v. Ray, 95 Nev. 782, 786, 603 P.2d 262, 264 (1979).
Under NRS 533.450(9)
3
, decisions of the State Engineer are presumed to be correct upon
judicial review. In interpreting this statute we have held that, [w]hile not controlling, an
agency's interpretation of a statute is persuasive. State v. State Engineer, 104 Nev. 709, 713,
766 P.2d 263, 266 (1988) (citation omitted). In reviewing an order of the State Engineer, we
are bound by the same standard of review as the lower court. Under this standard, we are to
determine whether the evidence upon which the engineer based his decision supports the
order. State Engineer v. Curtis Park, 101 Nev. 30, 32, 692 P.2d 495, 497 (1985).
The district court appears to have applied the correct standard of review. The district court
specifically held that the findings of the State Engineer were "clearly erroneous in view of
the reliable, probative and substantial evidence on the whole record and incident thereto
constitute an arbitrary and capricious abuse of discretion."
__________

2
Where there is no unappropriated water in the proposed source of supply, or where its proposed use
or change conflicts with existing rights, or threatens to prove detrimental to the public interest, the state
engineer shall reject the application and refuse to issue the permit asked for. Where a previous
application for a similar use of water within the same basin has been rejected on these grounds, the new
application may be denied without publication.

3
NRS 533.450(9) provides: The decision of the state engineer shall be prima facie correct, and the burden
of proof shall be upon the party attacking the same.
the State Engineer were clearly erroneous in view of the reliable, probative and substantial
evidence on the whole record and incident thereto constitute an arbitrary and capricious abuse
of discretion. The district court's disagreement with the State Engineer's findings generally
centers around two issues: (1) whether the proposed point of diversion is within the
Pahrump Valley Ground Water Basin and therefore hydrographically connected to the areas
in which substantial ground water has already been appropriated; and (2) whether the
proposed appropriation will have an adverse effect on the ground water basin and existing
water rights.
The district court found that the State Engineer ignored that the point of diversion sought
for the appropriation is not within the Pahrump basin . . . . The specific conclusion reached
by the State Engineer in this respect was that:
Although water does not recharge the Manse Fan area [north central portion of
Pahrump Valley] it does ultimately flow into the Pahrump Ground Water Basin.
Consequently, the State Engineer finds that the area of origin of recharge from the
Spring Mountain for Manse Fan and Lovell Canyon are different but the final
destination of recharge is the Pahrump Ground Water Basin.
Appellant contends that this language indicates that the State Engineer found that the
proposed point of diversion was within the Pahrump Valley Ground Water Basin and that the
overappropriation of water in that basin justifies the denial of respondent's application. We
agree. This conclusion of the State Engineer is supported by Harrill's report which includes
the proposed point of diversion within the northeastern boundary of the study area and
therefore within the Pahrump Valley Ground Water Basin as it is discussed throughout the
report.
Respondent argues that because the State Engineer found that water from the proposed
point of diversion does not recharge the areas of greatest use in the north central portion of
the Pahrump Valley, there is not the necessary connection to justify denial of the application.
Respondent's expert, Mr. Broadbent, concluded that water pumpage at the proposed point of
diversion in Lovell Canyon will not affect the north central portion of Pahrump Valley.
Respondent attacks the Harrill report as unreliable because it is based upon data accumulated
only through 1975. Further, respondent claims that the area of pumpage studied by the Harrill
report does not include the proposed point of diversion.
[Headnote 1]
The exact boundaries of the Pahrump Valley Ground Water Basin cannot be definitively
determined from any of the evidence presented.
Basin cannot be definitively determined from any of the evidence presented. It is clear that
the proposed point of diversion in Lovell Canyon is within the boundary of the study area
examined in the Harrill report; however, it is not altogether clear that this entire study area is
within the ground water basin. None of the detailed maps (model boundaries) of the Harrill
report include the proposed point of diversion. In fact the proposed point of diversion is four
miles to the east of the model boundaries of the Harrill report.
At the very least, water from the proposed point of diversion flows into the Pahrump
Ground Water Basin. This fact is admitted to by respondent's expert, Mr. Broadbent, in his
testimony. Mr. Broadbent states that, Water . . . will flow down Lovell Canyon and then
infiltrate into Pahrump Valley at the southern-most extent of the Pahrump Valley Ground
Water Basin. It is clear that the ground water which flows down Lovell Canyon is at least
temporarily within the Pahrump Valley Ground Water Basin, before it continues its flow to
the southwest. This fact and the fact that the proposed point of diversion is within Harrill's
study area are sufficient to support the State Engineer's decision that appropriation at the
proposed point of diversion will affect the existing water rights in the Pahrump Valley.
[Headnote 2]
The exact amount of water that can be withdrawn from the Pahrump basin without
adversely effecting future use is not entirely clear. Harrill concluded that the maximum
amount of natural discharge that can be feasibly captured is about 19,000 acre-feet per year.
The State Engineer refers to this as the perennial yield and uses it as the maximum amount of
withdrawal above which overappropriation occurs. The maximum steady-state pumping rate
which takes into account return flow of water as well as other factors was found to be 26,000
acre-feet in 1975 by Harrill. Regardless of which number (19,000 or 26,000) is used as the
maximum amount of withdrawal, it is clear that the Pahrump Valley Ground Water Basin is
currently overappropriated.
Although only 19,174 acre-feet of water were pumped from the basin in 1987, the latest
recorded year, more than 80,000 acre-feet in water rights are outstanding in the basin. This
potential pumping of 80,000 acre-feet clearly amounts to overappropriation and is a proper
basis for the State Engineer's finding that the basin is currently overappropriated.
[Headnote 3]
Whether the proposed point of diversion is actually within this overappropriated Pahrump
Valley Ground Water Basin is a more difficult question. We conclude that the State
Engineer's finding that the point of diversion in the instant case is within the
overappropriated groundwater basin is supported by substantial evidence.
that the point of diversion in the instant case is within the overappropriated groundwater
basin is supported by substantial evidence. Based upon the fact that the location in question is
within the Harrill and Malberg study areas and the fact that even respondent's expert, Mr.
Broadbent, concedes that groundwater from the Lovell Canyon flows into the southernmost
portion of the Pahrump Valley Ground Water Basin, the State Engineer's findings and his
denial of respondent's application are supported by substantial evidence.
Accordingly, we reverse the ruling of the district court and reinstate the findings of the
State Engineer.
____________
DON D'ANGELO, Appellant, v. SUE GARDNER, GEMCO, a Division of LUCKY
STORES, INC., and LUCKY STORES, INC., Respondents.
No. 20452
WESTERN STATES MINERALS CORP., a Utah Corporation, Appellant, v. ROBERT C.
JONES, and GAIL A. JONES, Husband and Wife, Respondents.
No. 19697
October 24, 1991 819 P.2d 206
Appeal from a district court order granting respondent employer's motion for summary
judgment. Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge (Docket
No. 20452).
Appeal from general jury verdict and judgment awarding past, future an punitive damages
on claims of breach of employment contract, breach of good faith and fair dealing and
intentional infliction of emotional distress. Fourth Judicial District Court, Elko County;
Joseph O. McDaniel, Judge (Docket No. 19697).
In first case, terminated employee sued employer for wrongful discharge. The district court
granted summary judgment for employer. Employee appealed. In second case, terminated
employee sued employer in contract in tort for wrongful termination. The district court
entered judgment on jury verdict for employee. Employer appeal. After rehearing was
granted, 107 Nev. 104, 807 P.2d 1391, the supreme court, Springer, J., held that: (1) genuine
issue of fact existed as to whether first employee was at-will employee; (2) termination of
second employee violated public policy favoring safe employment practices and protection of
health and safety of workers on job; and {3) award of punitive damages to second
employee was proper.
tection of health and safety of workers on job; and (3) award of punitive damages to second
employee was proper.
Reversed and remanded, Docket No. 20452; affirmed, Docket No. 19697.
Eva Garcia, Las Vegas, for Appellant Don D'Angelo.
Smith & Kotchka, Las Vegas, for Respondent Sue Gardner, GEMCO and Lucky Stores,
Inc.
E. Pierre Gezelin, Reno; Davis, Graham & Stubbs and Steven J. Merker and Richard A.
Westfall, Denver, Colorado, for Appellant Western States Minerals Corporation.
Robert H. Perry and Janet J. Berry, Reno, for Respondents Robert C. Jones and Gail A.
Jones.
Lionel Sawyer & Collins and Brian McKay, Las Vegas, for Amici Curiae.
Laxalt & Nomura, Reno, for Amici Curiae.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, Reno, for Amici
Curiae.
Raggio, Wooster & Lindell, Reno, for Amici Curiae.
Vargas & Bartlett, Reno, for Amici Curiae.
Woodburn, Wedge & Jeppson, Reno, for Amici Curiae.
Hamilton & Lynch, Reno, for Amicus Curiae Nevada Trial Lawyers Association.
Jones, Jones, Close & Brown and Charles H. McCrea, Sr., Las Vegas, for Amicus Curiae
Southwest Gas Corporation.
Thorndal, Backus, Maupin & Armstrong, Las Vegas, for Amici Curiae REECo, EG&G
and EMI.
1. Master and Servant.
When employer issues employee handbook containing termination provisions and employee has knowledge of pertinent provisions
therein, this supports inference that handbook formed part of employment contract of parties.
2. Judgment.
Genuine issue of material fact, precluding summary judgment for employer in wrongful discharge action by terminated employee,
existed as to whether employee was subject to at-will termination, or whether he could be terminated only in accordance with employee
handbook containing provisions related to termination of employment for cause.
Employment contracts are ordinarily and presumably contracts which are terminable at will; however, employer may expressly or
impliedly agree with employee that employment is to be for indefinite term and may be terminated only for cause or only in accordance
with established policies or procedures.
Tort of bad faith discharge is committed when employer, acting in bad faith, discharges employee who has established contractual
rights of continued employment and who has developed relationship of trust, reliance and dependency with employer; by its nature,
this kind of employer-employee relationship cannot develop into at-will employment, and thus, bad faith discharge tort cannot be
committed against at-will employee as can tortious discharge.
Employer commits tortious discharge by terminating employee for reasons which violate public policy.
Although public policy tortious discharge cannot ordinarily be committed absent employer-employee relationship, this tort is not
dependent upon or directly related to contract of continued employment.
In employee's action for breach of contract of continued employment, sufficient evidence supported jury's findings that, in
promulgating its handbook, employer intended to make employee's employment terminable only for cause; employer's manager
specifically testified that employees had right to rely on what employer said in its employment manual and, in addition to deleting
at-will language from application form signed by employee, employer changed its handbook to include detailed procedures related to
discipline and dismissal of its employees.
In employer's action for breach of contract of continued employment, sufficient evidence supported jury's findings that employee
was not insubordinate and that employer therefore violated its contractual obligation to employee by discharging him without going
through measures prescribed by employer's disciplinary system; employee was exercising appropriate safety precautions when he
advised his superior at cyanide leach pit that he should not and would not work in proximity to cyanide while suffering from unclosed
surgical wound.
Terminated employee could not recover against employer for breach of implied covenant of good faith and fair dealing (bad faith
tort), as, although employee had been designated as permanent employee at time of his dismissal, he had worked less then two years,
and termination involved no deception or perfidy.
Essence of tortious discharge is wrongful, usually retaliatory, interruption of employment by means which are deemed to be
contrary to public policy of Nevada.
For purposes of tortious discharge actions, it is violative of public policy for employer to dismiss employee for refusing to work
under conditions unreasonably dangerous to employee.
For purposes of employee's tortious discharge action, employer, in discharging employee for refusing to work in proximity to
cyanide while suffering from unclosed surgical wound, violated public policy of Nevada favoring safe employment practices and
protection of health and safety of workers on job. NRS 618.015, subd. 2, 618.375, 618.385, subd. 1.
Employee was entitled to pursue action for tortious discharge against employer, who, in terminating employee, violated public
policy of Nevada favoring safe employment practices and protection of health and safety of workers on job; employee had no
comprehensive statutory or other tort remedy available to compensate him for civil wrong committed against him by employer.
Court properly awarded punitive damages to employee in his action against employer for breach of employment contract and
tortious discharge; there was evidence to support conclusion that charge of insubordination against employee was contrivance and
fraud, and there was evidence to support finding of malicious intent and oppressiveness on part of employer.
OPINION
1

Having allowed rehearing and argument in regard to the above-captioned matters, the
court now issues the following consolidated opinion and decision with regard thereto.
D'ANGELO v. GARDNER, ET AL., DOCKET NO. 20452
This is a wrongful discharge case.
2
GEMCO claims that D'Angelo is an at-will employee
and that he was subject to dismissal at any time without cause. D'Angelo claims that he is not
subject to at-will termination but must, rather, be terminated only in accordance with the
contract of the parties as evidenced by the handbook and in other ways.
This appeal comes to us on a summary judgment which holds, in effect, that D'Angelo was
an at-will employee as a matter of law.
__________

1
Rehearings in the above-captioned appeals were granted pursuant to orders issued April 2, 1991. This
opinion is issued on the rehearing.

2
The trial court granted summary judgment to GEMCO on D'Angelo's claims for defamation. We have
concluded that the trial court was correct in granting judgment to GEMCO on these claims and that D'Angelo's
appeal on these points is without merit.
law. Because there are issues of fact that bear on the nature of D'Angelo's employment
contract, we reverse the summary judgment.
[Headnotes 1, 2]
In Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983), a case very similar
3
to this one, we affirmed a summary judgment while recognizing that contractual obligations
can be implicit in employer practices and policies as reflected in an employee handbook.
When an employer issues an employee handbook containing termination provisions and the
employee has knowledge of the pertinent provisions therein, this supports an inference
that the handbook formed part of the employment contract of the parties. 99 Nev. at 595,
668 P.2d at 261.
4
In the case before us the employer issued a handbook containing
provisions relating to termination of employment for cause, and delivered one of these
handbooks to D'Angelo, who read and acknowledged its contents. These facts, as they did
in Ahmad, support an inference that the termination provisions were part of the employment
contract. In the face of such inference summary judgment should not have been granted.
In conformance with Ahmad, we must agree with D'Angelo that he should not be
foreclosed by summary judgment from trying to establish what we have recently termed a
contractual obligation of continued employment.
5
The relationship of an employer and
employee may be such that the employer has a contractual obligation not to discharge the
employee without first abiding by conditions relating to dismissal which are either
expressly agreed upon by the parties or inferable from the dealings and practices of the
parties.
__________

3
The significant facts in this case are most similar to the facts in Ahmad. In Ahmad and in this case we hold
only that an employee handbook might under certain circumstances be taken as evidence of an enforceable
contract between an employer and employee. In neither of these cases do we say (as stated in the dissent) that
any determination by [an employer] to terminate an employee is contestable before a jury as a final arbiter of
proper cause.' Proper cause is not an issue before this court in this case. The issue here, as in Ahmad, is
simply whether the employee should be denied his day in court and not allowed to present evidence that the
parties decided to forego at-will status and enter into a contract relative to employment termination. The
dissent quite correctly states that [t]oday's opinion perpetuates the Ahmad rationale. . . . Although the
dissenting justices apparently are not pleased with the Ahmad rationale, we could not decide the present case
differently without overruling Ahmad.

4
Of course, the employer can easily prevent this inference from arising by including in its handbook an
express disclaimer of implied contractual liability of the type found in Perry v. Sears, Roebuck & Co., 508 So.2d
1086, 1088 (Miss. 1987). In Perry, the pension plan manual at issue stated in bold type, Employment rights not
implied, and further stated that Participation in the plan does not . . . interfere in any way with the right of the
company to discharge or terminate you at any time. In light of these statements, the court correctly found that
no inference of implied contractual liability was present; thus, the court held that summary judgment was proper.

5
Sands Regent v. Valgardson, 105 Nev. 436, 439, 777 P.2d 898, 899 (1989).
employer and employee may be such that the employer has a contractual obligation not to
discharge the employee without first abiding by conditions relating to dismissal which are
either expressly agreed upon by the parties or inferable from the dealings and practices of the
parties. There is evidence to support this kind of employer-employee relationship in this case.
D'Angelo was employed by GEMCO as a salesman. Twelve years after he was hired,
D'Angelo had risen to the position of department manager, employed in the East Sahara store
in Las Vegas. In May of 1985, an incident occurred in which D'Angelo was accused of selling
some film regularly priced at $3.97 a roll for $2.00 a roll. D'Angelo explained that he did this
because the film date had expired. The outcome of this incident was that D'Angelo was
terminated from his employment.
D'Angelo learned of the grounds for his termination when he saw a copy of GEMCO's
letter to the state labor commissioner stating that D'Angelo had been terminated for violation
of work rule number 6, accepting or extending unauthorized discounts or credit to anyone.'
GEMCO's letter to the labor commissioner added: As noted in the Handbook, which Mr.
D'Angelo has read and acknowledged understanding of, deviation from this rule is considered
most serious by the company and proper cause for discharge.
The foregoing language would lead one to believe that since both GEMCO and D'Angelo
acknowledged understanding of the employee handbook, they may well have considered
themselves, to some extent at least, bound by the terms of the handbook. GEMCO's written
specification of charges given to the labor commissioner, although taken from the handbook,
does not of itself establish the binding effect of the handbook because, even in the discharge
of at-will employees, an employer may, in reporting to the labor commissioner, be called
upon to specify the cause for dismissal
6
; however, GEMCO's reference to the handbook, the
proclaimed understanding of the parties relative to the handbook, and GEMCO's reference
to a rule violation taken from the handbook as being the cause of D'Angelo's dismissal, all
tend to lead to the conclusion that the employment relationship was defined by the handbook
and that both parties considered themselves bound by the handbook with reference to
termination rights and processes.
At the time of his hiring, and as a condition of his being hired, D'Angelo was required to
read and acknowledge his understanding of the employee handbook. The handbook deals
with the subject of discharge and, in addition to referring to "proper cause" for dismissal,
sets out in some detail the "primary reasons which are considered by GEMCO as grounds
for discharge;" and "any discharge based on an employee's failure to perform work as
required" must be "preceded by written notice to the employee.
__________

6
GEMCO also acknowledged that D'Angelo had been dismissed for cause in a company bulletin describing
the cause of discharge as being for failure to follow company policies and guidelines.
subject of discharge and, in addition to referring to proper cause for dismissal, sets out in
some detail the primary reasons which are considered by GEMCO as grounds for
discharge; and any discharge based on an employee's failure to perform work as required
must be preceded by written notice to the employee.
7
(Our emphasis.) A jury could have
concluded that both employer and employee intended to be bound by the terms of the
handbook; but the jury could, of course, have concluded otherwise and decided in favor of
GEMCO. The jury could have seen the handbook (as does the dissent) as a mere convenience
to the employee and as a precatory expression of employment policies intended to benefit
employees, which was binding on the employee but not on the employer.
Just as there are cases in which handbooks and employment practices can be found to
support an express or implied obligation of continued employment, so are there cases in
which such an obligation is absent as a matter of law. This was the situation in our recent case
of Vancheri v. GNLV Corp., 105 Nev. 417, 777 P.2d 366 (1989). In Vancheri, although there
was an employee handbook, the handbook did not contain employee disciplinary procedures
or specification of proper cause for dismissal (see Vancheri, 105 Nev. at 422, n.2, 777 P.2d
at 369 n.2); thus, Mr. Vancheri could not rely on a handbook to support a claim on his part
that his employer owed to him a contractual obligation of continued employment. Absent
termination provisions in the handbook, we held in Vancheri that the mere existence of
customary or informal procedures employed in cases of employee dismissal would not vitiate
an essentially at-will employment.
In Vancheri, there was an established and customary disciplinary procedure that was
ordinarily followed by the employer, but this procedure was gratuitous and unilateral and was
not reduced to writing or incorporated in a handbook that was delivered to the employee and
acknowledged by the employee. We said in Vancheri that the mere establishment of such
procedures by an employer would not in an of itself create an obligation of continued
employment. Such procedures, unilaterally installed, do not create the right of continued
employment.
Mr. Vancheri failed, as a matter of law, to establish an agreement, express or implied,
between his employer and him, that granted to him the right of continued employment. By
contrast, as pointed out above, there is in the case before us ample evidence under our
ruling in Ahmad "to support an inference" of the existence of an obligation of continued
employment; and the granting of summary judgment to the employer in this case was in
contravention of our holding in Ahmad.
__________

7
GEMCO also argues that the procedures for dismissal do not apply to managerial personnel. This position
is belied by the statement made by GEMCO in the bulletin mentioned in the body of the opinion, in which
reference is made to a Manager who was terminated for failure to follow company policies and guidelines.
There is evidence to support a jury finding that the procedures for dismissal were available for managers as well
as for other personnel.
as pointed out above, there is in the case before us ample evidence under our ruling in Ahmad
to support an inference of the existence of an obligation of continued employment; and the
granting of summary judgment to the employer in this case was in contravention of our
holding in Ahmad. The language relating to termination contained in the employee-accepted
GEMCO handbook, taken with the fact that D'Angelo's discharge was based on a handbook
rule violation, would support a fact finder's conclusion that the employer was contractually
bound to the employee under an obligation of continued employment.
Summary judgment is reversed; and the matter is remanded for trial on the merits of the
wrongful discharge claims.
WESTERN STATES MINERALS CORP. v. JONES, DOCKET NO. 19697
This is a wrongful termination of employment case. Respondent Robert C. Jones sued his
employer, appellant Western States Minerals Corporation, in contract and tort because of the
manner in which Western States terminated Jones's employment. The trial jury awarded Jones
by general verdict $62,287.00 in past damages, $98,863.00 in future damages and
$100,000.00 in punitive damages. We affirm the judgment of the trial court on the general
verdict and hold that the evidence supports an award of contract damages and of tort
damages, compensatory and punitive, for tortious discharge. We deny Jones's tort claim for
breach of the implied covenant of good faith and fair dealing and decline any consideration of
the assignment of error relating to the claim for infliction of emotional distress because it is
not necessary to consider this claim to uphold the judgment.
Preliminary Comment Relating to Wrongful Discharge
The law relating to claims by employees against their employers for wrongful discharge is
rapidly evolving and is often lacking in the clarity one would expect to find in the more static
areas of judicial decision-making. For this reason we thought it useful to give a preliminary
overview of the three discrete claims for relief which we consider in this opinion, namely, a
claim for breach of contract, a claim for the tortious breach of the implied covenant of good
faith and fair dealing which can arise out of certain employer-employee contractual
relationships (sometimes called a bad-faith discharge tort) and tortious discharge
(sometimes called a public policy tort).
[Headnote 3]
1. Breach of Employment Contract. Employment contracts are ordinarily and presumably
contracts which are terminable at will; however, an employer may expressly or impliedly
agree with an employee that employment is to be for an indefinite term and may be
terminated only for cause or only in accordance with established policies or procedures.
will; however, an employer may expressly or impliedly agree with an employee that
employment is to be for an indefinite term and may be terminated only for cause or only in
accordance with established policies or procedures. We have called this a contract of
continued employment a contract which an employee can enforce in accordance with its
terms.
[Headnote 4]
2. Bad Faith Discharge Tort. This tort is committed when an employer, acting in bad
faith, discharges an employee who has established contractual rights of continued
employment and who has developed a relationship of trust, reliance and dependency with the
employer. By its nature this kind of employer-employee relationship cannot develop in an
at-will employment; consequently, a bad faith discharge tort cannot be committed against an
at-will employee as can a tortious discharge.
[Headnotes 5, 6]
3. Tortious Discharge. This tort, the so-called public policy tort, is the simpler of the two
subject employment torts. An employer commits a tortious discharge by terminating an
employee for reasons which violate public policy. Although this kind of public policy tort
cannot ordinarily be committed absent the employer-employee relationship, the tort, the
wrong itself, is not dependent upon or directly related to a contract of continued employment
such as that existing in the present case. K Mart Corp. v. Ponsock, 103 Nev. 39, 46, 732
P.2d 1364, 1369 (1987).
8
Discharging an employee for seeking industrial insurance benefits,
for performing jury duty or for refusing to violate the law are examples of tortious discharge.
See, e.g., NRS 6.190; Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984).
Having defined the scope of the opinion, we now proceed to a discussion of the first
matter of concern, liability for breach of the employment contract.
Breach of the Contract of Continued Employment
[Headnote 7]
We have concluded that the trial judge, the Honorable Joseph O. McDaniel, properly
determined that there was sufficient evidence for the jury to find that there was a
contractual obligation of "continued employment" between employer and employee. Cf.
American Bank Stationery v. Farmer, 106 Nev. 69S, 799 P.2d 1100 {1990); Sands Regent
v. Valgardson, 105 Nev. 436
__________

8
In K Mart under a heading of Tort Liability we referred to the application of general tort law to employee
discharge cases and cited Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984) as the prototypical tortious
discharge or public policy tort. K Mart, 103 Nev. at 45-47, 732 P.2d at 1368-69. Although we discussed tortious
discharge in general terms, we did not hold that K Mart committed a public policy tort when it discharged
Ponsock, a long-term, tenured employee, in order to deprive him of his retirement benefits. K Mart is a bad faith
discharge case and not a tortious discharge case.
dence for the jury to find that there was a contractual obligation of continued employment
between employer and employee. Cf. American Bank Stationery v. Farmer, 106 Nev. 698,
799 P.2d 1100 (1990); Sands Regent v. Valgardson, 105 Nev. 436, 777 P.2d 898 (1989). In
both of the cited cases we recognized that an employee handbook can become a part of the
oral contract between the parties. Farmer, 106 Nev. at 701, 799 P.2d at 1102 (emphasis
supplied). In the case now at bar, the employment agreement appears to have been entered
into when Jones signed a written agreement with Western States. At the time he was
employed Jones was required to sign an agreement which said: I agree that I will abide by
the terms and conditions set out in the company's Employee Handbook which was delivered
to him at the time he was hired. Western State's mine manager, John Rice, specifically
testified that the company's employees have a right to rely on what Western States said in its
employment manual. This provides evidence of the parties' contractual intent.
Without belaboring the point unduly, there is other sufficient evidence to support the
rulings of the trial court and the conclusion of the jury that, in promulgating its handbook,
Western States intended to make its employees' employment terminable only for cause. For
example, we note that Western States' employment application form in 1980 stated: I
understand that my employment is for no definite period and may . . . be terminated at any
time without previous notice. This at will language was removed from Western States'
1984 application form; and, instead of this language, the form merely stated that any
misleading or incorrect statements may render this application void, and if employed would
be cause for termination. In addition to deleting the at-will language from its application
form, Western States also changed its handbook to include detailed procedures related to
discipline and dismissal of its employees. Under the terms of the amended handbook,
disciplinary actions must take the following course: (1) oral reminder; (2) written reminder;
(3) discharge. The handbook further provided that these procedures could be bypassed only if
the employee commits an offense so serious that immediate discharge without prior warning
is appropriate.
On the total record, it appears that Judge McDaniel did not err in upholding the jury's
finding of contractual liability in this case, because the changed language in the application
form and the language contained in Western States' employee handbook could reasonably be
interpreted to have changed the status of Western States' Jones and other employees from that
of at will to for cause.
Eight years ago, in Southwest Gas Corp. v. Ahmad, 99 Nev.
594, 668 P.2d 261 (1983), this court recognized that contractual obligations can be implicit in
employer practices and policies and as reflected in employee handbooks.
The decision of prestigious courts in other jurisdictions support our holding in Ahmad and
the other cases previously cited. For example, in the case of Foley v. Interactive Data Corp.,
765 P.2d 373 (Cal. 1988), the California Supreme Court recognized that where no explicit
agreement of continued employment is entered into, an agreement can be implied from the
circumstances of the employment. Foley recognized that employees may be induced by
employers to take employment or remain on the job by the conduct, policy and implied
promises of the employer. Such employees may, accordingly, have enforceable rights which
can be asserted in the courts. The Foley court observed that [a] review of other jurisdictions
also reveals a strong trend in favor of recognizing implied contract terms that modify the
power of an employer to discharge an employee at will, and that this rule is one that has
achieved widespread acceptance in recent years. Id. at 384. The Michigan Supreme Court is
in accord. See Toussaint v. Blue Cross & Blue Shield of Michigan, 292 N.W.2d 880 (Mich.
1980).
[Headnote 8]
Jones's position is that he was at no time and in no manner insubordinate or unwilling to
submit to his employer's authority. The jury agreed with him, and Judge McDaniel entered
judgment on a jury's verdict in favor of Jones which was amply supported by the evidence.
Jones admits that he expressed his unwillingness to work in the cyanide leach pit at a time
when he was suffering from an unclosed surgical wound. He testified that this unwillingness
was prompted by Western State's safety policies and by his own reluctance to place himself in
a knowingly dangerous situation. The company, on the other hand, contends that Jones's
unwillingness to accept the temporary cyanide assignment was outright insubordination and
willful refusal to perform a lawful employment assignment required of him by his superiors.
This pivotal factual issue was, of course, decided in favor of Jones by the jury which, by its
verdict, necessarily concluded that Jones was not insubordinate and that he was, therefore,
impermissibly discharged.
We now turn to a more detailed discussion of the facts surrounding the termination, facts
which must be viewed in the light most favorable to Jones. See K Mart, 103 Nev. at 43, 732
P.2d at 1366.
Mine manager Rice defined the principal factual issue in this case at trial when he testified
that the issue here was Mr. Jones's refusal to work around cyanide. The evidence strongly
leads to the conclusion that there is nothing in Jones's conduct that even approaches an
insubordinate refusal to work around cyanide.
the conclusion that there is nothing in Jones's conduct that even approaches an insubordinate
refusal to work around cyanide. Jones's refusalif it can be called thatwas simply his
telling immediate superiors that it was unsafe and contrary to company safety policy for him
to work in the cyanide area while he had an open surgical wound. Jones had learned of
cyanide absorption risk and the need to protect unhealed wounds from cyanide exposure
when he attended one of Western State's required safety courses. It was made clear to him
during this safety course that anyone with an open wound should avoid contact with cyanide
because of the increased danger of cyanide absorption into the body. A witness for Western
States testified that Jones was assigned to work around cyanide because the heavy
equipment which he usually operated broke down. For this reason Jones temporarily was
sent to lighter duty in the company's cyanide leach pit. One company witness testified that,
upon arrival at the cyanide area Jones very respectfully declined to work in the cyanide area
and explained the reason for his refusal. There appears to be no question about the danger
presented to Jones by the cyanide leach pit. Specific cautionary language on sodium cyanide
is set out in the DuPont manual introduced into evidence by Jones, which states: Never
permit contact with open wounds or skin abrasions. Jones was clearly exercising appropriate
safety precautions when he advised his superior at the cyanide leach pit that he should not and
would not work in proximity to cyanide while suffering from an unclosed surgical wound.
After indicating his reluctance to work around cyanide, Jones went from the cyanide area
to the company office where he offered himself for any temporary assignment which would
not put him in the danger that he would be in at the cyanide leach pit. He was told to go
home; but it was not suggested in any way that his job was in jeopardy. The next day he was
called back to company headquarters and advised that he was being fired for insubordination.
9

Apparently thinking that the mine manager, the final authority, would not persist in his
decision to dismiss him if he knew the true facts about Jones's health and safety reasons for
refusing cyanide duty, Jones obtained an explanatory statement from his physician. The
doctor wrote that because Jones had a healing wound in his lower abdomen . . . he should
not be exposed to this substance due to the potential adverse effects this could have on wound
healing. Neither the protestations of Jones nor his physician's explanation influenced the
mine manager to change his decision to terminate Jones, and Jones's employment was
permanently terminated.
__________

9
Jones testified that if he had known he was going to lose his job for exercising this caution, he probably
would have gone ahead and faced the danger by entering the cyanide leach pit.
cian's explanation influenced the mine manager to change his decision to terminate Jones, and
Jones's employment was permanently terminated.
It is very difficult to understand how, under the handbook's disciplinary system, anyone
connected with the company could even suggest that Jones was guilty of an offense so
serious that immediate discharge without prior warning is appropriate. It is very clear from
all of the evidence that Jones's working in the cyanide area was not only a risk to him but was
also a violation of company policy; but even if Jones were wrong in refusing temporary duty
in the cyanide area, and even if the mine manager believed that he had the power to order
Jones into the cyanide leach pit, there was no insubordination here. On the day of the incident
when Jones declined, with appropriate explanation, to clean cyanide nozzles, there was no
talk of insubordination, no threat of terminationhe was simply sent home. What makes
Jones's discharge even more perplexing is that, before the final discharge decision was made,
management had time to review his personnel records and, more importantly, to verify the
legitimacy of Jones's refusal to work in the cyanide area. The mine manager knew of the
wound and had even seen the bandage on the wound. At trial the mine manager conceded that
Jones had the right to refuse the assignment in the leach pit. At the very worst, Jones's
unwillingness to go into the cyanide pit was a minor misunderstanding between Jones and his
superior concerning the company's right to compel Jones to perform this duty. This is the kind
of misunderstanding that could very well have been adjusted by the written reminders and
other steps provided for in the company employee handbook.
We would be unwarranted in saying that Judge McDaniel erred in upholding the jury's
conclusion that Jones was not insubordinate, that he had the right to refuse cyanide duty, and
that in these circumstances the company violated its contractual obligation to Jones by
discharging him without going through the measures prescribed by the company's disciplinary
system. In accord with the judgment of the trial court, we think that there is ample evidence to
support a jury finding that an employment contract existed, that Western States violated the
contract and that Jones suffered contract damages from such breach. Thus, having concluded
that the trial judge did not err in this regard, we go now to examine respondent's claim that
tort liability exists because of breach of the implied covenant of good faith and fair dealing.
The Tort of Breach of the Implied Covenant of Good Faith and Fair Dealing (Bad Faith
Tort)
[Headnote 9]
In K Mart Corp. v. Ponsock, 103 Nev. 39, 51, 732 P.2d 1364, 1372 {19S7), we held that
the covenant of good faith and fair dealing implied in an employment contract for
indefinite future employment could, under certain limited circumstances, be the basis for
tort liability in a manner comparable to the tort liability incurred by insurance companies
when they deal in bad faith with their policyholders.
1372 (1987), we held that the covenant of good faith and fair dealing implied in an
employment contract for indefinite future employment could, under certain limited
circumstances, be the basis for tort liability in a manner comparable to the tort liability
incurred by insurance companies when they deal in bad faith with their policyholders.
In K Mart we made it clear that mere breach of an employment contract does not of
itself give rise to tort damages and that the kind of breach of duty that brings into play the
bad faith tort arises only when there are special relationships between the tort-victim and the
tortfeasor . . . . K Mart, 103 Nev. at 49, 732 P.2d at 1370.
Where the employer-employee relationship becomes analogous to or approximates the
kind of special reliance, trust and dependency that is present in insurance cases, we
concluded in K Mart that betrayal of this kind of relationship may go well beyond the
bounds of ordinary liability for breach of contract and may result in the offending party's
being held tortiously liable for such perfidy. Id. at 48, 732 P.2d at 1370.
Although Jones relies most heavily on his claim for tortious discharge on Western State's
violation of this state's public policy favoring safety in the workplace, he also asserts a right
to recovery under a claim of tortious bad faith discharge. Preliminarily we note that the facts
of this case are rather far removed from those in K Mart insofar as the relationship of the
parties is concerned. In K Mart, the employee, Ponsock, had been a faithful employee for
almost ten years with every expectation of continuing his employment for an indefinite period
of time and at least until he became eligible for a retirement pension. Ponsock was hired
until retirement, and his contract of continued employment was not only terminated
arbitrarily but by artifice and fraud. Id. at 42, 732 P.2d at 1366. The kind of relationship that
existed between K Mart and Ponsock does not exist here; neither is there the kind of
pretension, misrepresentation and betrayal that was the essence of bad faith tort liability in K
Mart.
Jones's employment relationship with Western States presents a strong contrast to that of
Ponsock and K Mart. Although Jones had been designated as a permanent employee at the
time of his dismissal, he had worked less than two years. Ponsock, on the other hand, had
been hired on a more permanent basis, that is, until retirement, id. at 42, 732 P.2d at 1366,
and, after almost ten years on the job, had no reason to suspect that he was going to be
arbitrarily terminated, much less fraudulently deprived of his employment and retirement
rights.
If we use K Mart as the exemplar for that narrow class of cases in which, because of the
relationship of employer to employee, the offending conduct goes well beyond the bounds of
ordinary liability for breach of contract." id.
liability for breach of contract. id. at 48, 732 P.2d at 1370, we can see why Jones does not
fall within that class. Because the requisite relationship cannot have ripened under the facts of
this case, and, more importantly, because the kind of deception and perfidy which was the
essence of the bad faith tort in K Mart is not present here, we must reject any claim by Jones
for tort damages based on breach of the implied covenant of good faith and fair dealing. Next
we consider whether Jones has sustained a tort claim for tortious discharge.
Tortious Discharge: Public Policy Tort
[Headnote 10]
As pointed out in K Mart, 103 Nev. at 46, 732 P.2d at 1369, although a public policy tort
cannot ordinarily be committed absent the employer-employee relationship, the tort, the
wrong itself, is not dependent upon or directly related to a contract of continued employment
such as that existing in the present case. The tortious discharge, in other words, stands by
itself; and although it arises out of the employer-employee relationship, it is not dependent on
a contract of continued employment between the parties. The essence of a tortious discharge
is the wrongful, usually retaliatory, interruption of employment by means which are deemed
to be contrary to the public policy of this state. The prototypical tortious discharge case is
found in Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984), in which an employee
claimed to have been discharged to penalize him because he had filed a worker's
compensation claim. 100 Nev. at 62, 675 P.2d at 396. Comparable tortious discharges may
arise when an employer dismisses an employee in retaliation for the employee's doing of acts
which are consistent with or supportive of sound public policy and the common good.
[Headnote 11]
If an action for tortious discharge is to lie in the case now before us, it must first be
established that Western States has, in its discharge of Jones, violated the public policy of this
state. We conclude that it is violative of public policy for an employer to dismiss an employee
for refusing to work under conditions unreasonably dangerous to the employee.
The Nevada Occupational Safety and Health Act (NOSHA) states that [t]he legislature
finds that such safety and health in employment is a matter greatly affecting the public
interest of this state. NRS 618.015(2). After reviewing provisions in the California Labor
Code which are comparable to NOSHA, the California Court of Appeal had this to say about
public policy and the termination of employees because of their seeking a safe work place:
termination of employees because of their seeking a safe work place:
It requires little analysis to perceive that the legislative purpose underlying these
provisions would be substantially undermined if employers were permitted to discharge
employees simply for protesting working conditions which they reasonably believe
constitute a hazard to their own health or safety, or the health or safety of others.
Achievement of the statutory objectivea safe and healthy working environment for all
employeesrequires that employees be free to call their employer's attention to such
conditions, so that the employer can be made aware of their existence, and given
opportunity to correct them if correction is needed. The public policy thus implicated
extends beyond the question of fairness to the particular employee; it concerns
protection of employees against retaliatory dismissal for conduct which, in light of the
statutes, deserves to be encouraged, rather than inhibited. In that respect, the policy at
stake is similar to that which informed the court's decision in Petermann v.
International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184 [344 P.2d 25],
which held that the state's policy of encouraging truthful testimony before legislative
bodies would be undermined if an employer could terminate an employee for refusing
to commit perjury.
Hentzel v. Singer Co., 138 Cal.App.3d 290, 298 (1982).
[Headnote 12]
NRS 618.375 requires that all employers adopt practices which insure safe employment
and that employers do everything reasonably necessary to protect the lives, safety and health
of their employees. NRS 618.385(1) expressly prohibits employers from requiring employees
to go or be in any . . . place of employment which is not safe and healthful, a prohibition
which the jury certainly could have found to have been violated in this case. There can be no
doubt but that the public policy of this state favors safe employment practices and the
protection of the health and safety of workers on the job. NRS 618.015(2). This being the
case, we hold that dismissal of an employee for seeking a safe and healthy working
environment is contrary to the public policy of this state.
[Headnote 13]
Concluding that Western States violated public policy when it dismissed Jones does not
end the matter, however. In Sands Regent v. Valgardson, 105 Nev. 436, 439-40, 777 P.2d
898, 899900 {19S9), we refused to recognize an action for tortious discharge even though
the defendant had clearly violated Nevada's public policy against age discrimination.10
We refused to recognize an independent tort action for violation of the public policy
against age-discrimination because the plaintiffs in Valgardson had already recovered tort
damages in sums of $69,010.00 and $125,560.00 under the Age Discrimination in
Employment Act {ADEA), 29 U.S.C. 621 et seq., and under NRS 613.310 et seq. Id. at
439-40, 777 P.2d at 900.
900 (1989), we refused to recognize an action for tortious discharge even though the
defendant had clearly violated Nevada's public policy against age discrimination.
10
We
refused to recognize an independent tort action for violation of the public policy against
age-discrimination because the plaintiffs in Valgardson had already recovered tort damages in
sums of $69,010.00 and $125,560.00 under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. 621 et seq., and under NRS 613.310 et seq. Id. at 439-40, 777 P.2d at
900. It would not have been fair to the defendant in Valgardson to have allowed an additional
tort remedy under the common law Hansen type of tortious discharge.
It is quite obvious that the Valgardson plaintiffs were vindicating much more than a mere
contractual right to lost earnings. The recovery in Valgardson of $125,000.00 for wrongful
discharge was clearly a tort rather than a breach of contract recovery. This conclusion is
supported by the recent case of Rickel v. C.I.R., 900 F.2d 655 (3rd Cir. 1990), a tax case in
which the court held that damages in an Age Discrimination in Employment Act suit are not
taxable because they are analogous to redress of a tort claim for personal injury, irrespective
of non-personal components such as compensation for lost wages. The court stated:
[T]he scope of [the ADEA] goes beyond the mere employer-employee context,
protecting individuals from various forms of discrimination even if they are not yet in a
contractual relationship . . . [C]ourts in other jurisdictions . . . have characterized an
action to redress discrimination in the workplace as a tort claim for personal injuries
whether the discrimination was based on race, sex, or age.
Thus, focusing on the nature of the claim, we are convinced that the taxpayer's
discrimination suit under the ADEA was analogous to the assertion of a tort type claim
to redress a personal injury . . . . The taxpayer merely sought the remedies afforded by
the statute as compensation for the personal injury he suffered as a result of the
employer's act of discrimination; the requested remedies were not separate claims
in themselves to redress the employer's breach of a contract.
__________

10
In Valgardson, while basing our decision to deny a tort remedy on the availability of a specific statutory
remedy, we used some possibly misleading language when we said that we did not perceive that our public
policy against age discrimination is sufficiently strong and compelling to warrant another exception to the
at-will' employment doctrine. Id. at 439-40, 777 P.2d at 900. Certainly we did not mean to intimate that this
state's strong policy against age discrimination was not sufficiently strong to support remedial court action.
Employment termination based on age-discrimination does allow for an appropriate statutory remedy, which is
in a certain sense an exception to the at-will doctrine, a doctrine which in its purest form allows for termination
of employment for any reason. It is not correct, then, to say that age-discrimination is not a legally redressable
injury; it can only be said, as is said in the text, that no additional court-created remedies, comparable to the
remedy created in Hansen, arise out of age-based wrongful discharge for which tort recovery is available by
statute.
the remedies afforded by the statute as compensation for the personal injury he suffered
as a result of the employer's act of discrimination; the requested remedies were not
separate claims in themselves to redress the employer's breach of a contract. The
non-personal consequences of the discrimination, the loss of wages, does not transform
discrimination into a non-personal injury.
900 F.2d at 662-63 (emphasis added; citations omitted).
The dissent expresses the view that this case is indistinguishable from Valgardson, and
that Jones's rights are sufficiently vindicated by the remedy provided in NRS Chapter 618. On
the contrary, this case is quite clearly distinguishable from Valgardson. In Valgardson, the
statutory remedies at issue allowed discrimination victims to bring suit and, as discussed
above, recover tort damages for their injuries. Conversely, in the present case the statutory
remedy simply provides for an action by the administrator of the division of occupational
safety and health, and then only for reinstatement and past wages and not general damages.
11
The statutory remedy at issue here is far less comprehensive than the one in Valgardson, in
which damages of a tort-like nature had been recovered by the plaintiffs.
__________

11
The dissent agrees that Jones had a right not to be forced into an unsafe workplace. The only
disagreement is how this right should be enforced. We note that the statutory remedy under NRS 618.445 is
permissive and not mandatory. (Any employee aggrieved by a violation of subsection 1 may file a complaint . .
. .) That an employee may ask the administrator to intervene on his behalf and seek reinstatement and back-pay
seems to be a very inadequate remedy for the misconduct involved in trying to force a worker into an unsafe
place at the risk of being fired. This use of permissive language supports our conclusion that this legislative
remedy was intended to be supplemental and not exclusive.
The dissent also acknowledges that Western States' conduct was wrong, but then takes the position that
Jones' exclusive redress is contained in the Nevada occupational safety and health statutes (NOSHA). For
several reasons, this cannot be the case. NOSHA, by its very terms, applies only where:
the employee has filed any complaint or instituted or caused to be instituted any proceeding under or
related to this chapter or has testified or is about to testify in any such proceeding or because of the
exercise by the employee on behalf of himself or others of any right afforded by this chapter.
NRS 618.445(1). Thus, in order for this section to apply at all, some kind of action must have been instituted
under the statute. Here, Jones filed a common law action, and hence, NRS 618.445 is inapplicable.
A further reason is that the legislature does not declare the remedy to be exclusive as it does in other
instances. For example, in NRS 616.370(1), it is stated that worker's compensation remedies shall be
exclusive. The legislature's not making such a declaration here is an indication that the remedy was not intended
to be exclusive.
It is in precisely such cases, i.e., where no comprehensive statutory remedy exists, that
courts have been willing to create public policy tort liability. See Wehr v. Burroughs Corp.,
438 F.Supp. 1052, 1055 (E.D.Pa. 1977), aff'd, 619 F.2d 276 (3d Cir. 1980). Here, Jones had
no comprehensive statutory or other tort remedy available to compensate him for the civil
wrong committed against him by Western States. He was, therefore, entitled to pursue an
action for tortious discharge against his employer.
12
For this reason, the judgment against
Western States is affirmed.
Punitive Damages
[Headnote 14]
The overall impression one gets of this case is that mine manager Rice asserted his
authority over Jones simply to show him who was boss. There is no explanation of why,
after he became thoroughly aware of the circumstances of Jones's refusal to go into the
cyanide pit until his surgical wound closed, Rice still persisted in terminating Jones. Western
States placed Jones in a terrible position: Jones knew that company policy and directives
prohibited him from entering the cyanide area; yet his doing exactly the proper thing with
respect to Western States's own safety policies resulted in his losing his job.
__________

12
Appellant has raised as an issue on this appeal that Jones's public policy tort action is preempted because
all mine safety issues are governed by the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.
(1982). The trial court rejected the claim of federal preemption in these terms:
The plaintiff's cause of action states clearly that because of an unhealed surgical incision from a
surgical operation that he was susceptible to cyanide poisoning at that particular time. That the
Defendant's agents and employees were aware of the danger to the Plaintiff ROBERT C. JONES and still
insisted that he work around cyanide. That he was justified in refusing to so work because of his
particular physical condition at that time and place and therefore he was unlawfully discharged.
Thus there is no allegation that the Defendant was violating either the Federal or State Mine Safety
Codes by requiring employees to work under unsafe conditions.
We have examined carefully Western State's argument and authorities, particularly the case of Olguin v.
Inspiration Consolidated Copper Co., 740 F.2d 1468 (9th Cir. 1984), and have concluded that the trial court was
correct in ruling that Western State's abusive treatment of Jones is actionable under state law. Jones, unlike
Olguin, has not attempted to use any federal law or redress procedures, nor has he alleged any violation of the
Mine Safety and Health Act. Nevada's interest in giving a remedy for such tortious actions is a substantial one;
and we agree with the trial court that federal preemption does not prevent Jones from pursuing his state remedy.
See Echard v. Devine, 726 F.Supp. 1045, 1049 (N.D.W.Va. 1989) (holding that Federal Mine Safety and Health
Act does not preempt common-law claims for tortious discharge; distinguishing Olguin where a state has a
strong interest in mine safety).
safety policies resulted in his losing his job. In effect Western States fired Jones for
complying with company policy.
The jury in this case awarded tort damages, general and punitive. Judge McDaniel
instructed the jury that it could assess punitive damages against the employer in this case if it
found fraud, oppression or malice, express or implied. There is evidence to support a jury
finding that Western States was guilty of the intentional public policy tort, tortious discharge.
13
There is evidence to support the conclusion that the charge of insubordination was a
contrivance and a fraud. There is evidence to support malicious intent and oppressiveness on
the part of Western States. Therefore, we may not disturb the trial court's determination that
the punitive damage award will be upheld.
Although Jones is not entitled to recover on his claim for tort damages for breach of the
implied covenant of good faith and fair dealing, he is entitled to recover contract damages on
his claim for breach of the employment contract and to recover tort damages for tortious
discharge. We do not perceive any error on the part of Judge McDaniel in his conduct of the
trial of this case. The judgment of the trial court is, therefore, affirmed.
Rose, J., concurs.
Mowbray, C. J., concurring:
I join in and agree with the majority opinion; however, I wish to address several of the
charges made in the dissent.
PRELIMINARY COMMENTS
The dissenting author quotes at length a series of rhetorical questions that I posed from the
bench during the oral argument of D'Angelo v. Gardner, et al.
1
The questions were focused
on the inquiry: "Is this the decent thing to do?"
__________

13
As indicated above, we find it unnecessary to the disposition of this appeal to consider the assignments of
error relative to the tort of intentional infliction of emotional distress.

1
One of the justices stated from the bench:
So we're here over twenty bucks. . . . But he [D'Angelo] had twelve years of service. That's twice the term
that we have on this court, our terms are sixthat's three times the terms of the President of the United
States. That's three times the terms of the Governor across the street. Now, he may be a lot of things that I
don't know about. But this is all I know about him. And, he is axed because of that. Now, this is what the
record reflects to me. Now, he wants to go in to a jury trial and he tries to get a jury trial, but the judge
says no, I'm going to cut you off at the gate. You can't have your jury trial. What bothered me when I
reviewed those facts was, is this the decent thing to do? Is this living by the Golden Rule, when a man has
worked for twelve years, based upon what I know. Is he married, does he have children, does he have
inquiry: Is this the decent thing to do? I stand by those questions. It is the duty of this court
to protect the interests of all who come before it, not just the privileged and the powerful. A
court of law should not be blind to justice.
2

The dissent also suggests that the majority condones theft. This suggestion is an insult
both to the integrity of this court, and to the intelligence of the reader.
3

D'ANGELO v. GARDNER, ET. AL, DOCKET NO. 20452
The author of the dissent complains that the majority's ruling strikes at the validity or
decency of the at-will employment doctrine. I suggest that my colleague misapprehends the
majority opinion.
The primary issue addressed by the majority is whether appellant D'Angelo presented
sufficient evidence of an implied-in-fact contract to survive summary judgment. The majority
properly concludes, based upon the facts detailed in the majority opinion, that the evidence
can support a prima facie cause of action. Nothing in the majority opinion invalidates or
decrees an end to the at-will presumption.
Since the at-will presumption remains intact, one must wonder at the apocalyptic
predictions set forth in the dissent. These misplaced and fanciful fears reflect a tone of
consternation that permeates the entire dissent. The dissenting author's dismay may well
result from the majority's unwillingness to acquiesce in the dissenter's attempt to transform
the at-will presumption into an at-will conclusion.
4
This state has long recognized
implied-in-fact contracts in the employment context.
______________
house payments. Is this what at will means, that you can do this to employees? Are they a bag of oats?
. . . .
But this is how I see this case. For twenty dollars involved, twelve years of his life, he gets the ax.

2
There is an unfortunate trend among modern courts to regard justice as the unspeakable J-word. I, for one,
reject the idea that justice is an irrelevant consideration for a court of law. It is well to remember that he who
does justice will live in the presence of the Lord. Psalms 15:2-5.

3
I am frankly quite concerned about the dissent's ready willingness to sully Mr. D'Angelo's reputation, and
summarily treat him as a thief. Dishonesty is dishonesty exhorts the dissenting author. The whole point, of
course, is that we do not know whether the man was a thief or an innocent victim. And the reason we do not
know this is because Mr. D'Angelo has not yet had his day in court.

4
The at-will presumption is indeed a presumption, not a conclusion. When employers make promises of
continued employment to employees, those promises should be binding. Employers have duties to employees
just as employees have duties to employers. Their relationship is a two-way street.
This state has long recognized implied-in-fact contracts in the employment context. In
Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983), this court concluded that
an employer was contractually bound to honor a termination clause appearing in an employee
handbook.
5
The Ahmad opinion has never been overruled, and it is controlling in the case
before us.
Instead of adhering to our holding in Ahmad, the dissenting author glosses over that
precedent in favor of those cases with which he agrees.
6
In particular, he relies upon
Valgardson
7
and Vancheri
8
. Neither case supports the dissenting author's position.
In Valgardson, this court determined that no provision in the handbook modified the
Sands' common-law right to discharge [its employees] at its whim. Valgardson, 105 Nev. at
439, 777 P.2d at 899 (citing Smith v. Cladianos, 104 Nev. 67, 68-69, 752 P.2d 233, 234
(1988)). Unlike GEMCO's employee handbook, the Sands' handbook contained no language
which might imply permanent employment. Thus, Valgardson is distinguishable from the
instant case.
The dissent's reliance on Vancheri is equally misplaced. In Vancheri, a breach of contract
action was tried before the jury. Vancheri, 105 Nev. at 419, 777 P.2d at 368. At trial,
Vancheri failed to introduce any independent evidence of an express or implied contract other
than his understanding of the arrangement. Id. at 421, 777 P.2d at 369. At the close of the
case-in-chief, the district court dismissed the action pursuant to NRCP 41(b). Id. at 419-420,
777 P.2d at 368. We affirmed the judgment, concluding that [c]ontracts of employment
cannot be created by the subjective expectations of an employee. Id. at 421, 777 P.2d at 369.
In the case before us, however, Mr. D'Angelo presents much more than subjective
expectations. As the majority opinion makes clear, the language included in the employee
handbook, together with GEMCO's use of the handbook as the basis for D'Angelo's dismissal,
raises an inference of an obligation of continued employment.
Thus, notwithstanding the best efforts of the dissent, existing case law cannot support a
summary judgment in the present case. Perhaps when the clouds of dogma clear, and the
opinion is viewed in the clear light of day, the dissent will perceive its error.
__________

5
For a complete discussion of Ahmad, I refer the reader to the majority opinion, pp. 3-4.

6
Perhaps because he dissented in Ahmad, the dissenting author concludes that he can unilaterally disregard
the precedent set forth in that case.

7
Sands Regent v. Valgardson, 105 Nev. 436, 777 P.2d 898 (1989).

8
Vancheri v. GNLV Corp., 105 Nev., 417, 777 P.2d 366 (1989).
Accordingly, I concur in the majority's decision to reverse Judge Thompson's order
granting summary judgment and to remand this case to the district court for a trial on the
merits.
This is one of the most egregious cases ever to come before this court. Mr. Jones was
ordered by his supervisors to work around cyanide while suffering from an open surgical
wound. Mr. Jones had learned from company training sessions that this would be dangerous.
He informed his supervisors that it would be unsafe to work around the cyanide area while he
still had the open wound. Mr. Jones was fired for this insubordination.
Nevada recognizes a claim of tortious discharge in violation of public policy. See Hansen
v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984). The discharge of Mr. Jones violated public
policy. Why then, does the dissent conclude that no cause of action lies?
To answer this question, it is helpful to consider the following statements made by the
dissenting author during oral argument of this case:
I don't think there's any division at all on this court, there's no need for emotion, this
man was wrongfully treated . . . .
Every member of this court, in the original opinion that was recalled, agreed that this
man was wrongfully treatedso there's not an issue there. There are, however, legal
issues. And, unfortunately, this court has to deal with legal issues. That's all I wanted to
say.
On the surface, the rationale advanced by the dissenting author seems almost beyond
reproach. There's nothing we can do about it is the outcry; We are constrained by the law.
A closer look at the dissent exposes more insidious motives.
As the legal issue that bars a cause of action, the dissenting author cites NRS
618.445(2), which provides as follows:
Any employee aggrieved by a violation of subsection 1 may file a complaint for the
relief afforded under subsection 3, after first notifying his employer and the division of
his intention to file the complaint. Any complaint must be filed with the division within
30 days after the violation has occurred and must set forth in writing the facts
constituting the violation.
This statutory provision is irrelevant to the instant case. Mr. Jones brought a common law
action for wrongful discharge in violation of public policy; NRS 618.445(2) does not address
or in any way preclude that common law tort.
any way preclude that common law tort. Rather, that statute creates a right of reinstatement
for workers who have been discharged for filing a complaint, testifying in a proceeding, or
exercising a right afforded by NOSHA. See NRS 618.445(1).
9
Thus, no genuine legal issue
precludes Mr. Jones from bringing this tort action.
The dissenting author claims that there is nothing we can do, given the existing legal
parameters, to redress the wrongful treatment suffered by Mr. Jones. This claim is spurious. It
is offered only to mask a desire to abridge the rights of employees to be free of arbitrary or
unjust discharge.
Accordingly, I concur in the majority's decision to affirm the judgment of the district court.
CONCLUSION
I, therefore, agree with the majority opinion in D'Angelo v. Gardner, et. al., reversing the
summary judgment of Judge Thompson and remanding the case for a trial on the merits,
thereby ensuring that Mr. D'Angelo shall have his day in court. I further agree with the
majority that the jury verdict in Western States Mineral Corp. v. Jones be affirmed and that
the award of damages to Mr. Jones be sustained.
Steffen, J., with whom Young, J., joins in dissenting:
PRELIMINARY COMMENT
Under Nevada Rules of Appellate Procedure, Rule 40(c)(2), petitions for rehearing are
proper only: (i) [w]hen it appears that the court has overlooked or misapprehended a
material matter in the record or otherwise, or (ii) [i]n such other circumstances as will
promote substantial justice. See also In re Petition to Recall Dunleavy, 104 Nev. 784, 769
P.2d 1271 (1988) (presence of conditions specified in NRAP 40(c)(2)(i) or (ii) essential to
rehearing). The facts have not changed since we originally heard and reviewed these appeals.
No member of the majority has concluded that the law announced in the first opinions which
were recalled was in error, thus resulting in a miscarriage of justice. The reason for granting
rehearing, with its attendant costs, thus remains a quandary.
__________

9
NRS 618.445(1), referred to by subsection (2) states the following:
A person shall not discharge or in any manner discriminate against any employee because the
employee has filed any complaint or instituted or caused to be instituted any proceeding under or related
to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by
the employee on behalf of himself or others of any right afforded by this chapter.
PRELIMINARY OVERVIEW
This dissent is neither an apologia nor a protagonism concerning at-will employment. It is
a statement of what is (prior to the instant majority opinion), rather than a philosophical
proposition of what ought to be. It is also hopefully a reminder of the need for stability and
predictability in the law as well as a reaffirmation of the proposition that judges should be
reluctant to rush in where legislators fear to tread. It is also begrudgingly written in light of
the constraints and non-renewability of time and a recognition that dissents are usually fodder
for bonfires of the vanities, rarely read or heeded, and a source of congestion for consumers
with increasingly limited storage space. Nevertheless, I am constrained to express my strong
opposition to both the reasoning and the results of the majority opinion as a harbinger of
things to come.
As noted in Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983), Nevada
has not as yet seen fit to legislatively abrogate the common law rule concerning at-will'
employment. This rule, which remains in general effect throughout the United States,
provides that employment for an indefinite term may be terminated at any time for any reason
or for no reason by either the employee or the employer without legal liability. Id. at 596,
668 P.2d at 262 (Steffen, J. dissenting).
1

Fortunately, the evolution of the common law respecting the at-will doctrine has produced
an ameliorative effect on the harshness of its pristine dictates. As of 1988, apparently a total
of thirty-nine states had placed limitations of one form or another on the doctrine. Summers,
Labor Law as the Century Turns: A Changing of the Guard, 67 Neb.L.Rev. 7, 14 (1988). In
the cited article, Professor Summers also states:
Although not all courts have recognized exceptions or limitations to the employment
at will doctrine, courts in thirty-two states have adopted public policy exceptions,
eleven states have applied the covenant of good faith and fair dealing, and twenty-nine
states have used employee handbooks to find contractual limitations on terminations.
Id. at 13, 14.
Heretofore, this court has also responsibly advanced the common law doctrine concerning
at-will employment by recognizing strong public policy exceptions, e.g., Hansen v. Harrah's,
100 Nev. 60, 675 P.2d 394 (1984) (discharge in retaliation for filing workmen's compensation
claim), and limitations resulting from express contracts evidenced in part by clear
commitments in employee handbooks.
__________

1
During the 1991 legislative session, an effort to adopt legislation that would have eliminated at-will
employment in Nevada did not survive consideration at the committee level.
express contracts evidenced in part by clear commitments in employee handbooks. American
Bank Stationery v. Farmer, 106 Nev. 698, 799 P.2d 1100 (1990). When the smoke clears on
today's opinion, and it is again seen in the clear light of day, it will be evident that, despite
surface protestations to the contrary, the majority has come perilously close to taking the
fallen baton from the legislature and decreeing an end to at-will employment.
Although I do concur with the majority's conclusion that summary judgment was proper
on D'Angelo's defamation claims, I otherwise strongly dissent from the remainder of the
majority's opinion.
2

I submit that the majority's reversal of the district court on the issue of wrongful discharge
creates a quagmire in the law of wrongful discharge and at-will employment in the state of
Nevada. Employment terminations in Nevada that implicate employee handbooks and some
form of discipline procedure now provide at least, to borrow a phrase uniquely apropos to our
state, a roll of the dice opportunity for imposing liability for wrongful discharge. Moreover,
as I have stressed previously (Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261
(1983) (Steffen, J. dissenting)), I do not view the majority position as being labor-friendly. A
person need not be clairvoyant to predict employer reactions to such judicial incursions in
traditional employer-employee rights and relationships. Employee manuals and discipline
structures are frequently expressive of policies intended to benefit employees. As the
decisional law now stands in Nevada, many employers will seek refuge from our rulings by
eliminating or severely restricting the liability components fashioned by this court.
3
Although it is by no means clear from the record that GEMCO's employee handbooks even
applied to D'Angelo as a management level employee, I shall assume their applicability
for purposes of this dissent.
__________

2
Presumably because this appeal arose from summary judgment against D'Angelo on all issues, no point was
raised on appeal concerning a possible ERISA preemption resulting from the contention below that absent the
termination, D'Angelo would have received a much larger pension after only one more year on the job. I
therefore express no opinion as to whether this case may be subject to an ERISA preemption. See Marcoz v.
Summa Corp., 106 Nev. 737, 801 P.2d 1346 (1990).

3
The primary difference between the instant majority opinion and the original D'Angelo opinion that was
recalled after the petition for rehearing was granted appears to be a footnote comment which was added to the
current opinion. I have grave doubts that an employer can easily prevent this inference [that a handbook formed
part of the employment contract of the parties] from arising by incorporating specific disclaimers of implied
contractual liability. Based upon the majority's current ruling, it seems that the gratuitous footnote will have little
meaning in future cases where handbook references may be utilized to buttress contentions of reliance based
upon a combination of factors, including a history of fairness in approaching
Although it is by no means clear from the record that GEMCO's employee handbooks even
applied to D'Angelo as a management level employee, I shall assume their applicability for
purposes of this dissent. I suggest, however, that the handbooks supply no basis in law or fact
for concluding that the employment relationship between GEMCO and D'Angelo was
anything other than at-will.
Our recent decisions in Sands Regent v. Valgardson, 105 Nev. 436, 777 P.2d 898 (1989),
and Vancheri v. GNLV Corp., 105 Nev. 417, 777 P.2d 366 (1989), should be dispositive of
this appeal. In disregarding the obvious appositiveness of these two cases to the instant case,
the majority has introduced confusion and unpredictability to Nevada's law on wrongful
discharge and at-will employment.
In its analysis of Valgardson, the majority derives the proposition that [t]he relationship
of an employer and employee may be such that the employer does not have the right to
discharge the employee without first abiding by conditions relating to dismissal which are
either expressly agreed upon by the parties or inferable from the dealings and practices of the
parties. (Emphasis mine.) In Valgardson we did no more than recognize that there was no
express contract between the complaining parties, Valgardson and Metzer, and Sands Regent
that obligated the latter to provide continuing employment to the former. At no time in
Valgardson did we declare or even hint that an obligation of continued employment existed
by virtue of inferences derived from the dealings and practices of the parties. Valgardson
also emphasized that wrongful or bad faith discharge presupposes the existence of an
employment agreement without which no cause of action exists.
Moreover, a basis for relief under a wrongful discharge theory was far more compelling in
Valgardson than in the instant case. In Valgardson, however, we not only concluded that a
termination based upon age discrimination (statutorily prohibited in Nevada) did not
constitute an exception to the at-will employment doctrine, but we also held that an employee
handbook containing a provision analyzed by this court in Smith v. Cladianos, 104 Nev. 67,
752 P.2d 233 (1988), did not modify the Sands' common law right to discharge [its
employees] at its whim.
__________
employee terminations. In any event, it is clear from the facile panacea suggested by the majority that an
employer in Nevada is no longer free to express company policies in effect at any given time without express
statements of reminder to employees that the handbook confers no rights, express or implied, and that employees
may expect to be terminated at any time, with or without cause. If this is a positive development in the area of
labor-management relations, I fail to see it.
Valgardson, 105 Nev. at 439, 777 P.2d at 899 (quoting Cladianos, 104 Nev. at 68-69, 752
P.2d at 234).
Importantly, the Sands Regent handbook considered in both Cladianos and Valgardson
contained a provision establishing a 90-day probationary period for all employees during
which a supervisor could terminate an employee's services without prior notice. Cladianos,
104 Nev. at 68, n.3, 752 P.2d at 234. This court refrained from concluding that by inference,
terminations occurring after the probationary period required prior notice or that the provision
inferred some entitlement to continued employment.
By contrast, the handbook in the instant case does mention proper cause under the
Work Rules section of the one handbook, and primary reasons considered as grounds for
discharge in the Discharge section of the other handbook.
4
Thus, the majority, after noting
that D'Angelo was required to read the handbook at the time of his hiring, observes that the
handbook addresses the subject of discharge, and in addition to referring to proper cause'
for dismissal, sets out in some detail the primary reasons which are considered by GEMCO
as grounds for discharge.'
5
The proper cause reference in the other handbook under the
Work Rules section refers to a few general rules considered by the company to be serious
and a proper cause for discharge.
6
The record reflects that D'Angelo received no
commitments or promises regarding length or security of his employment when he was
hired.
__________

4
The majority opinion confusingly relies upon two handbooks as if, in combination, they constituted a
single, applicable document. Because I do not believe the handbooks support the majority position either singly
or in tandem, I have addressed them both. However, during the hearing below, and a colloquy between counsel
and the court, the district court judge ruled that the most recent handbook (exhibit 17) superseded the earlier
handbook (exhibit 16). D'Angelo's counsel voiced no objection to the ruling.

5
The entire paragraph under the handbook section entitled Discharge reads as follows:
Unfortunately, it occasionally becomes necessary to discharge an employee. So that you may be aware of
the primary reasons which are considered by Gemco as grounds for discharge, they are listed here . . . .
The provision then lists sixteen specific reasons which presumably reflect conduct that is viewed most
seriously by the employer.

6
The complete paragraph including the quoted language reads as follows:
Listed here are a few general rules applicable throughout the Company. These are all obvious and
necessary for the conduct of any business. Deviations from these rules are always considered most seious
[sic] and are deemed by the Company to be proper cause for discharge . . . .
The referenced provision then proceeds to specify twenty-one work rules and then concludes with the general
statement that [t]here are many other
The record reflects that D'Angelo received no commitments or promises regarding length
or security of his employment when he was hired. The only foundation upon which the
majority's ruling may be fashioned is the contents of the two handbooks. In that regard, the
majority points to the fact the GEMCO informed the labor commissioner that D'Angelo had
been terminated for proper cause resulting from the violation of work rule number 6, as a
basis for concluding that a trier of fact could find an express or implied contract of continued
employment terminable only for cause. Disregarded entirely is the elementary principle that
at-will employment relationships may be terminated for any cause (proper or otherwise) or no
cause at all. It should hardly be surprising that most at-will terminations will occur for some
articulable cause. The inescapable conclusion to be reached from the majority's logic is that
employers who desire to maintain an at-will work force should never specify reasons for
discharging employees. Another lesson to be learned from the majority's logic is that
employers, if they want to risk the liability hazards of an employees' handbook, should never
enlighten employees as to the primary reasons for employee terminations if they intend to
maintain an at-will relationship with their employees. Finally, under the majority's logic and
ruling, employers should realize that whenever they provide employee handbooks
encompassing discipline polices and references to cause or proper cause every
termination, if challenged, will present a triable issue as to whether there was an express or
implied contract for continued employment.
Selectively choosing excerpts from the two handbooks, the majority notes in general that
procedures for discharge are provided and that any discharge based on an employee's
failure to perform work as required' must be preceded by written notice to the employee'
(quoting with unwarranted paraphrase from the last, unnumbered paragraph under the
Discharge section of one of the handbooks).
7
I suggest that the majority has misinterpreted
the thrust of the quoted language. It appears to me that the company sought to enlighten
employees concerning primary reasons for discharge including, for example, dishonestly,
falsification of records, use of alcohol and drugs, etc., that would clearly result in a
termination.
____________
procedures which apply to your job. In the Gemco/Memco Welcomes You section at the beginning of this
handbook, it states:
This handbook is not for general publication, but is the property of the Company. It is given to you
for your information and to aid you in understanding our way of doing business and what is expected of
you as a member of the GEMCO/MEMCO team.

7
The complete paragraph paraphrased in part by the majority reads as follows:
Except during the initial trial period, any discharge based on an employee's failure to perform work as
required, will have been preceded by a written notice to the employee, clearly setting forth deficiencies in
work performance.
sons for discharge including, for example, dishonestly, falsification of records, use of alcohol
and drugs, etc., that would clearly result in a termination. The concluding reference in the
unnumbered paragraph quoted by the majority refers to any discharge based on an
employee's failure to perform work as required, will have been preceded by a written notice
to the employee, clearly setting forth deficiencies in work performance. (Emphasis added.) If
the referenced language simply referred to all discharges as concluded by the majority, the
qualifying language following the reference to discharge would be totally redundant. In my
opinion, the company was simply stating, as a matter of policy, that when an employee's work
is deficient, any termination will have been preceded by a notice. A failure to perform is far
removed from a willful violation of an implied commitment to be honest and law abiding. If
an employee steals or uses drugs on the job, most employers would likely terminate the
employment relationship without prior notice. On the other hand, it reflects good business
sense to notify honorable employees of performance deficiencies in order to provide a basis
for improvement and retention. I suggest that this was both the import and basic thrust of the
handbook language quoted by the majority.
I have dwelled at some length on the handbook language because the majority has parsed
the contents of both the current and the obsolete handbooks to create a patchwork of terms
upon which to base a construct for an implied agreement of continued employment.
8
Such a
construct derives entirely from the provisions of policy handbooks taken out of context,
which reflects no bargaining between the parties and no representations or suggestions
concerning contractual rights of continued employment.
__________

8
In my previous dissent to the first D'Angelo opinion issued by this court, I addressed the majority's
conclusion that GEMCO was required to provide some form of fair adjudication procedure in its termination
process. Unfortunately, the majority opinion was thereafter modified and filed without my knowledge or that of
Justice Young, who joined in the dissent. My references to the majority's requirement that some kind of fair
adjudication procedure be engrafted on the employee's handbook were, therefore, no longer referable to
language contained within the majority opinion. I nevertheless refer to the position earlier taken by the author of
both majority opinions and thereafter abandoned, because the complete absence of any form of structured
discipline or adjudicative procedures in either of the GEMCO handbooks leaves a major void in the majority's
logic concerning the sufficiency of the handbooks in forming the basis for an implied contract for continuing
employment. By implication, the majority continues to impose on GEMCO some form of adjudicative
requirement that would provide an internal basis for determining proper cause, despite GEMCO's statement in
the handbook that deviations from 21 listed rules would be deemed (a term descriptive of a given as opposed
to a point of controversy or adjudication) proper cause for discharge.
Indeed, as previously noted, neither handbook provides any procedure whatsoever for
terminating an employee. What principle, therefore, must the jury embrace at trial upon
which to judge the propriety of GEMCO's procedure in terminating D'Angelo? Will the
majority authorize a jury instruction consonant with its earlier pronouncement that GEMCO
was required to have some form of fair adjudicative procedure written into its handbook? Or
perhaps the unexpressed principle to be gleaned from the majority's ruling is that whenever a
handbook mentions such talismanic terms as proper cause or primary reasons for
discharge without providing any procedure for imposing discipline, including termination, a
court or jury will be the arbiter for determining whether an employee may be discharged. The
majority seeks to distinguish Vancheri on the basis that the instant case involves a handbook
containing disciplinary procedures and mention of the words proper cause, whereas the
handbook in Vancheri had neither. I do not find the majority's reasoning persuasive. It was
uncontroverted in Vancheri that GNLV had an established disciplinary system of procedures
employed prior to termination.
9
Moreover, in Vancheri this court unanimously observed
that:
Standardized disciplinary procedures are generally positive additions to a business.
They provide employers a method of cautioning employees, and afford employees an
opportunity to improve job performance in order to retain employment. They also
create a general consistency and security in the work place. If we were to hold that the
establishment of standard disciplinary procedures for employees is, in and of itself,
sufficient to convert an at-will employee to an employee who can be fired only for
cause, employers would be reluctant to continue to establish them.
Vancheri, 105 Nev. at 422, 777 P.2d at 369-70 (emphasis added).
__________

9
The uncontroverted evidence in Vancheri revealed an established multistepped disciplinary procedure used
by GNLV prior to discharging its employees. The steps included a verbal warning, a written warning, a second
written warning, and a two-week suspension from work prior to the ultimate step of termination. See Vancheri,
105 Nev. at 419, 777 P.2d at 367-68. Although these procedures were not incorporated in the employees'
handbook, they were firmly established disciplinary procedures as evidenced by uncontradicted testimony and
documentary evidence adduced at trial.
By contrast, and notwithstanding the majority's repetitive reference to disciplinary procedures in the instant
case, the only procedure set forth in either of the handbooks is the reference to the written notice of
deficiencies provided to employees prior to termination. Even if it were assumed, as the majority does, that the
referenced provision applied to all terminations, at no place in the handbook does it state or infer that the notice
must be acted upon in any way prior to discharging an employee. There is no machinery for any type of review,
hearing or pre-termination period of correction prior to the employer's right of termination in the handbooks
involved in the instant case.
Another reason why, in my view, the case for wrongful discharge in Vancheri was much
stronger than D'Angelo's is that Vancheri was induced by GNLV to leave secure employment
with twice the salary under circumstances that included representations that he would have a
long and successful association with the GNLV family. Id. at 419, 777 P.2d at 367. And yet,
despite the fact that Vancheri was denied the established disciplinary procedures prior to his
discharge, and was given solid indications of long-term employment when he was induced to
leave his existing place of employment, we held that [b]ased upon the law and policy
considerations, we hold that general expressions of job longevity and advancement, and the
established disciplinary procedure as described in this case, are not, as a matter of law,
sufficient to establish a prima facie case rebutting the at-will employment presumption. Id.
at 422, 777 P.2d at 370. D'Angelo, on the other hand, was neither induced to leave other
employment to join GEMCO nor received assurances and representations of secure,
long-term employment at the time of his hiring. There were essentially no discharge
procedures established in the GEMCO handbooks, another factor to be contrasted with the
detailed, well established pre-termination procedures established at GNLV. Finally, in
Vancheri we observed that Vancheri testified that it was his understanding' that the
employment was for a fixed period, but that he failed to offer any independent evidence
indicating the terms of an employment contract, and he was never told that his employment
would be terminated only for cause or that he would have employment for life or a specified
period of time. Id. at 421-22, 777 P.2d at 369. We quite properly concluded that [c]ontracts
of employment cannot be created by the subjective expectations of an employee. Id. at 421,
777 P.2d at 369. As I have previously observed at length, there are far more compelling
reasons why we should sustain the district court's ruling here than in Vancheri.
I again suggest that the majority's disregard of the clear doctrine recently announced by
this court in Vancheri introduces nothing but uncertainty and confusion in the area of
wrongful discharge and at-will employment. Moreover, the majority undermines this court's
unanimous declaration in Vancheri concerning the importance of permitting employers to
develop sound disciplinary procedures to caution employees, afford employees an opportunity
to improve, and create a general consistency and security in the work place. Finally, in
Vancheri we recognized the hazard to employees that would likely result in the form of
employer reaction to any ruling that would suggest that the establishment of standard
disciplinary procedures would, in and of itself, transmute at-will employment to employment
terminable only for cause. Because the instant ruling presents nothing more than a judicial
connection of disjointed handbook terms relating to unstructured statements concerning
discipline or discharge, the majority has thoroughly undermined this court's responsible
expression of support for standardized discipline policies.
more than a judicial connection of disjointed handbook terms relating to unstructured
statements concerning discipline or discharge, the majority has thoroughly undermined this
court's responsible expression of support for standardized discipline policies.
The extreme position taken by the majority in the instant case is also revealed by
comparing it to this court's recent, unanimous ruling in American Bank Stationery v. Farmer,
106 Nev. 698, 799 P.2d 1100 (1990). In Farmer, this court discerned the presence of
substantial evidence of an express promise that if Farmer accepted the proffered employment,
he would be subject to termination only for cause. That evidence was buttressed by a bilateral
review of the employee handbook at the time of Farmer's hiring, which unequivocally stated
that an employee could be terminated only for cause. The Farmer court nevertheless stated:
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 233 (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.
Id. at 763, 799 P.2d at 1102. (emphasis in text).
Despite the language in Farmer stressing and emphasizing that employee handbook
provisions regarding termination do not automatically transmute at-will employment into for
cause employment, and that Farmer prevailed because of an express contract negativing a
right to terminate for reasons other than cause, the majority today emasculates, disregards,
and otherwise totally relegates the Farmer crescendo into inconsequential verbiage. Here,
there is not even a pretense of an express agreement for employment subject to termination
only for cause. Nor is there any handbook language that would infer, imply or even hint that
D'Angelo had an expectancy for continued employment terminable only for cause. Finally,
there is no evidence of any bargaining between the parties that might serve as the basis for
finding an implied contract, let alone an express contract, for continued employment subject
to discharge only for cause.
Before rightfully terminating this lengthy dissent, it is necessary to grapple with an
added nuance that developed during argument on rehearing. Because this is an appeal from
summary judgment, attention must be given to the present posture of D'Angelo's case as it is
remanded for trial on the merits.
First, as far as the law of the case is discernible, the trial below will proceed on the basis
that a jury may conclude that both GEMCO and D'Angelo intended to be bound by the terms
of the handbook, and that as a result, an inference may arise that there was an obligation of
continued employment for the following reasons: (1) at the time of D'Angelo's hiring, and as
a condition of employment, he was required to read and acknowledge his understanding of
the employee handbook; (2) the handbook (it apparently doesn't matter whether it is the
obsolete handbook or the current handbook, as the majority has relied on both) deals with the
subject of discharge; (3) the handbook makes reference to proper cause for dismissal; (4)
the handbook sets out in some detail the primary reasons which are considered by GEMCO
as grounds for discharge;' and (5) any discharge based on an employee's failure to perform
work as required must be preceded by written notice to the employee.
Also, the majority determined inferentially that GEMCO's termination of D'Angelo was
arguably faulty, and therefore subject to resolution by a jury, because (1) taking the word of
two employees who said they had personal knowledge that D'Angelo had discounted current
film was insufficient as a matter of law to justify termination, or (2) the petty incident [of
discounting current film] was an inadequate basis to justify termination under a proper cause
standard. I find both conclusions equally troubling. Based upon a few disjointed, equivocal
handbook provisions, the majority has now determined that any determination by GEMCO to
terminate an employee is contestable before a jury as the final arbiter of proper cause.
The majority has also concluded that a willful violation of a company policy that results in
the unauthorized gift of twenty dollars worth of company property to a friend of an employee
is petty. This aspect of the majority's conclusion was emphasized during argument at
rehearing. One of the justices stated from the bench:
So we're here over twenty bucks. . . . But he [D'Angelo] had twelve years of service.
That's twice the term that we have on this court, our terms are six--that's three times the
terms of the President of the United States. That's three times the terms of the Governor
across the street. Now, he may be a lot of things that I don't know about. But this is all I
know about him. And, he is axed because of that. Now, this is what the record reflects
to me.
this is what the record reflects to me. Now, he wants to go in to a jury trial and he tries
to get a jury trial, but the judge says no, I'm going to cut you off at the gate. You can't
have your jury trial. What bothered me when I reviewed those facts was, is this the
decent thing to do? Is this living by the Golden Rule, when a man has worked for
twelve years, based upon what I know. Is he married, does he have children, does he
have house payments? Is this what at will means, that you can do this to employees?
Are they a bag of oats?
. . . .
But this is how I see this case. For twenty dollars involved, twelve years of his life, he
gets the ax.
10

I quote the above comments from the bench, along with the majority's characterization of the
incident as petty because I believe it explains, where the legal reasoning cannot, the true
basis for the majority's ruling.
11
I am also fearful, absent discussion by way of this dissent,
that a combination of the majority's assignation of pettiness to the unauthorized
discounts and the quoted comments from the bench will be prequel to plaintiff's
summation at trial.
____________

10
Unfortunately, these comments were widely reported in the press, thus posing an additional problem as far
as a fair trial is concerned. At no point during rehearing was there an attempt to discuss what measures GEMCO
had taken prior to discharging D'Angelo. Despite the fact that two GEMCO employees, including a trained
security agent, claimed to overhear D'Angelo agree to sell current, unexpired film priced at $3.97 per roll to his
friend for two bucks a pop, GEMCO thoroughly investigated the incident, even to the point of having the two
allegedly percipient employees undergo polygraph examinations. The polygraph examiner stated by deposition
that she concluded that the two employees were being truthful.
Although I am strongly of the opinion that D'Angelo was an at-will employee, the record reflects a substantial
effort by GEMCO to explore all aspects of the incident, in addition to D'Angelo's prior record in adhering to
company policy, before it finally decided to terminate him. I see no evidence that he was treated like a bag of
oats or that the termination procedure was inadequate or unfair even under a for cause standard. It
nevertheless appears from the stance taken by the majority that the legal standard by which GEMCO's conduct
will be measured will not simply be whether there was cause to terminate D'Angelo, but whether it was fair to
terminate this twelve-year employee over a dishonest discount amounting to the petty sum of only twenty
dollars. I fail to see how this court's ruling can introduce anything other than chaos in the area of employment
law in this state. I stress again that we will have paved the way for a substantial negative impact on Nevada's
employees.

11
The majority's characterization of the issue that prompted D'Angelo's discharge as petty is extremely
troubling where GEMCO specified in its handbook that extending unauthorized discount to anyone was most
serious and deemed by the Company to be proper cause for discharge. The majority not only seeks to
superimpose its own views of morality and fairness on GEMCO's right to determine what constitutes serious
employee misconduct, it also presumes to subject GEMCO's termination decisions for violation of its rules to a
jury's scrutiny to validate the accuracy of the company's findings. Thus, as GEMCO proceeds to trial under the
legal
sion by way of this dissent, that a combination of the majority's assignation of pettiness to the
unauthorized discounts and the quoted comments from the bench will be prequel to plaintiff's
summation at trial.
Although I am not without sympathy for the argument that twelve years of presumably
faithful service should be of greater value than a twenty-dollar mistake, the other side of the
coin must also be considered. First, dishonesty is dishonesty. Whether it is twenty dollars,
twenty cents or hundreds or thousands of dollars, the principle is honesty, not twenty bucks.
Surely any court could take judicial notice of the enormous losses sustained by employers,
and ultimately consumers, because of employee theft or defalcation. Moreover, if this court is
to announce its condonation of twenty-dollar defalcations by employees, at what point would
our judicial officers conclude that the matter is sufficiently serious to permit termination by
an aggrieved employer without first having to endure vindication by a jury? A hundred
dollars? Five hundred dollars? Perhaps a thousand dollars? When may an employer fall
within judicial notions of decency for terminating an employee for acts of dishonesty?
Perhaps if the employee is single or unburdened by house payments an employer may have
more latitude in terminating for dishonesty. Despite whatever position one may take
concerning the fairness of GEMCO's treatment of D'Angelo, if this court were to accord
proper respect for the law as it is, the foregoing considerations would have no relevance. In
any event, I would object most strenuously to any argument at trial that would parallel the
characterization of the majority or other members of this court concerning the fairness or
decency surrounding D'Angelo's termination. If, under the type of thread-bare basis for
liability exemplified by this case, an employer's perceptions of proper cause for termination
are to be validated by juries or this court, I shudder to contemplate the measures that will be
taken by employers to insulate themselves from such extraneous and costly intrusions on
employer-employee relationships.
It is apparent to me that the real thrust of the majority's ruling strikes at the validity or
decency of the at-will employment doctrine. The majority opinion virtually paves the way for
a challenge to all forms of termination in Nevada based upon "conditions relating to
dismissal which are . . . inferable from the dealings and practices of the parties."
__________
pronouncements and characterizations of the majority opinion, it must not only prove that its conclusion that
D'Angelo had extended an unauthorized discount to a friend was true, it must also convince the jury that despite
the majority's pronouncements and comments to the contrary, the discharge for violation of its rule was not petty,
indecent or unfair. To suggest that GEMCO'S prospects for a fair trial have been prejudiced by the majority is, it
seems to me, a gross understatement. Equally irrational, I suggest, is the conclusion that legal precedent and the
record in this case justify a trial on the merits.
conditions relating to dismissal which are . . . inferable from the dealings and practices of
the parties. Employers who provide an atmosphere of job security and fair treatment, who
specify reasons for discharging employees or who establish an expectancy of fair disciplinary
treatment, including, but not limited to, pre-termination disciplinary procedures, are
especially vulnerable under the majority's ruling to a legal challenge on every discharge. It
doesn't take a genius to realize that the best way for employers to counteract the effect of the
majority's pronouncements would be to establish an atmosphere of job insecurity and
arbitrary, unstructured employee discipline including terminations without explanation.
Fortunately, most employers would find such policies repugnant and a throwback to times
when our laboring classes were exploited and subjected to all kinds of demoralizing demands
and conditions. It nevertheless seems clear that employers will seek some form of relief from
the majority's invitation to make the right to discharge any employee a subject for resolution
by a judge or jury in a court of law. I suggest that vigorous legislative debate, deliberation and
remedial legislation may be necessary in order to stabilize and render predictable what has
now become a hopelessly confused and unstable area of law and social policy. After today,
the most that can be said concerning the vitality of the at-will doctrine in Nevada is that it
teeters on the slender and unpredictable ad hoc ministrations of this court after employers and
employees suffer the expense and travails of trial.
Although I dissent from the majority's encore upon rehearing, I am of the opinion that the
respondent, Robert C. Jones, had a valid claim against the appellant, Western States Minerals
Corporation (Western States), based upon statute. Because I am convinced that Jones did not
have valid claims for either breach of contract for continued employment or tortious
discharge, I am unable to endorse either the reasoning or the result of the majority opinion.
Since the majority concluded that Jones had no cause of action based upon a bad faith
discharge tort, a determination with which I fully agree, I shall devote no attention to that
issue, although I concur only in the result of the majority's analysis on the subject.
BREACH OF EMPLOYMENT CONTRACT
The majority determined that the evidence of record supplies a legal and factual basis for
concluding that Jones enjoyed a contractual right to continued employment with Western
States. I do not agree.
do not agree. Although it is an elementary principle of contract law that competent
contracting parties generally may agree to any terms or conditions that are lawful, I do not
find in the record evidence of any contract of employment other than one terminable at will
by either party.
In the first opinion issued by the majority and thereafter recalled after a rehearing was
granted, the majority provided little detail concerning the Western States handbook and why
it provided a basis for rebutting the presumption of at-will employment. The second time
around, the majority supplies a footnoted analysis of the handbook in conjunction with its
conclusion that [t]here can be little doubt that, in promulgating the handbook, Western
States intended to make its employees terminable only for cause. I find both the conclusion
and the analysis unpersuasive. First, the majority resorts to the at-will language of a
discontinued employment application, which confers no rights and constitutes no offer or
promise of employment, as a basis for concluding, because of the omission to include such
language in a subsequent employment application, that at-will employment was abandoned by
Western States. The conclusion is supposedly buttressed by what the majority describes as
supplanting language stating that any misleading or incorrect statements may render this
application void, and if employed, would be cause for termination. (Majority's emphasis.)
The simplistic syllogism thus presented by the majority is that since the earlier at-will
language in the employment application was removed and replaced with language containing
the word cause, Western States undoubtedly intended to make its employees terminable
only for cause.
12
The reasoning is flawed.
The employment application was neither an offer nor an acceptance of employment. It was
merely an informational document designed for use by Western States in determining
whether to hire the subject of the application. There is no evidence that any conversation
occurred between Jones and Western States concerning the change in language, let alone any
intention on the part of Western States to extend Jones an offer of employment terminable
only for cause. Moreover, it should be remembered that the at-will presumption refers to
employment that may be terminated for any cause or no cause. Therefore, to conclude that the
presumption is rebutted by reference to the word cause in connection with any disfavored
conduct is hardly evidence of an intent to change a company's employment policy. The
majority nevertheless concludes that the reason for the change in the language is that
Western States had, during the intervening period between the two application forms,
promulgated an employee handbook containing "detailed procedures that were required
to be followed before an employee could be terminated."
__________

12
It apparently has never occurred to the majority that if Western States had intended to change its
employment policy from that of at will to employment terminable only for cause, it would have simply and
unambiguously said so in its handbook.
nevertheless concludes that the reason for the change in the language is that Western States
had, during the intervening period between the two application forms, promulgated an
employee handbook containing detailed procedures that were required to be followed before
an employee could be terminated. (Emphasis mine.) With an equal degree of
disingenuousness, the majority then states, that [b]y instituting these procedures, Western
States created, as stated in the handbook, the kind of security everyone wants.' The latter
reference constitutes an inexcusable perversion of the quoted language of the handbook. The
reference phrase, in full context, appears in the handbook as follows: The company benefit
packageencompassing health, life and disability insurance, a pension plan, vacation and
holiday timehas been put together over a number of years. It provides the kind of security
everyone wants, but which many families often can't afford on their own. (Emphasis added.)
It is thus seen that the referenced phrase has nothing to do with any discipline procedures. As
I will endeavor to show in the detailed discussion of the handbook that follows, the majority
is equally misleading when it declares that the handbook provides detailed procedures that
must be followed prior to any termination.
It is illuminating to focus on the handbook in the course of analyzing the majority's
attempt to paint the instant case with the same brush used by this court in our recent case of
American Bank Stationery v. Farmer, 106 Nev. 698, 799 P.2d 1100 (1990). In Farmer this
court first reaffirmed that all employees in Nevada are presumed to be at-will employees
and that [a]n 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. Id. at 701, 799 P.2d at 1101-02. The Farmer
opinion then noted that there was an evidentiary basis for concluding that Farmer was given a
specific offer for employment terminable only for cause, buttressed by the unequivocal
declaration in the employee's handbook that an employee could be terminated only for cause.
Finally, in Farmer, the court emphasized 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. Id. at
763, 799 P.2d at 1102.
In the instant case, the majority's determination that a binding contract for continued
employment existed between the parties is based in substantial part upon the simplistic
conclusion that Jones agreed to abide by the terms of the employee handbook upon which he
had a right to rely.13 Suffice it to say here that the Western States handbook contains no
provision similar to the handbook in Farmer that specifies that an employee may be
terminated only for cause.
which he had a right to rely.
13
Suffice it to say here that the Western States handbook
contains no provision similar to the handbook in Farmer that specifies that an employee may
be terminated only for cause. Nor is there evidence here, as there was in Farmer, that Jones
was given any form of specific offer of employment terminable only for cause. The majority
nevertheless concludes that because Jones agreed to abide by the terms of the employee's
handbook, and that there was testimony indicating that Jones had a right to rely on the
handbook provisions, an express contract of continued employment was formed. Even if the
majority's premise had validity, there is no basis in the handbook for determining that Jones
was given a contract for continued employment terminable only for cause.
In Farmer this court again recognized that employment agreements, like any other, are
based upon contractual principles. A fundamental principle of contract law is that contracts
are created by mutual assent. The record here reflects no evidence of bargaining between the
parties. Moreover, the Western States employee's handbook implicates no bargained for
intentions of the parties. Rather, it embodies company policies and guidelines promulgated by
Western States that may or may not be in effect on any given day. As stated in the manual:
The company reserves the right to change, discontinue or modify all policies, benefits,
and procedures currently in effect at the company. The company may effect such
changes without notice but will provide employees with supplemental information at
the earliest possible date, reflecting those changes.
See Roy v. Woonsocket Institution for Sav., 525 A.2d 915 (R.I. 1987) (handbook and manual
subject to unilateral alteration or revocation, so employees have no legitimate expectation that
any specific policy will remain effective).
__________

13
Unfortunately, the majority neglects to mention the fact that in the written acknowledgement by Jones that
he had read the handbook in full and that he understand[s] the policies and rules of conduct contained therein,
he also indicates his understanding that Western States Minerals Corporation will keep me informed of any
subsequent changes in Company policies or rules. (Emphasis supplied.) What Jones understood in connection
with subsequent changes is that the handbook plainly states that [t]he company reserves the right to change,
discontinue or modify all policies, benefits, and procedures currently in effect at the company. The company
may effect such changes without notice but will provide employees with supplemental information at the earliest
possible date, reflecting those changes. (Emphasis added.) Although the majority elects to ignore this unilateral
right in Western States to discontinue or change any or all policies or rules without notice to employees, it is
nevertheless clear that the reservation of right in the company negates the argument that Jones had a right to rely
on any aspect of the handbook.
specific policy will remain effective). Far from representing the intent of the parties, the
handbook simply constitutes a written repository of company policies and benefits that may
vary periodically based upon fluctuating policy decisions by the company. Moreover, even
the disciplinary procedures that the majority alludes to as part of the employment contract are
clearly unintended to bind Western States to an inflexible agenda that interferes with the truly
at-will nature of the employment contract. The majority, in its rigid view of the handbook's
discipline procedures, completely disregards that predicate language that states that
[d]iscipline will normally follow the steps listed below. . . . (Emphasis added.) Thus,
Western States employees are placed on notice by the manual itself, that any policy or benefit
contained therein may be altered or revoked at any time, and that the discipline methodology
appearing in the handbook is one that the company will normally utilize. I again stress that at
no place in the handbook does Western States indicate that termination of employment will
occur only for cause. The most unequivocal statements on the subject assert that an employee
will not be terminated without a careful consideration of all the facts involved, and that to
ensure fairness and consistency, no one can be discharged without the approval of the mine
manager or his authorized representative. The quoted handbook material reflects policy
considerations of a company that, aware of the value of a good employee, has structured a
reasonable general approach to discipline problems. It does not purport to constitute a
contractual agreement that restricts the company's employment options, including its right to
terminate employment relationships without regard for cause.
In a recent case involving essentially the same ingredients as the case before us, the
Missouri Supreme Court rejected the so-called handbook exception to Missouri's at-will
doctrine. The handbook at issue in Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661
(Mo.banc. 1988), contained 42 rules and regulations which, if violated, constituted cause for
discipline or discharge. The court in Johnson held as follows:
The essential elements of a valid contract include offer, acceptance, and bargained for
consideration. . . . None of these elements are present in this case. McDonnell's
unilateral act of publishing its handbook was not a contractual offer to its employees.
The handbook was merely an informational statement of McDonnell's self-imposed
policies, providing a nonexclusive list of acts for which an employee might be subject
to discipline. Several of the rules and regulations in the handbook were couched in
general terms and were open to broad discretion and interpretation. The handbook also
provided that the rules were subject to change at any time.
handbook also provided that the rules were subject to change at any time. Given the
general language of the handbook and the employer's reservation of power to alter the
handbook, a reasonable at will employee could not interpret its distribution as an offer
to modify his at will status . . . . An employer's offer to modify the at will status of his
employees must be stated with greater definiteness and clarity than is found here . . . .
Since McDonnell Douglas made no offer to its employees, no power of acceptance was
created in the plaintiff.
Id. at 662-63, See also Martin v. Capital Cities Media, Inc., 511 A.2d 830 (Pa.Super. 1986)
(employee handbook not evidence of intent to change at-will nature of the employment, and
list of actions suitable for discipline was for illustrative purposes only).
Similarly, handbook language reflecting the Western State's interest in promoting job
satisfaction and security does not transmute the at-will contract into a contract for continued
employment. It is a well-established rule that representations of permanent or steady
employment do not, without more, alter the status of an employment contract that is
otherwise a contract terminable-at-will. As noted in Gonzales v. United Southwest Nat. Bank,
602 P.2d 619 (N.M. 1979):
The rule is uniform that a contract for permanent employment, not supported by any
consideration other than performance of duties and payment of wages, is a contract for
an indefinite period. It is terminable at the will of either party. A discharge without
cause does not constitute a breach of such contract justifying recovery of damages.
Id. at 621, quoting from Garza v. United Child Care, Inc., 536 P.2d 1086, 1087 (N.M.Ct.App.
1975). See also Edwards v. Citibank, N.A., 418 N.Y.S.2d 269 (1979); Page v. Carolina
Coach Co., 667 F.2d 1156 (4th Cir. 1982) (applying Maryland law); Smith v. Board of
Education, 708 F.2d 258 (7th Cir. 1983) (applying Illinois law); Price v. Mercury Supply Co.,
682 S.W.2d 924 (Tenn.App. 1984); Anderberg v. Georgia Electric Membership Corp., 332
S.E.2d 326 (Ga.App. 1985); Albert v. Davenport Osteopathic Hospital, 385 N.W. 2.d 237
(Iowa 1986).
I suggest, therefore, that the handbook language providing that employees will have a
probationary status during the first 60 days, followed by permanent employee status
thereafter, has no effect on the at-will nature of the employment contract with Jones. See
Bryant v. Southern Screw Machine Products Co., 707 S.W.2d 321 (Ark. 1986) (specified
probationary period in handbook, followed by entitlement to company benefits and indication
of certain intolerable conduct did not entitle employee to definite period of employment or
termination only for cause).
period of employment or termination only for cause). Moreover, in Smith v. Cladianos, 104
Nev. 67, 752 P.2d 233 (1988), we affirmed a summary judgment disallowing a wrongful
discharge claim in which the plaintiff had contended that the employee handbook had entitled
her to the right to be heard prior to her termination. The handbook in Cladianos did state, in
pertinent part, that during this [90-day] probationary period [if] your supervisor feels that
you will not be able to meet the qualifications and standards necessary for the job you have to
perform, he may terminate your services without prior notice. Clearly, the quoted language
of the handbook in Cladianos implies that after the probationary period, terminations will not
occur without prior notice. We nevertheless had no difficulty determining that Smith was an
at-will employee who could be terminated at any time with or without cause. Our respected
brother Springer, author of the majority opinion in the instant case, also authored the opinion
in Cladianos.
Admittedly, it is easier to find case authority today that would tend to support the
majority's view than in times less recent. See, e.g., Lewis v. Equitable Life Assur. Soc., 389
N.W.2d 876 (Minn. 1986); Woolley v. Hoffman-LaRoche, Inc., 491 A.2d 1257 (1985);
Leikvold v. Valley View Community Hospital, 688 P.2d 170 (Ariz. 1984); Allegri v.
Providence-St. Margaret Health Center, 684 P.2d 1031 (Kan. 1984). I will not extend this
dissent by seeking to distinguish the foregoing cases and others not cited herein, but I do note
that in a number of instances, the factual basis for finding an employment contract terminable
only for cause is far stronger than in the instant case. Furthermore, I suggest that only in the
clearest of cases, where it is apparent that the employer and employee bargained for a set
period of employment or a right to hold employment subject to termination only for cause, or
the employer has unilaterally made clear its position to be bound by such an intention, should
the courts be willing to recognize an action for wrongful termination based on whole or in
part upon employee handbooks.
It should be apparent that as the courts increasingly resort to employee handbooks as a
basis for finding implied agreements to restrict employers' termination rights under
employment contracts otherwise terminable at the will of the parties, employer-employee
relationships will change. Even the most benevolent of employers will not be willing to
subject themselves to costly litigation and liability exposure stemming from employee
handbooks and policy manuals. At the very least, employers will increasingly seek to reduce
such exposure by loading their handbooks and manuals with language of disclaimer and
non-commitment. I do not subscribe to the view that it is better to force employers to
sterilize their handbooks with language making it unmistakably clear that the nature of
the employment relationship is strictly at will, and that discipline measures apply solely at
the discretion of the employer.
force employers to sterilize their handbooks with language making it unmistakably clear that
the nature of the employment relationship is strictly at will, and that discipline measures
apply solely at the discretion of the employer. I am of the opinion that most employers,
certainly the enlightened ones, realize the clear correlation between employee morale and
employee productivity. They generally provide handbooks and manuals to inform employees
of company policies concerning their employees. I find it difficult to believe that any
substantial number of employers would deliberately promulgate their policies to employees
with the intention of building a reputation for noncompliance. On balance, I therefore believe
that both the work force and employers benefit from the explanatory information
disseminated through employee handbooks and manuals. I fear, however, that if the courts
persist in transforming employee policy handbooks into contracts for continued
employment, their use will either be discontinued or so severely circumscribed as to impair
their value to employee and employer alike.
Although my research has not been exhaustive, it appears that many of the courts in this
country would still refuse to interfere with at-will employment contracts on such gossamer
grounds as those in the instant case. My position regarding the law in this area has not
changed since my dissent in Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261
(1983). Today's opinion perpetuates the Ahmad rational with predictable results. Any
corporate counsel or retained counsel who fails to protect corporate and other clients from the
type of exposure presented by the majority view, may indeed end up as the party ultimately
liable for the payment of damages.
14
A law and economics analysis of the majority position
leaves us with the realistic prospect that employees will ultimately suffer the burdens of
today's ruling despite the overtones ostensibly favorable to our working citizens.
__________

14
I note, however, that some courts have positioned themselves to such an extreme that their continued
recognition of employment contracts terminable at will appears to be little more than lip service. As an
illustration, the majority opinion contains a footnote reference to the case of Foley v. Interactive Data Corp., 765
P.2d 373 (Cal. 1988), as standing for the proposition that where no explicit agreement of continued
employment is entered into, such an agreement can be implied when the employer creates an atmosphere of job
security and fair treatment. Counsel may therefore have a difficult task in attempting to protect employer clients
from such courts irrespective of their efforts to avoid liability exposure through elimination or careful structuring
of employee handbooks and personnel manuals. It would appear from the majority's interpretation of Foley that
certain courts are inclined to eliminate the at-will doctrine altogether. If employers lose the right to terminate at
will simply because they create an atmosphere of job security and fair treatment, their options are becoming
few indeed. It would appear from such a premise that employers would be faced with the absurdity of
eliminating or carefully circumscribing handbooks, and adopting a policy of constant oral and written reminder
to employees that their job security is tenuous and that they should not expect to receive fair treatment from their
the majority position leaves us with the realistic prospect that employees will ultimately
suffer the burdens of today's ruling despite the overtones ostensibly favorable to our working
citizens. Employers with middle level management authorized to employ and terminate, will
become increasingly unwilling to subject themselves to wrongful discharge actions stemming
from alleged violations of contractual rights assertedly traceable to employee handbooks.
Under the majority's reasoning, because Jones agreed to abide by the policies contained in the
handbook, and because a former management level employee testified (improperly, I suggest)
that employees of Western States had a right to rely on the manual, the controversy ends. A
contract for continued employment is a fait accompli. Under this type of reasoning, almost
all terminations may be viewed as raising issues of fact suitable for determination at trial. I
visualize the inevitable reaction by employers to avoid such vexation and potential liability as
an eventual setback for employees.
Jones had no vested right in any of the handbook provisions, and it seems disingenuous to
conclude that because he was asked to abide by its terms a contract for continued employment
was formed. An employee needs to be informed of his duties and employer policies in one
form or another, and the fact that an employer elects to do so through means of a handbook
should not, without more, be viewed as a modification of the at-will nature of the
employment. Moreover, the former mine manager's testimony that an employee is entitled to
rely on the expressions of the handbook is not sufficient to transmute the handbook into a
contract for continued employment. Indeed, the reservation of right in the employer to
discontinue or modify any of the provisions of the handbook without notice is cogent
evidence of the fact that employees could not rely on any of the terms of the manual. At no
place in the manual does the employee receive assurances of continued employment and, as
previously noted, there is no provision indicating that an employee may be terminated only
for cause. I therefore dissent from the majority view that the handbook constituted a contract
upon which Jones could rely for continued employment.
Finally, I note that: In general, an employment contract, indefinite as to duration, is
terminable-at-will by either the employer or employee. . . .
__________
employer. Unfortunately, in many instances, workers would accept employment under such extreme conditions
as a matter of necessity.
I do not doubt that courts embracing the Foley type of logic do so for humanitarian reasons and in deference
to what they perceive as fundamental fairness. I suggest, however, that if the long established doctrine of
employment at will is to be eliminated, its executioner should be legislative bodies rather than courts pretending
to acknowledge the doctrine even as they extend themselves to assure its demise. The at-will doctrine should not
be abrogated or emasculated by common law courts that are ill-equipped to consider all of the consequences to
both labor and management that will result therefrom.
In general, an employment contract, indefinite as to duration, is terminable-at-will by
either the employer or employee. . . . But such a contract for permanent or steady
employment (as opposed to either temporary or lifetime employment) is terminable
by the employer only for just cause if: (1) there is an implied agreement to that effect,
or (2) the employee gives consideration in addition to the contemplated services.
Roberts v. Atlantic Richfield Co., 568 P.2d 764, 768-69 (Wash. 1977). The general rule
expressed in Roberts places employment contracts in the category of: (1) terminable-at-will;
(2) terminable-at-will unless limited by implied agreement to termination for just cause; (3)
terminable-at-will unless consideration in addition to the contemplated service is provided by
the employee; and (4) contracts for a specified period of time or a lifetime.
I have been unable to find any evidence upon which to conclude that Jones was employed
for his lifetime or a specified period of time. Nor do I see any evidence that Jones supplied
any consideration for his employment with Western States other than the service he was hired
to perform. Jones was therefore subject to termination at will unless there was an implied
agreement between the parties that would restrict the employer's right of termination to
circumstances constituting just cause. Because the record does not reflect such an agreement,
I am unable to accept the majority's conclusion to the contrary.
TORTIOUS DISCHARGE
Unfortunately, the majority appears to have greatly muddied the waters in this important
area of the law by failing to follow the dispositive reasoning of our decision in Sands Regent
v. Valgardson, 105 Nev. 436, 777 P.2d 989 (1989). Even though the ink on Valgardson is not
yet dry, the majority ascribes hastiness or carelessness to that opinion in noting that we use
some possibly misleading language when we said that we did not perceive that our public
policy against age discrimination is sufficiently strong and compelling to warrant another
exception to the at-will employment doctrine.'
15
Such a characterization is strictly
teleological, a subtle substitute for an outright overruling of the court's position in
Valgardson.
__________

15
Interestingly, the majority opinion, upon reflection concludes that it is obvious that actions for tortious
discharge are not in any sense an exception to the at-will doctrine,' but, rather, an independent tort action that
really has nothing to do with whether there is an at-will or contractual relationship between employer and
employee. I suggest that the majority is wrong. Public policy considerations do create the basis for exceptions
to the at-will doctrine that would otherwise leave employers unfettered in their right to discharge at-will
employees. Thus, in Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984), this court recognized that [m]any
other states . . .
logical, a subtle substitute for an outright overruling of the court's position in Valgardson.
The Valgardson language the majority now seeks to attenuate was the product of
deliberation based upon legislative assessment of the subject. Without question, the
legislature established a public policy against age discrimination in employment and
determined statutorily the extent of that policy by prescribing the damages available for its
violation.
16
This case is no different.
In Valgardson we determined that inasmuch as a statutory remedy was provided for
persons aggrieved by employment discrimination based upon age, no civil action for tortious
discharge was available to the plaintiffs. The identical determination should be made here.
Under the Nevada Occupational Safety and Health Act (NOSHA), Western States was
obligated not to [r]equire, permit or suffer any employee to go or be in any employment or
place of employment which is not safe and healthful. NRS 618.385(1).
17
The employer is
also under a duty not to [f]ail or neglect to do every other thing reasonably necessary to
protect the life, safety, and health of such employees."
__________
have also adopted or recognized a public policy exception to the at-will rule making retaliatory discharge for
filing a workmen's compensation claim actionable in tort. Id. at 64, 675 P.2d at 396, citing cases (emphasis
added). If other than at-will employment contracts are entered into in violation of public policy, such contracts
would, at least to the extent of such violation, be unlawful and void. Public policy violations constitute a basis
for interfering with, i.e., excepting an employer's right to whimsically discharge vulnerable at-will employees
because the exercise of such rights in violation of public policy would effectively frustrate societal expectancies
derived from public policy.

16
A cursory reading of Valgardson will dispel any notions that this court failed to speak advisedly in
declaring that age discrimination in employment was not sufficiently strong and compelling to warrant another
exception to the at-will' employment doctrine. Valgardson, 105 Nev. at 440, 777 P.2d at 900. Indeed, in
connection with our ruling on the subject, we cited several cases, including Fischer v. Sears, Roebuck & Co.,
687 P.2d 587 (Ida.App. 1984), summarizing the holding of the latter case as [t]he duty not to discharge an
employee because of age is solely a creature of statute; no such duty existed at common-law which would allow
prosecution of a claim for wrongful discharge from employment because of age.' Valgardson, 105 Nev. at 440
n.4, 777 P.2d at 900, n.4. Furthermore, in Valgardson we observed, as we should in the instant case, that the
Legislature has addressed the gravity of violating Nevada's public policy against age discrimination by defining
the extent of the remedy available to parties injured by such discrimination. Id. at 440, 77 P.2d at 900. Finally,
we also declared that public policy tortious discharge actions are severely limited to those rare and exceptional
cases where the employer's conduct violates strong and compelling public policy. Id. it is thus seen that much of
the thrust of the Valgardson decision was based on the very determination that the majority now seeks to
disavow as misleading.

17
Western States has forcefully argued that the claims filed by Jones in state court were preempted by the
Federal Coal Mine Health and Safety Act of 1969 (30 USC 801, et seq.). I do not agree. Jones' problem did
not involve hazardous or unsafe working conditions at the job site. Rather, it
neglect to do every other thing reasonably necessary to protect the life, safety, and health of
such employees. NRS 618.385(3). Clearly, the two quoted provisions of NOSHA apply here.
Western States sought to have Jones enter an employment area that was unhealthy for him
because of his recent surgery. The employer also failed or neglected to consider Jones' health
and safety in attempting to induce him to work in an environment that was unsuited to his
state of health.
NOSHA also provides a statutory remedy to an aggrieved employee who is discharged for
refusing to comply with an employer's attempted disregard or violation of the Act. NRS
618.445 specifies the procedure and remedy applicable in cases such as the one now before
us.
18
Under our reasoning in Valgardson, because the legislature has declared both the
public policy and the remedy for its violation, a tortious discharge action should be
unavailable.
__________
involved an employer attempting to force Jones to work under conditions that were unsafe and unhealthy
because of Jones' unhealed surgical wound. The federal government would have had no interest in assuming
jurisdiction under the Mine Safety Act for a situation that was unrelated to unsafe or hazardous working
conditions and that was covered by the state OSHA statutes.

18
As noted in the text of this dissent NRS 618.385 specifies certain duties and prohibitions applicable to
employers. The presence of such duties and prohibitions in the statute obviously creates correlative rights in
employees not to be induced or coerced into working under conditions violative of the statute. In the instant
case, Jones sought to exercise his right not to be forced into an unsafe place of work and was terminated as a
result. Jones' unsuccessful attempt to assert his right provided him a basis for invoking the statutory remedy
available under NRS 618.445. The latter statute reads, in its entirety, as follows:
1. A person shall not discharge or in any manner discriminate against any employee because the
employee has filed any complaint or instituted or caused to be instituted any proceeding under or related
to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by
the employee on behalf of himself or others of any right afforded by this chapter.
2. Any employee aggrieved by a violation of subsection 1 may file a complaint for the relief afforded
under subsection 3, after first notifying his employer and the division of his intention to file the
complaint. Any complaint must be filed with the division within 30 days after the violation has occurred
and must set forth in writing the facts constituting the violation.
3. Upon receipt of the complaint by the division, the administrator shall cause such investigation to
be made as he deems appropriate. If upon investigation, the administrator determines that the provisions
of subsection 1 have been violated, he shall bring an action in any appropriate district court against the
person who has committed the violation.
4. If the court finds that the employee was discharged or discriminated against in violation of
subsection 1, the employee is entitled to reinstatement and reimbursement for lost wages and work
benefits.
5. Any decision reached by the administrator relating to the filing of an action pursuant to this section
must be made available to the complaining employee within 90 days after the division's receipt of the
complaint.
son, because the legislature has declared both the public policy and the remedy for its
violation, a tortious discharge action should be unavailable.
NRS 618.445(1) prohibits an employer from discharging an employee for exercising any
right under Chapter 618. Courts have interpreted the federal and state OSHA statutes to
include a right assertible by employees to refuse unsafe or unhealthful employment.
Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980). See also, Ohlsen v. DST Indus., Inc., 314
N.W.2d 699 (Mich.App. 1981); Marshall v. N.L. Indus., Inc., 618 F.2d 1220 (7th Cir. 1980).
Thus, Jones enjoyed the right not to accede to exposure to unsafe or unhealthy working
conditions. NRS 618.385(1) and (3). He was discharged for exercising that right, in
contravention of NRS 618.445(1). Jones was therefore protected by the Act and entitled to the
remedial provisions of NRS 618.445.
It is precisely because Nevada statutory law provided a remedy for the aggrieved plaintiffs
in Valgardson that we declined to recognize the availability of common law remedies in age
discrimination cases. We specifically held that the Legislature has addressed the gravity of
violating Nevada's public policy against age discrimination by defining the extent of the
remedy available to parties injured by such discrimination. Valgardson, 105 Nev. at 440,
777 P.2d at 900 (emphasis added). I suggest, therefore, that at least when Valgardson was
decided, this court determined that public policy violations occurring in at-will employment
terminations would not provide a basis for tortious discharge damages whenever the
legislature provides a legal remedy for such violations. Our deference in Valgardson to the
exclusivity of the statutory remedy is not without precedent. In Braun v. Kelsey-Hayes Co.,
635 F.Supp. 75 (E.D.Pa 1986), the plaintiff accused the defendant of purposely violating
federal and state safety and health statutes. In rejecting the plaintiff's action for wrongful
discharge in violation of the public policy of Pennsylvania, the court declared that the
statutory remedy is exclusive and preemptive of any state tort action. Id. at 80. Continuing,
the court held that a claim for wrongful discharge under common law may only be
maintained in the absence of a statutory remedy . . . [and that] the only Pennsylvania cases
applying the public policy exceptions [to create a wrongful discharge claim] have done so
where no statutory remedies were available' (quoting from Wolk v. Saks Fifth Ave., Inc.,
728 F.2d 221 (3d Cir. 1984)). Id.
Similarly, in Walsh v. Consolidated Freightways, Inc., 563 P.2d 1205 (Or. 1977), the
Supreme Court of Oregon held that plaintiff could not maintain a wrongful discharge action
because of the remedies provided under OSHA, despite the fact that the plaintiff never
reported or threatened to report the alleged safety hazards to OSHA.
of the remedies provided under OSHA, despite the fact that the plaintiff never reported or
threatened to report the alleged safety hazards to OSHA.
The majority attempts to distinguish Valgardson by stating that the plaintiffs there
received tort damages, a remedy unavailable under NOSHA. I suggest that the majority is
mistaken. In support of the conclusion that the plaintiffs in Valgardson recovered tort
damages, the majority cited at length the case of Rickel v. C.I.R., 900 F.2d 655 (3rd Cir.
1990). The Rickel court explained that its holding was limited only to a determination that for
purposes of the Internal Revenue Code, an ADEA action for age discrimination was a
personal injury and an ADEA action to redress that injury is more like the assertion of a tort
type right. Id. at 663, n.13. Moreover, the Rickel opinion stated that it was not suggesting
that an ADEA action did not possess contract type features, nor did it overrule an earlier
case, Rogers v. Exxon Research & Eng'g Co., 550 F.2d 834 (3rd Cir. 1977), which
concluded, albeit gratuitously that an ADEA action was a routine contract action. Rickel,
900 F.2d at 663, n.13, quoting from Rogers, 550 F.2d at 838-39.
In the case of Thompson v. C.I.R., 866 F.2d 709 (4th Cir. 1989), the court determined that
in a federal action under the Equal Pay Act and Title VII for the difference between wages
received and the wages that should have been paid absent the discrimination, the claim for
back pay was a contractual claim. In particular, the Thompson court held that [t]he back pay
award was simply recovery for earned, but unpaid, wages which distinguishes her award of
back pay from awards for lost wages or lost income in traditional personal injury/tort actions.
She [Thompson] received compensation for services rendered whereas a tort plaintiff
receives compensation for the inability to earn an income due to the tortious action of a
defendant. Id. at 712 (emphasis supplied). In Valgardson the plaintiffs recovered back pay
pursuant to the statutory remedy available under NRS 613.420 and NRS 233.170. In addition,
plaintiffs received an additional equal amount as liquidated damages pursuant to the
provisions of the ADEA upon proof of willfulness. The former damages allowed under the
Nevada statutes are of a contractual nature, and the ADEA recovery was of a punitive, rather
than a tortious nature. As the Rickel court observed, citing Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 125 (1985), the legislative history of the ADEA indicates that
Congress intended for liquidated damages to be punitive in nature.' Rickel, 900 F.2d at 666.
The Rickel court further declared that [s]ince the plaintiff's recovery of liquidated damages is
not based on the extent of the taxpayer's injury but instead the employer's degree of
culpability, the Court's [United States Supreme Court] interpretation of the legislative
history seems to comport with the statute's structure.
Court's [United States Supreme Court] interpretation of the legislative history seems to
comport with the statute's structure. Furthermore, at least one court has characterized
liquidated damages under the ADEA as punitive. Kelly v. American Standard, Inc., 640 F.2d
974, 979 (9th Cir. 1981).
I have burdened this dissent with a discussion of the nature of the damages recovered in
Valgardson only because the majority has sought to distinguish the instant case from
Valgardson solely on the basis that under Valgardson the plaintiffs were able to recover tort
damages whereas Jones has been deprived of a tort remedy under the NOSHA statute. This
court made no reference whatsoever to the nature of the damages available to the plaintiffs in
Valgardson. To the contrary, in Valgardson the entire thrust of the opinion concerning the
availability of damages was directed to the point that because the legislature had defined the
extent (rather than the nature) of the remedy, a common law action for tortious discharge was
not an option.
In summary, then, it must be seen that the instant case is indistinguishable from
Valgardson. In the latter case, tort damages were unavailable and we refused to permit the
maintenance of a cause of action based upon common law. The statutory remedy, reflecting
the extent to which the legislature considered age discrimination in employment violative of
Nevada's public policy, was held to be exclusive. Here, Jones was afforded a statutory remedy
which reflected the legislature's position concerning both public policy and the extent to
which relief is available for its violation. In Valgardson, a unanimous opinion, it appeared
that the law on this subject was settled, and that public policy tortious discharge actions . . .
[were] severely limited to those rare and exceptional cases where the employer's conduct
violates strong and compelling public policy and where statutory remedies were absent.
Valgardson, 105 Nev. at 440, 777 P.2d at 900. By today's ruling, which does not purport to
overrule Valgardson, the majority has disregarded the principle of stare decisis and created
confusion and uncertainty in the law which must leave both employers and employees in a
state of wonderment.
For the reasons set further above, I am of the opinion that Jones was not entitled to prevail
under theories of breach of contract of continued employment and tortious discharge.
THE STATUTORY REMEDY
This court has previously determined that NOSHA does not confer upon an employee a
private right of action. Frith v. Harrah South Shore Corp., 92 Nev. 447, 552 P.2d 337 (1976).
Indeed, the statutory procedure for obtaining redress provides that an aggrieved employee
must file his or her complaint with the division {the Division of Occupational Safety and
Health of the Department of Industrial Relations).
aggrieved employee must file his or her complaint with the division (the Division of
Occupational Safety and Health of the Department of Industrial Relations). NRS 618.445(2).
Thereafter, if an action is deemed warranted, the administrator of the division must file an
action on behalf of the employee. NRS 618.445(3). Finally, if the district court in which the
action is filed determines that the employee was discharged or discriminated against in
violation of the Act, the employee is entitled to reinstatement and reimbursement for lost
wages and benefits. NRS 618.445(4).
Obviously, Jones consciously or unconsciously bypassed the statutory procedure which
clearly applied in the circumstances of his case, and pursued his own action. Under case
authority represented by Ohlsen v. DST Indus., Inc., 314 N.W.2d 699 (Mich.App. 1981), the
remedy supplied by MIOSHA was held to be exclusive. The plaintiff's failure to exhaust that
administrative remedy was fatal to his cause of action. Id. at 702. Under section 5 of NRS
618.445, the administrator is required to give the employee notice of his decision concerning
the filing of an action within 90 days from the date the division received the employee's
complaint. I must conclude from that provision that the legislature did not intend to preclude
the filing of a complaint in district court by the employee in the event the administrator
declined to do so. Nevertheless, I am of the opinion that the legislature intended that
employees first exhaust the administrative procedure set forth in the statute before proceeding
with their own actions. In so doing, the administrator's investigation and activities may either
prompt an early settlement of the dispute at minimum cost to both employee and employer, or
discourage costly litigation by determining that an employee's complaint is lacking in merit.
By virtue of the foregoing, I do not believe that Jones' award of damages may be upheld
under any theory at this point. I suggest, however, that Jones may still be able to resort to the
statutory procedure based upon a theory of equitable tolling. Such a determination would
have to be made by the district court at a hearing scheduled for that purpose. It is certainly
arguable that Jones gave timely notice of his grievance by the complaint he filed in district
court, and that the evidence already gathered through that action will minimize the prejudice
that could have otherwise occurred because of delay resulting in the unavailability of
evidence. Moreover, the public policy interests of the state would be advanced by an
equitable intervention that would enable Jones to obtain his remedial entitlements under the
Act.
For reasons previously expressed, I do not agree with either the result or the legal
reasoning of the majority. I believe that the law of this jurisdiction is disserved by the
majority's disregard of this court's recent precedent in Valgardson, and must therefore
dissent.
law of this jurisdiction is disserved by the majority's disregard of this court's recent precedent
in Valgardson, and must therefore dissent. I would reverse the judgment in its entirety and
anticipate that Jones would thereafter seek to pursue the remedy accorded him under
NOSHA.
POSTSCRIPT
The need to prioritize time and resources forces me to address the latest changes in the
majority opinion separately and without again revising my completed dissent. Recognizing
the total lack of precedential value in a dissent, I am also prompted to avoid further delay in
the issuance of these dispositions by taking the time to walk anew over paths painstakingly
travelled and described over too many previous occasions. Moreover, a review of the above
material may cause the reader to understand why I do not believe these dispositions to be
sound or logical extensions of our existing law. Unfortunately, use of this expedient will not
be without cost to context, because certain of my responses will no longer track the latest
majority opinion with its additions, deletions and changes. In addition, the postscript will,
of necessity, be somewhat disjointed, as it is my intention to limit my comments here to
certain aspects of the current majority opinion that I deem worthy of analysis.
The majority states that the D'Angelo case and the case of Southwest Gas Corp. v. Ahmad,
99 Nev. 594, 668 P.2d 261 (1983), are virtually identical.
19
I suggest that an objective
comparison will reveal little similarity between the two beyond the fact that they both belong
to the same genus. In the first place, Ahmad came to this court on appeal from a judgment
after a bench trial. D'Angelo's appeal is from summary judgment. Secondly, the handbook at
issue in Ahmad specified that [a] regular employee may not be terminated without cause.
There is no similar provision in either of the GEMCO handbooks. Moreover, the Southwest
Gas handbook in Ahmad provided a structured discipline procedure which involved notice of
unsatisfactory performance and a period of time within which to correct the deficiencies in
performance. Here, the GEMCO handbook provided for no corrective period after notice of a
failure to perform. Finally, without exhausting the differences between the two cases, Ahmad
involved a termination for deficient job performance.
__________

19
After circulating this latest dissent, the majority deleted its characterization of D'Angelo's case and Ahmad
as being virtually identical. In the interest of time, I elect not to modify my comments addressing the earlier
majority position.
ance. In D'Angelo's case, termination occurred as a result of a determination of employee
dishonesty.
In view of the foregoing, it is indeed difficult to accept the majority's conclusion that an
affirmance of the district court's summary judgment against D'Angelo would require an
overruling of Ahmad. In that regard, it is both enlightening and frustrating to compare the
majority's position in D'Angelo's case with this court's opinion in Smith v. Cladianos, 104
Nev. 67, 752 P.2d 233 (1988). The latter appeal was also from a grant of summary judgment
against the allegedly aggrieved employee who invoked all of D'Angelo's arguments in an
attempt to secure relief. In Cladianos, Justice Springer wrote that [e]ven if we were to
consider the provisions of the employee handbook as part of Smith's employment contract
with the Sands, no provision in the handbook modifies the Sands' common law right to
discharge Smith at its whim. Id. at 68, 752 P.2d at 234.
20
Similarly, no provision can be
identified in the GEMCO handbook that suggests a modification in GEMCO's common law
right to discharge D'Angelo at its whim. The Cladianos court quite properly concluded that
it was not error for the district court to find the absence of any procedure either spelled out
or guaranteed in the handbook which would restrict the Sands' at-will employment
termination rights. Id. at 69, 752 P.2d at 235.
21
The majority disavows the
characterization of the effect of its opinion in this dissent that "any determination by [an
employer] to terminate an employee is contestable before a jury as a final arbiter of
'proper cause.' " The majority also claims that "proper cause" is not an issue in this case.
__________

20
The Honorable J. Charles Thompson, the respected district court judge who entered summary judgment
against D'Angelo below, correctly cited Cladianos in support of his incisive ruling:
Plaintiff claims that he is not an at-will employee and could not be discharged unless he received
progressive counseling or was discharged for cause. The voluminous material submitted to this Court
does not support this contention. The employment manual contains a list of work rules (two of which
defendant says plaintiff violated) and asserts that deviations from these rules are always considered most
serious and are deemed by the Company to be proper cause for discharge. Plaintiff insists that this
provision contractually restricts defendant's ability to discharge him. To the contrary, the plain language
simply makes it clear that the listed offenses are sufficient for termination, not that defendant's common
law right to discharge plaintiff has in any way been changed. D'Angelo was an at-will employee.
(Emphasis added.)

21
The Sands' handbook at issue in Cladianos contained a provision that was more compelling than anything
found in either of the GEMCO handbooks as a basis for an argument for an alteration of the at-will employment
relationship. The Sands' manual specified that at any time during this [90-day] probationary period your
supervisor feels that you will not be able to meet the qualifications and standards necessary for the job you have
to perform, he may terminate your services without prior notice. The single inference derivable from the quoted
provision is that after the probationary period has ended, termination may not occur without providing prior
notice to the employee. No declaration of such unlimited application is contained
The majority disavows the characterization of the effect of its opinion in this dissent that
any determination by [an employer] to terminate an employee is contestable before a jury as
a final arbiter of proper cause.' The majority also claims that proper cause is not an issue
in this case. I most certainly agree that proper cause should not be an issue on this appeal
from summary judgment, but suggest that the majority's view of the nature and effect of its
holding is sadly myopic. If, on this record, D'Angelo is entitled to have a jury determine
whether his at-will employment has been contractually modified, and whether, after the
extent to which GEMCO investigated D'Angelo's conduct prior to discharging him, the
employer had proper cause to terminate, there is little doubt in my mind that any
determination by an employer to terminate an employee is contestable before a jury as a final
arbiter of the nature of the employment relationship and whether the discharge was justified.
Having thus concluded, I stress again that I have grave doubts that this court's unwarranted
interference with employment relationships under the law as it existed prior to today's opinion
will redound favorably to either labor or management.
Although the majority has reacted to this dissent by deleting from its opinion the word
petty as its characterization of the incident that resulted in D'Angelo's discharge, the
majority's determination to minify the incident remains. Distorting the record facts, the
majority describes the basis for D'Angelo's termination as selling some film at a few cents
less than the marked price.
22
(Emphasis mine.) Of course, the majority knows that the
evidence reflects that D'Angelo, if he discounted the current film at all, did so by almost
fifty percent, i.e., from a regular price of $3.97 per roll to an unauthorized price of $2.00
per roll.
__________
within the GEMCO manuals. The provision in the GEMCO handbook that refers to notice indicates that after the
trial period any discharge based on an employee's failure to perform work as required will have been preceded
by a written notice identifying the deficiencies. Of course, I do not contend that Cladianos was wrongly decided;
I merely note that if an employment handbook is to be construed as a contract that alters the at-will status of
employees merely because it contains a clause specifying notice prior to termination, the unrestricted notice
specification irrefutably inferred in the Sands' manual provided a stronger basis for that result than the manual in
the instant case.

22
Again, the majority changed its opinion after receiving my latest dissent to delete its earlier statement that
D'Angelo was accused of selling some film at a few cents less than the marked price. The majority has then, in
two successive revisions of its opinions, deleted its first characterization of the incident prompting D'Angelo's
termination as petty, and now its minified description of the magnitude of the discount. For reasons repeated
elsewhere, I will not again delay the issuance of these opinions by undertaking another revision of my dissent. I
suggest, however, that despite turning off the tune the melody lingers on. The majority's previously written
expression of its attitude concerning the petty nature of D'Angelo's actions explains, as do the remarks from
the bench, much of the rationale for the decision where adherence to legal precedent could not.
the current film at all, did so by almost fifty percent, i.e., from a regular price of $3.97 per roll
to an unauthorized price of $2.00 per roll. I suggest that the majority's characterization of the
discount as a few cents accurately reflects an attitude that impacts directly on the
nonissue of proper cause. The majority's perception of the incident is further reflected by
the widely publicized comments from the bench that places the entire perspective of
GEMCO's entitlements within the framework of a principle involving a twelve-year employee
who was axed for twenty bucks.
It must thus be seen that proper cause has been made a critical issue by the majority
despite its protestations to the contrary. Even if one were to accept, arguendo, the majority's
determination that the complex of facts and circumstances all tend to lead to the conclusion
that the employment relationship was defined by the handbook and that both parties
considered themselves bound by the handbook with reference to termination rights and
processes,
23
the majority may have irreparably tainted the critical sequential issue of proper
cause. Obviously, if the jury determines that GEMCO could terminate D'Angelo's
employment only for cause, then the dispositive issue becomes whether GEMCO in fact had
proper cause for the termination. The majority has already cast GEMCO's termination of
D'Angelo in a pejorative light by publicly characterizing the incident in such terms as only a
few cents, so we're here over twenty bucks, being axed for twenty bucks after service
equaling three times the terms of the President of the United States, is this the decent thing
to do, is this what at-will employment means, that you can do this to employees, and are
they [employees] a bag of oats? None of these characterizations has anything to do with the
issue concerning the nature of the employment relationship between D'Angelo and GEMCO.
To the contrary, all relate to the question of proper cause whether, assuming a contract
for "continuing employment," GEMCO'S termination of D'Angelo conformed to a proper
cause standard.
__________

23
I again emphasize that the majority has identified no termination rights and processes in either of the
GEMCO handbooks simply because they do not exist. The fact that GEMCO indicated that in instances of
deficient performance a termination will be (not must be as indicated by the majority) preceded by written
notice, does not translate into any form of actionable right in an employee. There were no provisions for a
curative period after notice and no procedures or processes whatsoever concerning employee terminations.
GEMCO's policy expression indicating that employees terminated for failure to perform work as required will be
given written notice prior to termination, was substantially followed in this case as D'Angelo clearly understood
that his conduct involving the sale of the film to his friend was being carefully scrutinized prior to his discharge,
and that providing the unauthorized discount to his friend in direct violation of a company rule prohibiting such
a discount was the primary cause of his termination. Moreover, the policy representation concerning written
notice prior to termination had no application here, as D'Angelo was being discharged for a deliberate act of
dishonesty rather than a failure to perform work as required.
contrary, all relate to the question of proper causewhether, assuming a contract for
continuing employment, GEMCO'S termination of D'Angelo conformed to a proper cause
standard. GEMCO, who even had the percipient employee-witnesses to D'Angelo's
transaction with his friend tested by polygraph before discharging D'Angelo, has now been
placed in the difficult position of proving good cause in the face of the above publicly stated
value judgments by members of this court. I submit, therefore, that it is utterly unrealistic to
conclude, as the majority does, that proper cause is not an issue in this appeal. The majority
has made it an issue, if not a foregone conclusion.
The latest majority opinion makes ongoing references to the Honorable Joseph O.
McDaniel and his determinations. Although I have not found record evidence of a new trial
motion having been filed or an appeal from the denial of such a motion that would lend
credence to the majority's attribution to Judge McDaniel of upholding the jury's finding of
contractual liability in the case, I nevertheless have little doubt that the respected judge
would have left the jury's verdict intact in the face of such a motion. I have great respect for
Judge McDaniel and his basic humanity and sense of fairness. It is therefore understandable
why the majority would seek to enhance the credibility of its ruling by specifically referring to
the good judge. Moreover, as I have previously stated, it is clear to me on this record that
Jones was improperly discharged and deserving of redress. However, appellate courts have an
obligation to see that the law has been properly followed and that prejudicial error occurring
at trial is properly recognized and remedied. I dissent from the majority's ruling not because
of a disagreement with Jones' entitlement to relief; my disagreement stems from both the
nature of the relief granted and the legal precedent established by the majority opinion.
The majority indicates that under the terms of the amended handbook the discharge
procedures could be bypassed only if the employee commits an offense so serious that
immediate discharge without prior warning is appropriate. What the handbook actually
states, in appropriate and accurate context is:
Discipline will normally follow the steps listed below, although deliberate or serious
violations of established rules may necessitate more strict disciplinary action, such as
immediate termination.
. . . .
As indicated above, one or more of the steps in the disciplinary process may be
bypassed if, after a thorough review of the facts, it is clear that the violation is so
serious that it demands equivalent discipline.
review of the facts, it is clear that the violation is so serious that it demands equivalent
discipline.
(Emphasis added.) It is thus fairly seen that the only if characterization by the majority is
hardly warranted by the actual handbook language.
The majority also states, without attributing support to the record, that the handbook was
changed to include detailed procedures relating to employee discipline and dismissal. The
inference the majority provides is that the handbook was modified in order to conform to the
intendment of the employee application form that at-will employment be eliminated. I have
been unable to find evidential support in the record that would confirm the inference tendered
by the majority. Moreover, even if the handbook was amended to provide detailed
disciplinary procedures, it is clear that such procedures were unilateral and not the subject of
bargaining between the parties. It is also clear, as previously mentioned, that no Western
States employee had any vested interest in the specified discipline procedure, as the manual
expressly reserved the right to change, discontinue or modify all policies, benefits, and
procedures currently in effect at the company without notice.
Finally, the majority now takes the position that the statutory remedy provided under NRS
618.445 is permissive and not mandatory, thus concluding that other remedies may be
pursued. I suggest that the observation is without substance. Of course the remedy is
permissive. No one in Jones' position is required to file a complaint, just as employees
entitled to file workmen's compensation claims are not compelled by law to do so. However,
as previously noted, if an employee elects to complain, NRS 618.445(2) specifies that [a]ny
complaint must be filed with the division. . . . (Emphasis added.) The majority is equally
unpersuasive in stating that since the legislature did not label the NOSHA remedy as
exclusive (as it did in workmen's compensation cases), other remedies are not foreclosed. In
Sands Regent v. Valgardson, 105 Nev. 436, 777 P.2d 898 (1989), we declared that the
Legislature has addressed the gravity of violating Nevada's public policy against age
discrimination by defining the extent of the remedy available to parties injured by such
discrimination. Id. at 440, 777 P.2d at 900. In Valgardson, as here, the statutes at issue did
not declare the statutory remedy to be exclusive.
SECOND POSTSCRIPT
Forty days have elapsed between the time my previous final dissent was circulated
among the members of the court and the time of the circulation of the concurring opinion by
Mowbray, C. J. Although the temptation to respond in detail to my colleague's concurring
remarks was understandably great, I have no wish to further delay the issuance of these
long-awaited opinions.
wish to further delay the issuance of these long-awaited opinions. I will therefore be brief and
restrained.
I am saddened to be perceived by my colleague as having insidious
24
motives concerning
our men and women who earn their living by the sweat of their brows. In truth, my own
family background and personal work history have given me cause to genuinely appreciate
both the concerns and contributions of our working classes in society. I trust that those who
read my dissent with an open mind will find, whether they agree or not with my analysis and
conclusions, that I am hardly motivated by an animus for our working men and women in
general, or Messrs. D'Angelo and Jones in particular. As far as my apocalyptic predictions
and misplaced and fanciful fears are concerned, I hope for the sake of all concerned that my
colleague is accurate in the assessment.
Finally, I, too, reject the notion that justice is an irrelevant consideration by a court of law
in any of its functions. Unfortunately, justice is rarely more than an illusion when dispensed
without regard for the law.
CONCLUSION
I have found no basis in our law or in the records of the consolidated cases for sustaining
the reasoning or the results of the majority's opinion. Accordingly, I dissent.
__________

24
In ascribing to this dissenting justice insidious motives, the concurring justice has relied (at least
ostensibly) upon his or someone's misperception concerning the import of the statutes cited and quoted in my
dissent. Thus, the conclusion which purports to reveal the error of my ways and my antagonism towards our
working classes is that NRS 618.445(2) is irrelevant to the instant Jones case, because the statutory remedy is a
right of reinstatement for workers who have been discharged for filing a complaint, testifying in a proceeding, or
exercising a right afforded by NOSHA. Unfortunately, my colleague overlooks the meaning of the last phrase
exercising a right afforded by NOSHA. Jones properly sought to avoid being forced to work in a place that
would be unsafe and unhealthy during the time when his surgical wound was still in the process of healing. NRS
618.385(1) forbade Western States from requiring, permitting or suffering any employee to go or be in any
employment or place of employment which is not safe and healthful. As I observed in dissent, Western States
violated the latter statute, and wrongfully terminated Jones as a result of his refusal to accede to his employer's
statutorily prohibited demands. Thus, Jones, in strict accordance with the provisions of NRS 618.445(1),
exercised the right afforded by this chapter [NRS 618] not to allow his employer to force him to work under
unhealthy conditions. The remedy accorded Jones by statute is thereafter set forth in NRS 618.445, subsections
(2) through (5). Several courts, and I cited to one in my dissent, have held that the statutory remedy specified by
the OSHA statutes is exclusive. I would hope that their motives were not similarly impugned. Finally, I trust that
others who take the time to objectively read the dissent, will note that neither Justice Young nor I foreclosed an
avenue of relief for Mr. Jones.
____________
107 Nev. 763, 763 (1991) Richardson v. Harris
LOUIS RICHARDSON, dba RICHARDSON CONSTRUCTION COMPANY, and
FAIRMONT INSURANCE COMPANY, a California Corporation, Appellants, v.
LLOYD HARRIS, Respondent.
No. 21454
October 24, 1991 818 P.2d 1209
Appeal from a district court order denying appellant Richardson Construction company's
motion for confirmation of an arbitrator's award and granting respondent Harris' motion to
correct or modify the award. Eighth Judicial District Court, Clark County; John S.
McGroarty, Judge.
Construction company appealed from an order of the district court which denied its motion
for confirmation of arbitration award and granted landowner's motion to correct or modify
award. The supreme court held that: (1) court erred in refusing to confirm award upon
construction company's motion; (2) landowner's motion to correct or modify award was
untimely; and (3) court exceeded its authority in granting landowner's motion to modify.
Cuthbert E. A. Mack, Las Vegas, for Appellants.
Foley & Jones and Daniel T. Foley, Las Vegas, for Respondent.
1. Arbitration.
Court should have confirmed arbitration award upon construction company's motion because landowner's motion for modification
or correction of award was untimely. NRS 38.135-38.155.
2. Arbitration.
Nevada law governed time period in which landowner was required to file motion to modify or correct arbitration decision settling
dispute between landowner and construction company where both landowner and construction company were residents of Nevada,
contract was to be performed in Nevada and it appeared that contract was signed in Nevada. NRS 38.155.
3. Arbitration.
Motion to correct or modify arbitration award had to be filed within 90 days of receipt of notice of award. NRS 38.155.
4. Arbitration.
District court erred in granting motion to modify court's original order confirming arbitration award, even though award simply
provided ruling and did not contain findings of fact or conclusions of law, inasmuch as award reflected no error on its face.
5. Arbitration.
Court exceeded its authority when it reinstated previous order denying confirmation of arbitration award; there was no statutory
provision granting court authority to hold evidentiary hearing or to modify arbitration award prior to ruling
on validity or form of award.
sion granting court authority to hold evidentiary hearing or to modify arbitration award prior to ruling on validity or form of award.
NRS 38.145, 38.155.
6. Arbitration.
Arbitrators are not statutorily required to provide specified findings of fact or conclusions of law.
7. Arbitration.
Absent evidence that arbitration award contained miscalculation of figures, landowner could not obtain modification or correction
of award, the form of which did not indicate any miscalculation. NRS 38.155, subd. 1(a).
OPINION
Per Curiam:
On June 13, 1986, Lloyd Harris (Harris) and Louis Richardson, dba Richardson
Construction Company (Richardson), entered into a contract, whereby Richardson promised
to construct a printing and office facility for Harris, for a price of $354,220.00. The project
was to be substantially completed no later than November 22, 1986, and Richardson was to
forfeit $500.00 for each day the project extended beyond the November 22, 1986 deadline.
On October 28, 1988, Harris filed a complaint against Richardson for breach of contract.
Because a clause in the contract provided that the parties would submit to final, binding
arbitration in the event of a dispute, the case went to an arbitration panel, submitted through
the American Arbitration Association (AAA). After a hearing on the merits, the arbitration
panel issued an award in favor of Richardson for $53,313.00.
On September, 6, 1989, Harris' attorney, Jan Lauver, wrote a letter to the AAA, requesting
that the arbitrators provide findings of fact and conclusions of law clarifying their award. She
received no response. Meanwhile, on December 6, 1989, Richardson filed a motion for
confirmation of the arbitrator's award and conversion of the award into a judgment. On
December 27, 1989, Harris filed an opposition to Richardson's motion and requested that the
district court correct or modify the arbitrator's award. Harris argued that the award failed to
address all of the issues submitted for arbitration and that the award was miscalculated.
On January 2, 1990, Ms. Lauver wrote another letter to the AAA. This time, she requested
that the AAA sign the letter, acknowledging its receipt and confirmation, and stated that
because the AAA did not respond to the request of September 6, 1989, she presumed the
application was denied. On January 9, 1990, the AAA send Ms. Lauver a notice
acknowledging receipt of her letter dated January 2, 1990.
of her letter dated January 2, 1990. However, the notice stated that the AAA would not be
submitting a clarification of the award and that the award would stand as is.
On March 5, 1990, the district court issued an order denying Richardson's motion for
confirmation of the award and conversion of the award into a judgment. However, on March
19, 1990, the court entered a revised order, remanding the matter back to the arbitrators for
clarification and stating that if clarification is denied, the award shall be affirmed and
judgment rendered in favor of Richardson. On May 3, 1990, Harris filed a motion for
rehearing and a motion to modify the court's order. On May 14, 1990, the court granted
Harris' motions and reinstated the order denying confirmation of the award.
On appeal, Richardson argues that the district court erred by: (1) refusing to confirm the
arbitrator's award; (2) ruling that Harris' motion to correct or modify the award was timely
filed; and (3) granting Harris' motion for rehearing and motion to modify the court's order.
We conclude that the district court erred and that the arbitration award should be confirmed.
1. Richardson's motion for confirmation of the award.
[Headnote 1]
NRS 38.135 provides that upon application, the court shall confirm an arbitration award,
unless grounds are urged for vacating, modifying, or correcting the award, in which case the
court shall proceed as provided in NRS 28.145 and NRS 38.155. Richardson's application for
confirmation of the award was opposed by Harris' motion to modify or correct the award,
pursuant to NRS 38.155. Therefore, had Harris' motion been timely, the district court would
have been correct in refusing to confirm the award until it determined the merits of Harris'
motion. However, as discussed below, we conclude that Harris' motion to correct or modify
the award was not timely filed under NRS 38.145. Therefore, the district court erred in
refusing to confirm the arbitration award upon Richardson's motion.
2. Timeliness of Harris' motion to correct or modify the award.
[Headnote 2]
Harris asserts that the court should apply California law, because the arbitrators proceeded
under California law and because California law provides a petitioner with more time to file
with the district court. In the alternative, Harris argues that the Nevada statute of limitations
should have been tolled while he awaited the AAA's response to his request for clarification
of the award.
[Headnote 3]
Harris provides no authority indicating that the arbitrators proceeded under California law.
Moreover, both parties are residents of Las Vegas, Nevada, the contract was to be performed
in Nevada, and it appears that the contract was signed in Nevada. Therefore, we conclude that
Nevada law applies. NRS 38.155 provides that any motion to correct or modify an award
must be filed within ninety days of receipt of notice of the award. Harris received notice of
the arbitration award on September 5, 1989. He filed his motion on December 27, 1989.
Therefore, Harris' motion was untimely.
3. Harris' motion to modify the district court's order.
[Headnote 4]
The arbitration award simply provided a ruling, without making findings of fact and
conclusions of law. However, because the award reflects no error on its face, we conclude
that the district court erred in granting Harris' motion to modify the court's original order
confirming the award.
[Headnote 5]
NRS 38.105 provides that the arbitration award must be in writing and signed by the
arbitrators joining in the award. Although the arbitrators may modify, clarify, or correct the
award pursuant to NRS 38.115, there is no statute requiring them to do so, or requiring them
to provide specified findings of fact or conclusions of law. Rather than moving to vacate the
arbitration award pursuant to NRS 38.145, Harris moved to modify or correct the award. See
NRS 38.155.
[Headnote 6]
The scope of judicial review of an arbitration award is limited to the statutory provisions.
New Shy Clown Casino, Inc. v. Baldwin, 103 Nev. 269, 737 P.2d 524 (1987). There is no
statutory provision granting the district court authority to hold an evidentiary hearing or to
modify the arbitration award where it has not made a ruling as to the validity of the award
(NRS 38.145) or the form of the award (NRS 38.155). Therefore, we conclude that the
district court exceeded its authority.
[Headnote 7]
Harris claims that the award was clearly erroneous because it bears no relationship to the
amounts requested by Richardson or the evidence presented during the arbitration hearing.
NRS 38.155(1)(a) provides that a court shall modify or correct an award which contains
evident miscalculation of figures. However, in order to set aside the arbitrator's award and
have a hearing on the issue, the court must receive evidence that the award was
imperfect.
hearing on the issue, the court must receive evidence that the award was imperfect. See City
of Boulder v. General Sales Drivers, 101 Nev. 117, 694 P.2d 498 (1985). Because the form of
the award does not indicate any miscalculation, Harris did not meet the burden of proof
necessary to justify clarification or modification of the award, and thus the court should have
granted Richardson's motion for confirmation of the award.
We therefore reverse and remand for the entry of an order confirming the arbitrator's
award.
____________
107 Nev. 767, 767 (1991) Milton v. Gesler
RICHARD EDWIN MILTON, Appellant, v. JUDITH LEE GESLER, fka JUDITH LEE
MILTON, Respondent.
No. 21430
October 24, 1991 819 P.2d 245
Appeal from denial of motion to set aside judgment; Eighth Judicial District Court, Clark
County; Thomas A. Foley, Judge.
Divorced husband, who was a resident of Florida, filed a motion to set aside a judgment
against him for child support and spousal support arrearages, and for pension payments,
attorney fees and interest. The district court denied motion, and divorced husband appealed.
The supreme court held that motion to set aside judgment as void for lack of personal
jurisdiction was a special appearance, rather than general appearance, and did not establish
personal jurisdiction over nonresident.
Reversed.
Bell, Davidson & Jones and Stephen Compan and Mark A. Cope, Las Vegas, for
Appellant.
Marshal S. Willick, for Respondent.
1. Appearance.
General appearance is entered when a person or the person's attorney comes into court as a party to a suit and submits to the
jurisdiction of the court.
2. Appearance.
A special appearance is entered when a person comes into court to test the court's jurisdiction or the sufficiency of service.
3. Divorce.
Domestic referee and district court lacked personal jurisdiction in an action to reduce arrearages to judgment against nonresident
where neither nonresident or his attorney made a special or general appearance before the court during negotiations or at hearing before
domestic referee. NRCP 55(b)(2), 60(b)(1, 3).
4. Appearance.
Nonresident's motion to set aside judgment as void for lack of personal jurisdiction was a special appearance to challenge the
district court's jurisdiction to enter a judgment against him, not a general appearance, and did not establish personal jurisdiction.
NRCP 60(b)(3).
OPINION
Per Curiam:
This is an appeal from the denial of a motion to set aside judgment. The issue involved is
whether a Nevada district court ever obtained personal jurisdiction over the appellant,
Richard Milton. Richard Milton and respondent, Judith Gesler, were divorced in California.
The California judgment requires Mr. Milton to pay Ms. Gesler child support and spousal
support. In addition, the judgment requires Mr. Milton to give Ms. Gesler twenty-five and
one-half percent of his United States Air Force pension payments.
According to Ms. Gesler, Mr. Milton refused to pay any of the amounts ordered by the
California court. Ms. Gesler was able to get military pension payments directly from the Air
Force, however. In an attempt to stop these payments, Mr. Milton, while a Florida resident,
filed a complaint in Florida. He was represented by Robert Palmer, a Florida attorney, and
had Ms. Gesler, a Nevada resident, served with the complaint.
Ms. Gesler's attorney discussed the Florida complaint with Mr. Palmer. According to Ms.
Gesler, Mr. Palmer agreed to suspend all Florida proceedings and also agreed to accept
service of a Nevada motion to reduce arrearages to judgment on behalf of Mr. Milton. Ms.
Gesler then filed a request for domestication of the California judgment with the Nevada
district court. After the registration of the California judgment was final, she filed a motion to
reduce arrearages to judgment and procured a judgment awarding her $40,228.18 from Mr.
Milton for child support and spousal support arrearages and for pension payments, attorney's
fees, and interest.
1

The district court judgment allows the arrearages to be obtained from Mr. Milton's military
pension and is based on a domestic referee's recommendation. The referee found that the
district court had personal jurisdiction over Mr. Milton, even though Mr. Milton was a
Florida resident at the time, because Mr. Palmer had ostensibly agreed that the case should
proceed in Nevada.
__________

1
Ms. Gesler also was awarded $800.00 in attorney's fees for bringing the motion to reduce arrearages to
judgment.
Subsequently, Mr. Milton filed a motion to set aside judgment as void pursuant to NRCP
60(b)(3). The district court apparently considered this motion a general appearance on
which personal jurisdiction could be based. The district court then denied Mr. Milton's
motion to set aside judgment.
On appeal, Mr. Milton contends that the district court did not obtain personal jurisdiction
over him.
2
First, he argues that any discussions that took place between counsel did not
create personal jurisdiction. We agree. The issue in this case is whether Mr. Milton made an
appearance through Mr. Palmer; even if Mr. Milton did participate in negotiations through
Mr. Palmer, he did not automatically make an appearance. In fact, neither Mr. Palmer nor Mr.
Milton ever physically appeared in Nevada.
[Headnotes 1-3]
An appearance, for personal jurisdiction purposes, requires more than attorney
negotiations. Nevada recognizes both general and special appearances. A general appearance
is entered when a person (or the person's attorney) comes into court as party to a suit and
submits to the jurisdiction of the court. A special appearance is entered when a person comes
into court to test the court's jurisdiction or the sufficiency of service.
3
Although Mr. Palmer
may have negotiated extensively with Ms. Gesler's attorney, neither Mr. Palmer nor Mr.
Milton made a general or special appearance before the court during the negotiations or at the
hearing before the domestic referee.
4
Therefore, we conclude that the domestic referee was
without jurisdiction to hear the case, and the district court was without jurisdiction to enter a
judgment adopting the referee's recommendations.
__________

2
As a preliminary matter, Ms. Gesler contends that the order denying Mr. Milton's motion to set aside
judgment is not an appealable order under NRAP 3A(b). According to NRAP 3A(b), appeal may be taken from
any special order entered after final judgment; in fact, the only time an appeal cannot be taken from a special
order is if a motion under NRCP 60(b)(1) (setting aside a default judgment) has been granted. Orders entered
pursuant to NRCP 60(b)(3) are special orders and therefore appealable.

3
Black's law dictionary defines a general appearance as a simple and unqualified . . . submission to the
jurisdiction of the court and defines a special appearance as an appearance for the purpose of testing the
sufficiency of service or the jurisdiction of the court. Black's Law Dictionary 89 (5th ed. 1979).

4
Ms. Gesler contends that presentation or submission to the court is not necessary to meet the requirements
of an appearance and that attorney negotiations may constitute an appearance. In support of this contention, she
cites three cases: (1) Gazin v. Hoy, 102 Nev. 621, 730 P.2d 436 (1986); (2) Franklin v. Bartsas Realty, Inc., 95
Nev. 559, 598 P.2d 1147 (1979); and (3) Christy v. Carlisle, 94 Nev. 651, 584 P.2d 687 (1978).
Her reliance on these cases, however, is misplaced. All of these cases
[Headnote 4]
Second, Mr. Milton argues that his motion to set aside judgment was not a general
appearance and did not establish personal jurisdiction. We agree with Mr. Milton on this
point as well. Mr. Milton brought his motion under NRCP 60(b)(3) to vacate the district court
judgment as void for lack of personal jurisdiction.
5
He did not seek any other relief. Mr.
Milton's motion did not constitute a general appearance; instead, his motion constituted a
special appearance to challenge the district court's jurisdiction to enter a judgment against
him.
The relevant case law is consistent with our position that a motion to set aside judgment
brought under NRCP 60(b)(3) constitutes a special appearance and does not confer personal
jurisdiction on the court. We have stated that Rule 60(b)(3) is normally invoked . . . in a case
where the court entering the challenged judgment . . . did not have jurisdiction over the
parties. Misty Management v. District Court, 83 Nev. 180, 182, 426 P.2d 728, 729 (1967)
(citing LaPotin v. LaPotin, 75 Nev. 264, 339 P.2d 123 (1959); Foster v. Lewis, 78 Nev. 330,
372 P.2d 679 (1962)). In LaPotin, an action was brought under NRCP 60(b) to set aside a
divorce decree that was void for lack of jurisdiction. We found that [t]he invalidity of the
divorce decree in such a case [lack of personal jurisdiction] is the proper subject of an
independent action to set it aside. LaPotin, 75 Nev. at 266, 339 P.2d at 124. We did not find
that the district court had gained personal jurisdiction over the out-of-state party through her
motion to set aside judgment.
In Foster, the defendants brought a motion under NRCP 60(b) to set aside the judgment on
the grounds that it was void for lack of personal jurisdiction.
__________
concern an appearance for the purposes of NRCP 55(b)(2). NRCP 55(b)(2) is designed to protect parties from
having a default judgment entered against them; it imposes an affirmative duty on the party seeking a default
judgment to notify a defendant who has appeared about upcoming hearings. Under this rule of civil procedure,
appearance is interpreted liberally and includes attorney negotiations where the defendant has indicated a
clear purpose to defend the suit. Gazin, 102 Nev. at 624, 730 P.2d at 438. Thus, [an] appearance within the
contemplation of Rule 55(b)(2) does not necessarily require some presentation or submission to the court. [The]
Rule is designed to insure fairness to a party . . . who has indicated a clear purpose to defend the suit. Christy,
94 Nev. at 654, 584 P.2d at 689 (citations omitted).
Rule 55(b)(2) has nothing to do with an appearance for personal jurisdiction purposes. In fact, the Nevada
Rules of Civil Procedure specifically state that they shall not be construed to extend or limit the jurisdiction of
the district courts. NRCP 82.

5
NRCP 60(b)(3) states that [o]n motion . . . the court may relieve a party . . . from a final judgment, order, or
proceeding . . . [if] the judgment is void.
of personal jurisdiction. We held that since the trial court had never obtained jurisdiction over
the defendants, the judgment was void. Foster, 78 Nev. at 336-37, 372 P.2d at 682. Again, we
did not find that personal jurisdiction was gained through the motion to set aside judgment.
6

In Doyle v. Jorgensen, 82 Nev. 196, 414 P.2d 707 (1966), we held that a defendant who
seeks relief under NRCP 60(b)(1)
7
and who does not confine the pleadings to jurisdictional
matters of void judgment or defective service makes a general appearance. In Doyle,
however, we recognized the difference in NRCP 60(b)(1) and NRCP 60(b)(3); we stated that
[the defendant] could have moved to set aside the judgment pursuant to NRCP 60(b)(3)
[instead of NRCP 60(b)(1)]. Id. at 201, 414 P.2d at 710. We therefore inferred that a motion
challenging personal jurisdiction under NRCP 60(b)(3) would not constitute a general
appearance.
As Mr. Milton moved to set aside judgment for lack of jurisdiction under NRCP 60(b)(3)
and sought no other relief, he did not make a general appearance. Therefore, the district court
did not gain personal jurisdiction over him through his motion. We conclude that the district
court had no jurisdiction to enter a judgment against Mr. Milton. Consequently, the district
court order denying Mr. Milton's motion to set aside judgment is reversed; and the judgment
against him is invalidated.
__________

6
We have held, in several cases, that when a defendant requests a remedy in addition to relief from
jurisdictional defects or defective service of process, the defendant enters a general appearance and submits to
the jurisdiction of the court. See, e.g., Silver v. Telerent Leasing, 105 Nev. 30, 768 P.2d 879 (1989) (party has
made a general appearance if his or her attorney moves to dismiss the case); Deros v. Stern, 87 Nev. 148, 151,
483 P.2d 648, 650 (1971) (movant who requests relief in addition to that necessary to contest a lack of personal
jurisdiction makes a general appearance); Doyle v. Jorgensen, 82 Nev. 196, 201, 414 P.2d 707, 710 (1966)
(defendant who does not confine pleadings to jurisdictional matters of void judgment or defective service and
seeks relief under NRCP 60(b)(1) makes a general appearance); Selznick v. District Court, 76 Nev. 386, 388,
355 P.2d 854, 855 (1960) (defendant who requests that the case be dismissed or that service be quashed has
entered a general appearance).
These cases do not apply to Mr. Milton because he did not seek the additional relief contemplated by them.
Mr. Milton simply used NRCP 60(b)(3) to challenge the district court's judgment as void for lack of personal
jurisdiction.

7
NRCP 60(b)(1) states that [o]n motion and upon such terms as are just, the court may relieve a party . . .
from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect.
____________
107 Nev. 772, 772 (1991) State, Gaming Comm'n v. Rosenthal
STATE OF NEVADA and STATE OF NEVADA GAMING COMMISSION, Appellants, v.
FRANK ROSENTHAL, Respondent.
No. 21216
October 30, 1991 819 P.2d 1296
Appeal from an order of the district court granting respondent's petition for judicial review
and expunging respondent from appellants' List of Excluded Persons. Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
The supreme court, Young, J., held that: (1) commission did not act arbitrarily or
capriciously in placing person on list; (2) persons's prior conviction could be relied on even
though it was entered upon plea of nolo contendere and even though person's civil rights were
subsequently restored; (3) statutes and regulations governing list were not unconstitutionally
vague; and (4) person did not have viable claims based on laches or equitable estoppel.
Reversed.
Frankie Sue Del Papa, Attorney General, James J. Rankl, Deputy, Carson City, for
Appellants.
Goodman, Stein & Chesnoff, Las Vegas, for Respondent.
1. Gaming.
Gaming commission's decision to include person on list of excluded persons was not arbitrary and capricious inasmuch as it was
based on person's prior conviction for attempting to bribe college basketball players, person's admitted association with organized
crime figures, and fact that person was banned from race tracks in another state. NRS 463.151, subds. 3, 3(a), (c), (d).
2. Administrative Law and Procedure; Gaming.
District court employed proper standard of review in evaluating gaming commission's placement of person on list of excluded
persons even though court at one point made reference to standard that was more exacting than proper standard; review of record
indicated that court's decision to reverse commission was premised upon proper standard that decision was arbitrary and capricious
and unsupported by substantial evidence. NRS 463.317, subd. 3.
3. Licenses.
Where statutes authorize disciplinary action or license denial or revocation upon conviction of crime, conviction generally may be
considered even when based upon plea of nolo contendere.
4. Gaming.
Person's prior conviction for basketball fixing could be considered by gaming commission as basis for placing person on list of
excluded person even though conviction was entered upon plea of nolo contendere. NRS 463.151, subd. 3(a).
5. Licenses.
Proceedings to suspend or revoke business or professional licenses are not included among penalties and disabilities
that are released by honorable discharge from probation.
are not included among penalties and disabilities that are released by honorable discharge from probation.
6. Gaming.
Fact that person's civil rights were restored by court that had accepted his plea of nolo contendere to charge of basketball fixing did
not foreclose gaming commission's consideration of that conviction as basis for placing person on list of excluded persons. NRS
463.151, subd. 3(a).
7. Gaming.
Statutes and regulations governing gaming commission's list of excluded persons were not unconstitutionally vague as applied to
person who was placed on list due to his prior conviction for basketball fixing, his admitted involvement with organized crime figures,
and fact that he was banned from race tracks in another state. NRS 463.151, subds. 3, 3(a), (c), (d); U.S.C.A.Const. amends. 5, 14.
8. Statutes.
Statute that does not impinge on first amendment freedoms under overbreadth doctrine may be stricken as unconstitutionally
vague only if it is found to be so in all its applications. U.S.C.A.Const. amends. 1, 5, 14.
9. Statutes.
Standard of review is less strict under challenge for vagueness where review is directed at economic regulations. U.S.C.A.Const.
amends. 5, 14.
10. Equity.
Laches involves party delaying enforcement of his rights to disadvantage of another.
11. Equity; Gaming.
For purposes of laches claim, person who was ultimately placed on gaming commission's list of excluded persons failed to
establish that he was prejudiced by nine-year delay between time he was first nominated for inclusion on list and time nomination was
approved; person only made reference to indignity and scorn he faced and fact that gaming commission was able to introduce
witnesses who testified about facts that possibly would not have been available to commission absent delay.
12. Estoppel.
For purposes of equitable estoppel argument, person failed to establish how he detrimentally relied on nine-year delay between his
nomination to gaming commission's list of excluded persons approval of and his nomination; person had no reasonable expectation
that exclusion proceedings would not be instituted against him.
OPINION
This is an appeal from an order of the district court granting respondent's petition for
judicial review and expunging respondent from appellants' List of Excluded Persons, the
so-called Black Book. For the reasons set forth below, we reverse the district court.
THE FACTS
Respondent Frank Lefty Rosenthal (Rosenthal) is a former executive at the Stardust
Hotel-Casino in Las Vegas and is also a former host of a television sports betting
information program which aired live from the Stardust in the early 19S0s.
former executive at the Stardust Hotel-Casino in Las Vegas and is also a former host of a
television sports betting information program which aired live from the Stardust in the early
1980s. Rosenthal is well known to the authorities in several states. By his own admission,
Rosenthal has associated with organized crime figures for many years, including the late
Anthony Spilotro who was placed on the List of Excluded Persons in 1978. Rosenthal has a
record of gambling-related arrests dating back over thirty years. Despite his frequent arrests,
Rosenthal was only convicted once, in 1963, for attempting to fix the outcome of a college
basketball game in North Carolina. He has also been banned from race tracks in Florida.
Rosenthal is also well known to this court; this is his third trip here. His first two appeals
concerned denial of his application for licensing by the State Gaming Commission
(Commission) as a key figure employee at the Stardust. Both denials were appealed to
this court, which affirmed the Commission's license denial. State v. Rosenthal, 93 Nev. 36,
42, 559 P.2d 830, 834 (1977) (Rosenthal I); Rosenthal v. State ex. rel. Gaming Comm'n, 96
Nev. 959, 962, 620 P.2d 874, 876 (1980) (Rosenthal II). Both opinions allowed Rosenthal
to retain his casino work card for employment at the Stardust in a non-gaming capacity.
Rosenthal I, 93 Nev. at 46, 559 P.2d at 837; Rosenthal II, 96 Nev. at 962, 620 P.2d at 876.
The Gaming Control Board (Board) first nominated Rosenthal for inclusion on the List
of Excluded Persons in 1979. No action was taken on this nomination. In 1988, the Board
again nominated Rosenthal for the list. In January 1989, the Commission unanimously
approved the nomination. Rosenthal filed suit in the district court to enjoin the Commission's
actions. The district court concluded that the exclusion order deprived Rosenthal of due
process of law because substantial prejudice resulted from the Commission's delay in
following through with the proceedings initiated in 1979. Applying the doctrines of laches
and equitable estoppel, the court ruled that the government was barred from taking
administrative action where significant due process rights were at stake. The court also held
that the Commission had improperly considered Rosenthal's 1963 North Carolina conviction
and that the gaming statutes were unconstitutional as applied to Rosenthal. The court ordered
that Rosenthal's name be expunged from the list.
The Commission appeals from the district court's order, contending that: (1) the court
erred in ruling that the Commission's decision to include Rosenthal on the List of Excluded
Persons was arbitrary and capricious; (2) the district court employed an improper standard of
review; (3) the court erred in ruling the Commission improperly considered Rosenthal's prior
criminal conviction; {4) the statutes and regulations governing the List of Excluded
Persons were constitutionally applied to Rosenthal; and, {5) the doctrines of laches and
equitable estoppel were inapplicable to Rosenthal's administrative hearing.
conviction; (4) the statutes and regulations governing the List of Excluded Persons were
constitutionally applied to Rosenthal; and, (5) the doctrines of laches and equitable estoppel
were inapplicable to Rosenthal's administrative hearing.
DISCUSSION
[Headnote 1]
Appellants first argue that the decision to include Rosenthal on the List of Excluded
Persons was not arbitrary and capricious as the decision was based on criteria set forth in
NRS 463.151(3).
1
A finding of any one of the criteria set forth in this statute is sufficient for
inclusion on the List of Excluded Persons. Nev. Gaming Comm'n Reg. 28.010(2) (1989).
We find that all three subsections of NRS 463.151(3) cited by appellants are applicable to
Rosenthal. First, subsection (a) applies because of Rosenthal's 1963 conviction for attempting
to bribe college basketball players. Second, subsection (c) applies because of Rosenthal's
admitted association with organized crime figures. Finally, subsection (d) applies because of
Rosenthal's ban from Florida race tracks. The existence of all three of these statutory
considerations was established by substantial evidence. The Commission was therefore
within its authority when it included Rosenthal on the List of Excluded Persons. We find
nothing arbitrary or capricious about this aspect of the Commission's decision. We hold that
the lower court erred to the extent its ruling was based on misapplication of NRS 463.151(3).
The district court's standard of review.
[Headnote 2]
Appellants secondly assert that the district court utilized a standard of review that was
contrary to express statutory provisions and the previous decisions of this court. In reversing
the Commission's decision to include Rosenthal on the List of Excluded Persons, the lower
court held that exclusion could only be supported by an objective so manifestly in the public
interest as to strongly justify the impairment or limitation. Appellants assert that the
district court's standard of review was excessive in light of this court's holding in Spilotro
v. State ex rel.
__________

1
NRS 463.151(3) reads in part:
(a) Prior conviction of a crime which is a felony in this state or under the laws of the United States, a
crime involving moral turpitude or a violation of the gaming laws of any state;
. . . .
(c) Notorious or unsavory reputation which would adversely affect public confidence and trust that
the gaming industry is free from criminal or corruptive elements; or
(d) Written order of a governmental agency which authorizes the exclusion or ejection of the person
from an establishment at which gaming or pari-mutuel wagering is conducted.
assert that the district court's standard of review was excessive in light of this court's holding
in Spilotro v. State ex rel. Gaming Commission, 99 Nev. 187, 661 P.2d 467 (1983). Judicial
review of a decision by gaming authorities to include a person on the List of Excluded
Persons is governed by statute. NRS 463.317(3).
2
Appellants cite this court's recent decision
in Clark County Liquor and Gaming v. Simon & Tucker, 106 Nev. 96, 97, 787 P.2d 782, 783
(1990), for authority that a court's role in reversing an agency decision is limited to
determination of whether the decision was arbitrary and capricious or an abuse of discretion.
Despite the district court's reference to a more exacting standard, a review of the record
indicates that the court's decision to reverse the Commission was actually premised upon
factors found NRS 463.317(3); namely, that the Commission's decision was arbitrary and
capricious and unsupported by substantial evidence. The language in the court's order to
which appellants object really amounts to nothing more than a rhetorical flourish on the part
of the trial court. Accordingly, we hold that the district court employed the proper standard of
review in evaluating the Commission's action.
The 1963 conviction for basketball fixing.
Appellants also contend the district court erroneously ruled that Rosenthal's 1963 North
Carolina conviction for basketball fixing could not be considered as a basis for exclusion.
The court's ruling was based upon two factors: (1) the conviction was entered upon a plea of
nolo contendere; and (2) Rosenthal's civil rights were subsequently restored by the North
Carolina court that accepted the plea.
[Headnotes 3, 4]
Where statutes authorize disciplinary action or license denial or revocation upon
conviction of a crime, as a general rule, the conviction may be considered even when based
upon a plea of nolo contendere. There is ample authority upholding administrative license or
entitlement denials where the applicant had previously pled nolo contendere to a crime. See
Bear v. Nicholls, 691 P.2d 326 (Ariz.Ct.App. 1984) (real estate broker's license); Kentucky
Bar Assoc. v. Taylor, 549 S.W.2d 508 (Ky. 1967) (law license); Eisenberg v.
Commonwealth Dep't of Public Welfare, 516 A.2d 333 {Pa.
__________

2
Under NRS 463.317(3), the reviewing court may affirm the Commission's decision, remand the case for
further proceedings, or reverse the decision if substantial rights of the petitioner have been prejudiced because
the decision is:
(a) In violation of constitutional provisions;
(b) In excess of the statutory authority or jurisdiction of the commission;
(c) Made upon unlawful procedure;
(d) Unsupported by any evidence; or
(e) Arbitrary or capricious or otherwise not in accordance with law.
license); Eisenberg v. Commonwealth Dep't of Public Welfare, 516 A.2d 333 (Pa. 1986)
(medicaid eligibility). We believe these cases are analogous to the present administrative
action.
[Headnotes 5, 6]
With regard to the restoration of Rosenthal's civil rights, our decision in Patt v. Nevada
State Bd. of Accountancy, 93 Nev. 548, 571 P.2d 105 (1977), is controlling. Proceedings to
suspend or revoke business or professional licenses are not included among the penalties and
disabilities that are released by an honorable discharge from probation. Id. at 549, 571 P.2d at
106. We believe the Patt holding is applicable to administrative action by the Gaming
Commission and that the district court erred in ruling that Rosenthal's 1963 conviction could
not be considered for exclusionary purposes because his civil rights were subsequently
restored.
Vagueness of the statutes and regulations governing the List of Excluded Persons.
[Headnotes 7-9]
Appellants next contend that the district court erred in concluding that the statutes and
regulations governing the List of Excluded Persons were unconstitutionally vague as applied
to Rosenthal. In determining whether a statute is unconstitutional for vagueness, this court's
review is limited to determining whether the statute either forbids or requires the doing of
any act in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application. State v. Glusman, 98 Nev. 412, 420, 651 P.2d 639,
644-45 (1982). A statute which does not impinge on First Amendment freedoms (due to the
overbreadth doctrine) may be stricken as unconstitutionally vague only if it is found to be so
in all its applications. Id. Additionally, the standard of review is less strict under a challenge
for vagueness where the review is directed at economic regulations. Id. at 421, 651 P.2d at
645.
The statutes and regulations at issue have withstood prior vagueness scrutiny. They are a
reasonable method of achieving a legitimate end of protecting the state's vital gaming
industry and thus comply with substantive due process and procedural due process. Spilotro,
99 Nev. at 194-95, 661 P.2d at 472. Thus we find no constitutional violation.
Laches and equitable estoppel.
[Headnotes 10, 11]
The parties next dispute whether the doctrine of laches applies to the government. We,
however, find it unnecessary to decide this issue because, even if the laches doctrine applies,
Rosenthal failed to show all of the necessary elements of that doctrine.
failed to show all of the necessary elements of that doctrine. Laches is more than a party
delaying the enforcement of his rights; it is delay that works a disadvantage to another. Home
Savings v. Bigelow, 105 Nev. 494, 496, 779 P.2d 85, 86 (1989) (citing Cooney v. Pedrolie,
49 Nev. 55, 62, 235 P. 637, 640 (1925)). As a result of such delay, the condition of the party
asserting laches becomes drastically altered, whereby he cannot be restored to his former
state. Id.
While appellants unpersuasively submit that the nine-year delay was the result of limited
resources and the pursuit of loftier matters, we nevertheless fail to see how Rosenthal has
been prejudiced as a result of the delay. Rosenthal postulates that the evidence reveals two
reasons justifying the district court's finding of prejudice. First, prejudice resulted from being
brought into face with this kind of indignity and scorn some five or six years after he left the
State of Nevada. Second, the Commission introduced witnesses who testified about facts
that Rosenthal implies would have been unavailable to the Commission absent the delay.
Neither reason, however, shows any change in Rosenthal's position. In fact, the second
proffered reason tends more to justify the delay than to show prejudice. The delay must cause
actual prejudice, Memory Gardens v. Pet Ponderosa, 88 Nev. 1, 4, 492 P.2d 123, 124 (1972),
not alleged prejudicebased on illusory or mythic concepts.
[Headnote 12]
Similarly, we believe the district court erred in finding the doctrine of equitable estoppel
barred Rosenthal's placement on the List of Excluded Persons. Again, we do not address the
question of the doctrine's applicability to government action, as we fail to see how Rosenthal
has detrimentally relied on the delay. As appellants argue, Rosenthal had no reasonable
expectation that exclusion proceedings would not be instituted against him. Since Rosenthal
failed to prove all of the elements of this defense, we find the district court erred in finding
the Commission was equitably estopped from placing Rosenthal on the List of Excluded
Persons.
Accordingly, for the reasons set forth above, we reverse the district court's order
expunging Rosenthal from the List of Excluded Persons.
Mowbray, C. J., Springer and Steffen, JJ., and Adams, D. J., concur.
3

__________

3
The Honorable Brent T. Adams, Judge of the Second Judicial District Court, was designated by the
Governor to sit in place of The Honorable Robert E. Rose, Justice. Nev. Const. art. VI, 4.
____________
107 Nev. 779, 779 (1991) Burrows v. Progressive Casualty Ins.
MARVIN D. BURROWS, WARREN J. MAXEY, M & B WHOLESALE BAIT, a
Partnership, SYLVIA ABRIL AND ALFRED ABRIL, Appellants, v. PROGRESSIVE
CASUALTY INSURANCE COMPANY, Respondent.
No. 21484
November 4, 1991 820 P.2d 748
Appeal from judgment in favor of respondent in an action for declaratory relief. Eighth
Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
The district court issued declaratory judgment that automobile business liability policy did
not cover injuries sustained by third party in automobile accident. Insureds under policy and
accident victims appealed. The supreme court held that: (1) policy exclusion for accidents
involving automobiles furnished for your regular or frequent use, referred to use by
partnership and not use by partner, and (2) remand was necessary for determination of
whether vehicle had been furnished for partnership's use.
Jonathan C. Reed and David Abbatangelo, Las Vegas, for Appellants.
William L. Wolfbrandt, Las Vegas, for Respondent.
1. Insurance.
An insurance policy is a contract; as such, policy is enforced according to its terms so as to effectuate parties' intent.
2. Insurance.
In determining whether a nonlisted automobile was furnished for your regular or frequent use, so as to be excluded from
coverage under business automobile liability policy, issue was whether vehicle involved in accident had been furnished for use of
partnership engaged in business, which was named insured, rather than whether it had been furnished for use of a partner who was also
a named insured.
Remand was required to determine whether pickup truck owned by partner in fish delivery business, which was being driven by
other partner while making delivery when accident occurred, was covered as an automobile furnished for regular or frequent use of
insured; parties had incorrectly focused on whether partner had furnished vehicle for use of other partner, rather than for use of
partnership.
OPINION
Per Curiam:
This is an appeal from a declaratory judgment holding that the insurance policy issued by
respondent to appellants Marvin D.
Burrows and M & B Wholesale Bait did not cover the injuries sustained by appellants Sylvia
and Alfred Abril in an automobile accident. For the following reasons, we reverse the
judgment and remand back to the district court for further proceedings consistent with this
opinion.
In 1982, Marvin D. Burrows (Burrows) and Warren J. Maxey (Maxey) formed a
partnership, called M & B Wholesale Bait (M & B), to buy and sell fish. The business also
included delivering fish to various locations. In 1984, to accomplish the deliveries, M & B
purchased a 1984 International two and one-half ton truck and a 1984 International truck. The
two trucks were specially equipped to haul fish.
M & B purchased business auto insurance from respondent Progressive Casualty Insurance
Company (PCIC), covering the two International trucks. The policy was issued on
December 19, 1985, covering through December 19, 1986, and it was renewed for the period
of December 19, 1986, through December 19, 1987. The policy declaration named both
Marvin Burroughs
1
and M & B Wholesale Bait as the named insured.
Burrows and Maxey each personally owned a pickup truck. Burrows owned a Chevy Luv
pickup truck, and Maxey owned a 1984 Ford pickup truck. During December of 1985 through
December of 1986, these trucks sometimes hauled the small deliveries for M & B.
In December of 1986, Maxey flew to New Mexico to visit his family during the Christmas
holiday season. Maxey left his 1984 Ford pickup at Burrows' house and gave Burrows the
keys. While Burrows drove his partner to the airport, Maxey authorized Burrows to use the
truck if anything came up. During Maxey's absence, Burrows used Maxey's pickup truck only
one time; on December 30, 1986, in the course and scope of M & B's business, Burrows was
delivering fish. En route, Burrows caused a traffic accident, injuring the Abrils.
The Abrils filed a tort claim
2
against M & B, Burrows, and Maxey. Thereafter, PCIC filed
this declaratory action, seeking a declaration that its issued policy did not cover the damages
sustained by the Abrils. Basing its decision on exhibits, trial briefs, and oral arguments, the
district court found that the personal vehicles of Maxey and Burrows were furnished for
the regular use of M & B and that, consequently, coverage of the Abrils' injuries was
precluded under the policy's omnibus clause.
__________

1
A misspelled name for appellant Burrows.

2
The record indicates that the tort claim is pending in Abrils v. M & B Wholesale Bait, Marvin Dewey
Burrows, & Warren Maxey, Case No. A270446. Plus, there was an earlier declaratory action, Northwest Farm
Bureau Insurance Company v. Burrows et al., Case No. A268889, where Burrows' personal auto insurance
company denied coverage, alleging the truck was furnished to Burrows for his regular use. Yet after taking the
depositions of Burrows and Maxey, Burrows' insurer paid the policy limits of $50,000 to each of the Abrils.
briefs, and oral arguments, the district court found that the personal vehicles of Maxey and
Burrows were furnished for the regular use of M & B and that, consequently, coverage of the
Abrils' injuries was precluded under the policy's omnibus clause.
On appeal, appellants argue that the district court erred in declaring that insurance policy
did not cover the automobile accident because Maxey's 1984 Ford pickup truck was not
furnished for Burrows's regular or frequent use, and thus the accident is covered under the
policy's omnibus clause. In response, PCIC asserts that appellants misconstrue the real issue
and that the dispositive question is whether the 1984 Ford pickup truck was furnished for the
regular or frequent use of M & B.
[Headnotes 1, 2]
An insurance policy is a contract; as such, the policy is enforced according to its terms so
as to effectuate the parties' intent. Sullivan v. Dairyland Insurance Co., 98 Nev. 364, 366, 649
P.2d 1387, 1388 (1982). We agree with PCIC's articulation of the issue: whether Maxey's
1984 Ford pickup was furnished for the regular or frequent use of M & B. The insurance
policy provided:
We will pay, on behalf of an insured, damages other than punitive damages for which
any insured is legally liable because of bodily injury and property damage caused by
accident and resulting from the ownership, maintenance, or use of your insured auto.
We will not pay more than the Limits of Liability shown in the Declaration for all
damages resulting from one accident.
(Emphasis in original.) The term insured is further defined as:
When used in PART I, Insured means:
1. You while driving your insured auto.
2. You while driving any auto other than your insured auto, except:
. . . .
b. autos furnished for your regular or frequent use.
(Emphasis in original.) The terms You and your were defined as the person or
organization shown in the Declarations as the named insured. Under the omnibus clause,
coverage extended to the insured named in the declaration when driving a vehicle not insured
under the policy issued by PCIC. But this extended coverage was precluded if that vehicle
was furnished for the named insured's regular or frequent use. The insurance policy lists
both Marvin Burroughs and M & B Wholesale Bait as the named insured. Therefore, we
hold that if any non-listed vehicle was furnished for the "regular or frequent use" of either
Burrows or M & B, extended coverage was precluded.
vehicle was furnished for the regular or frequent use of either Burrows or M & B, extended
coverage was precluded.
[Headnote 3]
In the lower court, the parties focused on whether Maxey furnished his 1984 Ford pickup
for Burrows' regular or frequent use. As a result, the record is devoid of evidence, except
for scant implications, of whether Maxey's and Burrows' personally owned pickups were
furnished for the regular or frequent use of M & B. The district court's findings of fact will
not be set aside unless clearly erroneous. Hermann v. Varco-Pruden Buildings, 106 Nev. 564,
566, 796 P.2d 590, 592 (1990) (citing Trident Construction Corp. v. West Electric, Inc., 105
Nev. 423, 427, 776 P.2d 1239, 1241 (1989)). We conclude that there is insufficient evidence
to support the district court's finding. Hence, we remand this matter to the district court for
further consideration as to whether the 1984 Ford pickup was furnished for the regular or
frequent use of M & B.
Accordingly, the district court's judgment is reversed, and this matter is remanded to the
district court for further proceedings consistent with the views expressed herein.
Mowbray, C. J., Rose, Steffen, Young, JJ., and Huffaker, D. J.,
3
concur.
____________
107 Nev. 782, 782 (1991) Etcheverry v. State
TERRY DON ETCHEVERRY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22079
November 4, 1991 821 P.2d 350
Appeal from a jury conviction for one count of driving under the influence and causing
substantial bodily harm. Eighth Judicial District Court, Clark County; John F. Mendoza,
Judge.
Defendant was convicted in the district court of felony drunk driving, and was sentenced
to five years in prison and fined $5,000. Defendant appealed. The supreme court held that: (1)
jury instruction was proper, and (2) sentence was not abuse of discretion.
Affirmed.
James R. Lucas, Las Vegas, for Appellant.
__________

3
The Honorable Stephen L. Huffaker, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Charles E. Springer, Justice. Nev. Const. art. VI, 4.
Tufteland, Chief Deputy District Attorney, and Eric G. Jorgenson, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Defendant's failure to object to jury instruction or offer alternative instruction waived issue on appeal of propriety of instruction
given.
2. Automobiles.
Defendant was exonerated from felony drunk driving for his involvement in serious collision only if alleged steering mechanism
failure in defendant's car was sole cause of injuries sustained by other driver.
3. Criminal Law.
To exculpate a criminal defendant by breaking chain of causation, any intervening cause of injury must be sole cause of injury.
A grand jury only needs to find probable cause, which may be based on slight, even marginal evidence because such finding does
not involve determination of guilt or innocence of accused.
5. Criminal Law.
Recommendation of Department of Prisons or Department of Parole and Probation has no binding effect on courts.
6. Automobiles.
Sentence of five years in prison and fine of $5,000 for conviction of felony drunk driving was well within statutory sentencing
requirements and was not abuse of discretion. NRS 484.3795, subd. 1.
OPINION
Per Curiam:
The primary question on appeal is whether a jury instruction defining proximate cause was
proper and, if not, whether appellant's failure to object at trial precludes this court's review.
We hold that appellant's failure to object was fatal. Further, the jury instructions were not in
error. Appellant also alleges that the district judge abused his discretion in the sentencing
process. We conclude that the district court acted properly.
THE FACTS
Terry Etcheverry (Etcheverry) was arrested for felony drunk driving following a serious
collision with Bruce Costa (Costa) early in the morning on July 22, 1989. While traveling
in the northbound lane on Valley View, between Charleston Boulevard and Oakey Boulevard,
Etcheverry crossed the median line while negotiating an S curve. Costa was traveling
southbound on the same road and was unable to avoid a collision. Approximately two hours
later, Etcheverry's blood alcohol level was measured at 0.22 percent, more than double the
legal limit allowed under NRS 4S4.3795.1 Etcheverry could not provide Las Vegas
Metropolitan Police with any explanation as to what may have caused the accident.
was measured at 0.22 percent, more than double the legal limit allowed under NRS 484.3795.
1
Etcheverry could not provide Las Vegas Metropolitan Police with any explanation as to
what may have caused the accident. Costa was hospitalized for six weeks and suffered a
ruptured spleen and a fractured pelvis, among other injuries.
At trial, Etcheverry produced expert witnesses who testified that a steering failure in
Etcheverry's vehicle, occurring almost immediately before impact, was the actual cause of the
collision. Etcheverry therefore claimed that the accident was not proximately caused by his
intoxication, but that the alleged steering failure was, in fact, the sole cause of the collision.
There were no skid marks found at the accident to indicate that Etcheverry had applied his
brakes. The jury concluded that the accident was indeed proximately caused by Etcheverry's
condition. Etcheverry was convicted on May 24, 1990, and committed to the Department of
Prisons for a 120-day evaluation on August 22, 1990. On January 3, 1991, he received a
sentence of five years in prison and fined $5,000.00. This appeal followed.
DISCUSSION
[Headnotes 1, 2]
Etcheverry maintains that the district court improperly instructed the jury on the issue of
proximate cause. Jury Instruction No. 9, in essence, stated that the jury could only exonerate
Etcheverry if it determined that the alleged failure in the steering mechanism, presumably
resulting from the negligence of an unknown mechanic, was the sole cause of the injuries
sustained by Costa. Etcheverry did not object to the instruction nor did he offer any additional
or alternative instructions. This court has previously held that [t]he failure to object or to
request special instruction to the jury precludes appellate consideration.
__________

1
484.3795 Driving under the influence of intoxicating liquor or controlled substance: Penalty if death
or substantial bodily harm results; segregation of offender; plea bargaining prohibited; limitations on
probation and suspension of sentence.
1. Any person who, while under the influence of intoxicating liquor or with 0.10 percent or more by
weight of alcohol in his blood, . . . to a degree which renders him incapable of safely driving or
exercising actual physical control of a vehicle, does any act or neglects any duty imposed by law while
driving or in actual physical control of any vehicle on or off the highways of this state, if the act or
neglect of duty proximately causes the death of, or substantial bodily harm to, any person other than
himself, shall be punished by imprisonment in the state prison for not less than 1 year nor more than 20
years and just be further punished by a fine of not less than $2,000 nor more than $5,000.
(Emphasis added.)
McCall v. State, 91 Nev. 556, 557, 540 P.2d 95, 95 (1975) (citing State v. Fouquette, 67 Nev.
505, 221 P.2d 404 (1950); Clark v. State, 89 Nev. 392, 513 P.2d 1224 (1973); Cook v. State,
77 Nev. 83, 359 P.2d 483 (1961)). If Etcheverry wanted to object or offer an alternative
instruction, it was incumbent on him to prepare such an instruction and request the court to
give it . . . This was not done. Instead, the record reflects that appellant neither objected to the
given instruction, nor voiced any other concern about the matter at trial. St. Pierre v. State,
92 Nev. 546, 548, 554 P.2d 1126, 1127 (1976) (citations omitted). Therefore, Etcheverry has
no basis for appeal here.
[Headnotes 3, 4]
In addition, we note that the jury instruction was an accurate statement of Nevada law.
This court has held that the criminal defendant can only be exculpated where, due to a
superseding cause, he was in no way the proximate cause of the result. Trent v. Clark Co.
Juv. Ct. Services, 88 Nev. 573, 577, 502 P.2d 385, 388 (1972) (quoting R. Anderson,
Wharton's Criminal Law and Procedure 986 (1957)). Any intervening cause must,
effectively, break the chain of causation. Bostic v. State, 104 Nev. 367, 370, 760 P.2d 1241,
1243 (1988). Thus, an intervening cause must be a superseding cause, or the sole cause of the
injury in order to completely excuse the prior act. See Drummond v. Mid-West Growers, 91
Nev. 698, 705, 542 P.2d 198, 203 (1975) (citing Konig v. Nevada-California-Oregon Ry., 36
Nev. 181, 135 P.141 (1913); Alex Novack & Sons v. Hoppin, 77 Nev. 33, 359 P.2d 390
(1961)). Etcheverry testified that he was only affected by the alcohol to a small extent.
However, its affect to any extent in contributing to Costa's injuries, no matter how small, may
be enough to show proximate cause. See Alex Novack & Sons, 77 Nev. at 39, 359 P.2d at 393
(any act or omission may be regarded in law as a proximate cause.). Therefore, there was
no error in the instruction provided to the jury.
2

Etcheverry also alleges that the district judge abused his discretion in the sentencing
process. The judge stated on the record that he disregarded the recommendation from
__________

2
Etcheverry also challenges the instructions provided to the grand jury prior to the indictment. This issue
was previously raised by Mr. Etcheverry and rejected by the district court on a pretrial writ of habeas corpus. A
grand jury only needs to find probable cause, which may be based on slight, even marginal' evidence . . .
because it does not involve a determination of the guilt or innocence of an accused. Sheriff v. Hodes, 96 Nev.
184, 186, 606 P.2d 178, 180 (1980) (citing Sheriff v. Badillo, 95 Nev. 593, 600 P.2d 221 (1979) (citations
omitted)); Perkins v. Sheriff, 92 Nev. 180, 547 P.2d 312 (1976); Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d 340
(1971)). We conclude that there was sufficient evidence to uphold the indictment. See Snow v. State, 101 Nev.
439, 445, 705 P.2d 632, 637 (1985), cert. denied, 475 U.S. 1031 (1986).
that he disregarded the recommendation from the Department of Parole and Probation, which
urged a sentence of eight years and a $2,000.00 fine. The judge also opted to dismiss the
120-day evaluation report submitted by the Department of Prisons, which recommended
parole.
3
We stress that a judge has no duty beyond disclos[ing] . . . the factual content of
the report of the presentence investigation and the recommendations of the probation service
and afford[ing] an opportunity to each party to comment thereon. Shields v. State, 97 Nev.
472, 473, 634 P.2d 468, 468 (1981) (quoting NRS 176.156). The record reflects that the
district court acted accordingly.
[Headnotes 5, 6]
A recommendation of the Department of Prisons of the Department of Parole and
Probation has no binding effect on the courts. Lloyd v. State, 94 Nev. 167, 170, 576 P.2d 740,
742 (1978). Moreover, we recognize that [t]he sentencing judge has wide discretion in
imposing a sentence. . . . Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987).
The sentence imposed was well within the statutory limits of NRS 484.3795(1), and there has
been no showing that the district judge relied on any impalpable or highly suspect evidence.
See Lloyd, 94 Nev. at 170, 576 P.2d at 742. Therefore, there was no abuse of discretion.
We have considered all other issues on appeal and conclude that they are without merit.
Accordingly, we affirm the district court.
Mowbray, C. J., Rose, Steffen, Young, JJ., and Lehman, D. J.,
4
concur.
__________

3
NRS 484.3795 imposes mandatory confinement of one (1) year. Parole, without incarceration, is not an
option.

4
The Honorable Jack Lehman, Judge of the Eighth Judicial District Court, was designated by the Governor
____________
107 Nev. 787, 787 (1991) Burnett v. C.B.A. Security Service
CAROLYN ANN BURNETT, Individually; CAROLYN ANN BURNETT as Mother and
Natural Guardian of JOHNATHAN DICKERSON, and CAROLYN ANN
BURNETT, as Mother and Natural Guardian of BABY BURNETT, Appellant, v.
C.B.A. SECURITY SERVICE, INCORPORATED, Respondent.
No. 21431
November 5, 1991 820 P.2d 750
Appeal from an order of the district court granting a motion for summary judgment. Eighth
Driver who was injured in automobile accident when his vehicle collided with tenant's
vehicle being driven by apartment security guard brought suit against security company, as
employer of guard. Security company's motion for summary judgment was granted by the
district court and driver appealed. The supreme court held that: (1) apartment security guard
was acting outside scope of employment and was not furthering business interests of security
company when he took automobile and drive it, and (2) security company acted reasonably in
hiring security guard, and thus could not be held liable to driver of other vehicle.
Affirmed.
David Allen & Associates and Kenneth L. Hall and Daniel L. O'Brien, Las Vegas, for
Appellant.
Barker, Gillock, Koning, Brown & Earley, Las Vegas, for Respondent.
1. Automobiles.
Apartment security guard, who had once previously used tenant's automobile with permission but who subsequently took keys
from desk at apartment complex without permission and was involved in automobile accident, was acting outside scope of employment
and was not furthering business interests of security company which employed him when he took automobile and drove it, and thus,
security company could not be held vicariously liable for any of damages suffered by other driver.
2. Automobiles.
Security company, which verified information provided in employment application by security guard, indicating previous
experience as security guard, and which required guard to secure county sheriff's card, subjecting him to further preemployment
investigation, acted reasonably in hiring security guard, and thus could not be held liable to driver of other vehicle, who was injured
when his vehicle was struck by tenant's vehicle being driven by security guard without tenant's permission.
Tort of negligent hiring imposes general duty on employer to conduct reasonable background check on potential employee to
ensure the employee is fit for position.
4. Pleading.
Motion to amend complaint in personal injury suit brought under respondent superior and negligent hiring theories could be
denied, where motion to amend was filed three years after original complaint was filed, six years after automobile accident giving rise
to suit, and after defendant's motion for summary judgment, and would not have added justiciable cause of action to case.
5. Pleading.
Delay, bad faith, or dilatory motive are all sufficient reasons to deny motion to amend pleading.
OPINION
Per Curiam:
THE FACTS
Jack Robinson was employed as a security guard by C.B.A. Security (hereinafter CBA)
and was stationed at an apartment complex called the Regency Towers. In March, 1984, a
tenant at the Regency Towers allowed Robinson to use an automobile. Thereafter, Robinson
returned the automobile as instructed and left its keys at the front desk of the apartment
complex.
A few days later, while Robinson was off duty, he approached the front desk of the
Regency Towers and asked for the keys, representing that he was acting with the permission
of the owner. An attendant gave the keys to Robinson, apparently unaware that Robinson did
not in fact have permission to use the vehicle at that time. Robinson then drove the
automobile down Las Vegas Boulevard and collided with a vehicle driven by the appellant
(hereinafter Burnett).
Burnett filed a complaint, naming CBA as a co-defendant, alleging that CBA was
vicariously liable for Burnett's injuries, and that CBA negligently hired Robinson. The district
court granted CBA's motion for summary judgment, thereby releasing CBA as a defendant.
The district court also denied Burnett's motion for leave to amend her complaint. This appeal
followed.
1. PROPRIETY OF SUMMARY JUDGMENT.
Summary judgment is appropriate only where no genuine issues of fact remain for trial and
one party is entitled to judgment as a matter of law. See NRCP 56(c); Pacific Pools Constr. v.
McClain's Concrete, 101 Nev. 557, 706 P.2d 849 (1985). We conclude under this standard
that the district court properly entered summary judgment for CBA.
[Headnote 1]
[R]espondeat superior liability attaches only when the employee is under the control of
the employer and when the act is within the scope of employment. Molino v. Asher, 96 Nev.
814, 817, 618 P.2d 878, 879 (1980). The undisputed facts of this case demonstrate that
Robinson acted outside the scope of his employment and was not furthering the business
interests of CBA when he took the automobile and drove it down Las Vegas Boulevard.
Therefore, CBA cannot he held vicariously liable for any of Burnett's damages.
1
See Molino,
96 Nev. at 817, 618 P.2d at 879.
[Headnotes 2, 3]
The tort of negligent hiring imposes a general duty on the employer to conduct a
reasonable background check on a potential employee to ensure that the employee is fit for
the position. See Banks v. Nordstrom, Inc., 787 P.2d 953, 960 (Wash.Ct.App. 1990). The
undisputed facts of this case indicate that Robinson had previous experience as a security
guard and that CBA examined his background by verifying the information provided in
Robinson's employment application. CBA also required Robinson to secure a Clark County
Sheriff's card, which subjected Robinson to an additional preemployment background
investigation by the Clark County Sheriff's Department. Neither background investigation
revealed any indication that Robinson would use his position to misappropriate a motor
vehicle. We conclude under these circumstances that the district court properly determined
that CBA acted reasonably when it hired Robinson.
2. DENIAL OF BURNETT'S MOTION TO AMEND.
[Headnotes 4, 5]
It is well-settled that the decision to deny a motion to amend a complaint is within the
sound discretion of the district court, and will not be reversed unless the record reflects an
abuse of the discretion. See Stephens v. Southern Nevada Music Co., 89 Nev. 104, 507 P.2d
138 (1973). Delay, bad faith, or a dilatory motive are all sufficient reasons to deny a motion
to amend a pleading. Id.
In the present case, Burnett filed her motion to amend the complaint approximately three
years after the original complaint was filed, and six years after the accident occurred. The
motion was filed subsequent to CBA's motion for summary judgment and would not have
added a justiciable cause of action to this case. Under these circumstances, we concluded that
the district court properly denied Burnett's motion to amend her complaint.
__________

1
Because Robinson acted outside the scope of his employment, NRS 648.140(2) does not apply to this case.
CONCLUSION
The district court properly granted respondent's motion for summary judgment, and denied
appellant's motion to amend her complaint. Accordingly, we affirm the judgment entered
below.
____________
107 Nev. 790, 790 (1991) Adams v. Adams
DONALD R. ADAMS, Appellant, v. CYNTHIA ADAMS, Respondent.
No. 21635
November 5, 1991 820 P.2d 752
Appeal from an order of the district court granting respondent's motion for reinstatement
of a prior child custody order. Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Father, who had obtained custody of children pursuant to Nevada court decree, and who
subsequently obtained California court order suspending mother's visitation rights, requested
that the Nevada court relinquish jurisdiction. The district court retained jurisdiction,
reinstated the original decree, and father appealed. The supreme court held that the Nevada
court was not required to give credit to the California court's order.
Affirmed.
Rodney E. Sumpter, Reno, for Appellant.
Dean R. Heidrich, Reno, for Respondent.
1. Judgment.
Full faith and credit doctrine requires each state to give effect to the judicial proceedings of other states. 28 U.S.C.A. 1738;
U.S.C.A.Const. art. 4, 1.
2. Divorce.
Nevada court need not and should not afford full faith and credit to California court order attempting to modify Nevada court's
preexisting child custody decree issued one month earlier; Nevada court was continuing to exercise jurisdiction, and father who
obtained subsequent order was indulging in kind of forum shopping the Parental Kidnapping Prevention Act (PKPA) was enacted to
prevent. 28 U.S.C.A. 1738A(a), (d), (f), (g); U.S.C.A.Const. art. 4, 1.
3. Divorce.
Nevada court was not required to afford recognition to order of California court attempting to modify preexisting child custody
decree by Nevada court, under Nevada's Uniform Child Custody Jurisdiction Act (UCCJA), even though California court acted
appropriately when it assumed emergency jurisdiction based on child abuse claims; Nevada judge properly responded to California
court's decree by personally conferring with California judge to resolve jurisdictional issue.
107 Nev. 790, 791 (1991) Adams v. Adams
conferring with California judge to resolve jurisdictional issue. NRS 125A.070, subd. 4, 125A.170; West's Ann. Cal.Civ.Code 5152
(1)(c)(ii).
4. Divorce.
California court order suspending mother's visitation privileges granted under prior Nevada court's child custody decree issued one
month earlier had no effect upon preexisting order, which remained continuously in effect, where Nevada court was not required to
recognize California court order under either Parental Kidnapping Prevention Act (PKPA) or Nevada's Uniform Child Custody
Jurisdiction Act (UCCJA). NRS 125A.170; 28 U.S.C.A. 1738A(a), (d), (f), (g).
OPINION
Per Curiam:
THE FACTS
Donald and Cynthia Adams were divorced in 1985. The decree of divorce, filed April 19,
1985, outlined a physical custody agreement regarding the parties' three minor children. This
agreement provided in relevant part as follows:
[C]ustody of the minor children of the parties is hereby awarded to [Cynthia Adams],
subject to [Donald Adams'] rights of reasonable visitation; . . . [Donald Adams] shall
have extended visitation with the minor children during the summer months (June
through August) each and every year beginning in June, 1986. . . .
After the divorce, Cynthia and the children lived with Cynthia's male friend, Thad Giles.
After allegations surfaced that Thad Giles sexually assaulted the children, the district court
held a hearing and, by order dated February 1, 1988, modified the existent custody
arrangement. Donald Adams was awarded physical custody of the children with weekend
visitation rights awarded to Cynthia Adams.
Eventually, another hearing was conducted on October 18, 1988. On December 27, 1988,
the district court further modified the physical custody arrangement by an order that provided
in relevant part:
IT IS HEREBY ORDERED that the existing custody is modified as follows:
1. On the fourth weekend of each month, [Cynthia Adams] shall have forty-eight
(48) hours unsupervised visitation with the minor children in Reno and [Donald
Adams] is hereby ordered to provide transportation for the minor children.
. . . .
4. [Cynthia Adams] is not to allow the children to be in the presence of Thad Giles
during any visitation time until further ordered by this Court.
107 Nev. 790, 792 (1991) Adams v. Adams
the presence of Thad Giles during any visitation time until further ordered by this
Court.
On January 26, 1989approximately one month after the District Court of Nevada issued
its December 27, 1988 visitation orderDonald Adams, who now resides with the three
children in northern California, filed a Complaint to Establish Foreign Judgment in the
Superior Court of California. After receiving the complaint, the California superior court
ordered a suspension of Cynthia Adams' visitation rights pending further hearings. Donald
Adams also filed a Motion for Finding of Inconvenient Forum in the District Court of
Nevada. This motion asked the Nevada district court to relinquish its jurisdiction in this
matter to the California court.
On July 5, 1990, the Nevada district court judgein apparent concert with the California
superior court judgedecided Nevada should retain its jurisdiction over the custody and
welfare of the subject minor children. The day after the district court rendered this decision,
Cynthia Adams filed a motion for reinstatement of the December 27, 1988 order which had
granted her unsupervised monthly visitation with the children for forty-eight hours during the
last weekend of each month. Donald Adams filed an opposition.
The matter was submitted to the district court judge. In a terse order dated September 12,
1990, Cynthia Adams' motion for reinstatement was granted. This appeal followed.
BACKGROUND OF THE LAW
[Headnote 1]
The full faith and credit doctrine requires each state to give effect to the judicial
proceedings of other states. U.S. Const. art. IV, 1; 28 U.S.C. 1738 (1988). However,
custody orders hold an anomalous status under this doctrine. Some courts have reasoned that
since custody orders may be modified to suit the best interests of a child, they are not always
sufficiently final to trigger full faith and credit requirements. See Hooks v. Hooks, 771 F.2d
935, 948, (6th Cir. 1985); McDougald v. Jenson, 596 F.Supp. 680, 684-685 (N.D.Fla. 1984),
aff'd, 786 F.2d 1465 (11th Cir. 1986), cert. denied, 479 U.S. 860 (1986). The United States
Supreme Court has expressly declined opportunities to settle this question. See Ford v. Ford,
371 U.S. 187, 192 (1962). Further, the United States Supreme Court has said:
Even if custody orders were subject to full faith and credit requirements, the Full Faith
and Credit Clause obliges States only to accord the same force to judgments as would
be accorded by the courts of the State in which the judgment was entered.
107 Nev. 790, 793 (1991) Adams v. Adams
was entered. Because courts entering custody orders generally retain the power to
modify them, courts in other States were no less entitled to change the terms of custody
according to their own views of the child's best interest.
Thompson v. Thompson, 484 U.S. 174, 180 (1988).
This anomaly to the full faith and credit doctrine has been problematic. As of 1980, an
estimated 25,000 to 100,000 children have been abducted by parents whoin order to obtain
a more favorable child custody awardtook the children to another forum state to relitigate
the child custody issues. Id. at 181. This, in turn, lead to impasses between two state forums
where different spouses were awarded sole physical custody of a minor child.
1

A. Uniform Child Custody Jurisdiction Act.
The National Conference of Commissioners on Uniform State Laws attempted to deal with
this problem by promulgating the Uniform Child Custody Jurisdiction Act (UCCJA). See
Unif. Child Custody Juris. Act 1-28, 9 U.L.A. 116-170 (1968). Some of the stated
purposes of this act are to avoid jurisdictional competition and deter abductions of children
by enforcement of preexisting custody decrees from other states. See Unif. Child Custody
Juris. Act 1(a)(1),(5), 9 U.L.A. 123-124 (1968). Nevada has adopted the UCCJA and
adheres to the stated purposes and policies underlying the act. See NRS 125A.020. To
facilitate these policies, our UCCJA establishes four grounds which endow our state courts
with jurisdiction in these cases. See NRS 125A.050(1). California has likewise adopted the
UCCJA and the four jurisdictional grounds set forth therein. California accepted emergency
jurisdiction in the present case because of Donald Adams' allegation that the subject children
were being abused by Thad Giles. See Cal. Unif. Child Custody Juris. Act, Cal. Civ. Code
5152(1)(c)(ii) (West 1983).
Not only are jurisdictional standards tightened under the UCCJA, but the act also
establishes stringent standards for the modification of a custody decree of another state. In
order to prevent forum shopping, California's Uniform Child Custody Jurisdiction Act
provides: 1.
__________

1
For example, in Thompson, a mother petitioned the Los Angeles superior court to dissolve her marriage.
The California court awarded the mother sole physical custody of her child pending the submission of a child
custody report. The mother moved to Louisiana with the child. Three months later, the mother filed a petition in
the Louisiana state court for enforcement of the California custody decree. The Louisiana court granted the
mother's petition. Two months later, however, the California court, after receiving the child custody evaluation,
awarded sole physical custody of the subject minor child to the father. Thompson, 484 U.S. at 177-178.
107 Nev. 790, 794 (1991) Adams v. Adams
1. If a court of another state has made a custody decree, a court of this state shall not
modify that decree unless (a) it appears to the court of this state that the court which
rendered the decree does not now have jurisdiction under jurisdictional prerequisites
substantially in accordance with this title or has declined to assume jurisdiction to
modify the decree and (b) the court of this state has jurisdiction.
See Cal. Civ. Code 5163 (West 1983); see also NRS 125A.180(a). Further, the UCCJA
provisions in Nevada and California also mandate the recognition of foreign decrees under
specified circumstances. See NRS 125A.170; see also Cal. Civ. Code 5162 (West 1983).
However, the UCCJA is not a panacea. Some states have not adopted the act; others have
adopted the act with significant modifications. Also, the UCCJA does not address situations
where two state courts construe their respective provisions of the UCCJA differently. In cases
where two state constructions of the act result in substantially conflicting custody orders, the
United States Supreme Court has abstained from determining which decree is valid to avoid
interpretations of state law. See Webb. v. Webb, 451 U.S. 493, 497 (1981).
B. Parental Kidnapping Prevention Act.
In an apparent attempt to resolve any remaining jurisdictional problems in this area,
Congress enacted the Parental Kidnapping Prevention Act. (PKPA). See 28 U.S.C. 1738A
(1988). Essentially, the PKPA requires each state to afford full faith and credit to another
state's preexisting custody decree if the preexisting decree was made consistently with the
provisions of the act.
The PKPA does not afford litigants a private cause of action to enforce state compliance
with the act in the federal courts. Thompson, 484 U.S. at 186-187. However, the act does
contain provisions that attempt to solve the problem of two state courts asserting concurrent
jurisdiction in order to modify an original custody decree. First, the PKPA bestows
continuing jurisdiction over the matter upon the state court which issued a prior child custody
decree so long as that state maintains jurisdiction under its state law and is the residence of a
parent or the child. See 28 U.S.C. 1738A(d) (1988). Further, a second state court cannot
exercise concurrent jurisdiction over the matter if the first state retains and exercises
jurisdiction as provided by the PKPA. See 28 U.S.C. 1738A(g) (1988). Finally, a second
state is only allowed to modify a preexisting custody award entered by the first state if the
first state no longer has jurisdiction or refuses to exercise continuing jurisdiction.
107 Nev. 790, 795 (1991) Adams v. Adams
exercise continuing jurisdiction. See 28 U.S.C. 1738A(f) (1988).
Thus, the central issue evolves: Should Nevada recognizeunder either the full faith and
credit doctrine, the UCCJA or the PKPAthe California superior court order that vacated
Cynthia Adams' visitation privileges until further hearing? We conclude it should not.
APPLICATION OF THE LAW
[Headnote 2]
First, we need not afford full faith and credit to the California superior court's attempt to
modify the December 27, 1988 order that issued from the Nevada district court. As
previously mentioned, a state court is not allowed to modify a preexisting child custody order
under the PKPA unless the court which rendered the preexisting order no longer has
jurisdiction over the matter or has declined to exercise such jurisdiction.
Since Nevada continues to exercise its jurisdiction over this case, Nevada need not afford
full faith and credit to the California order pursuant to the requisites of the PKPA. See 28
U.S.C. 1738A(a) (1988); 28 U.S.C. 1738A(d) (1988); 28 U.S.C. 1738A(f) (1988); 28
U.S.C. 1738A(g) (1988). Further, we conclude Nevada should not afford full faith and
credit to the January 27, 1989, California order. It is apparent from the facts of this case that
Donald Adams was indulging in the kind of forum shopping that the PKPA was enacted to
prevent when he attempted to remove this matter from the courts of Nevada one month after
the Nevada district court issued its custody/visitation order. Had Donald Adams felt that new
facts and circumstances warranted a modification of the December 27, 1988
custody/visitation order, he could have requested a modification in Nevada.
[Headnote 3]
Likewise, we conclude Nevada need not afford recognition to the California superior court
order under Nevada's UCCJA. Specifically, NRS 125A.170 provides:
The courts of this state shall recognize and enforce an initial or modifying decree of
a court of another state which had assumed jurisdiction under statutory provisions
substantially in accordance with the Uniform Child Custody Jurisdiction Act, or the
Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.), or which was made
under factual circumstances meeting the jurisdictional standards of those acts, so long
as this decree has not been modified in accordance with jurisdictional standards
substantially similar to those of those acts.
107 Nev. 790, 796 (1991) Adams v. Adams
ance with jurisdictional standards substantially similar to those of those acts.
Again, however, California's UCCJA precludes the California courts from accepting
jurisdiction in these cases if the court of another state has made a custody decree, unless the
other state court has lost jurisdiction over the matter under the UCCJA or refuses to exercise
its jurisdiction. See Cal. Civ. Code 5152(1)(d) (West 1983); Cal. Civ. Code 5163 (West
1983). Nevada had neither lost nor refused to exercise its jurisdiction over the child custody
issues presented herein. The California court acted appropriately, pursuant to Cal. Civ. Code
5152(1)(c)(ii) (West 1983), when it assumed emergency jurisdiction based on Mr. Adams'
child abuse claims. However, the Nevada judge likewise responded properly by personally
conferring with the California judge, pursuant to NRS 125A.070(4),
2
to resolve the
jurisdictional issue. Accordingly, it was determined that Nevada would retain jurisdiction.
[Headnote 4]
Therefore, NRS 125A.170 does not require Nevada's recognition of the January 27, 1989
California superior court order that suspended Cynthia Adams' visitation privileges under
either the PKPA or Nevada's UCCJA. Consequently, the California superior court order of
January 27, 1989, had no effect upon the preexisting custody order that issued a month earlier
from the Nevada district court on December 27, 1988. Accordingly, the district court's
reinstatement of the December 27, 1988 Nevada custody order, albeit a proper
precautionary measure, was actually redundant and unnecessary. We conclude that the
December 27, 1988 custody order has remained in effect in this jurisdiction since its
inception and continues to remain in effect. We therefore affirm the decision of the district
court.
__________

2
NRS 125A.070(4) provides:
Before determining whether to decline or retain jurisdiction the court may communicate with a court
of another state and exchange information pertinent to the assumption of jurisdiction by either court
with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum
will be available to the parties. (Emphasis added.)
____________
107 Nev. 797, 797 (1991) Burkhart v. State
ERIC A. BURKHART, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21224
November 5, 1991 820 P.2d 757
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
attempted second degree kidnapping, NRS 200.310(2), 193.330. First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Defendant was convicted of second degree kidnapping after jury trial in the district court.
Defendant appealed. The supreme court held that even assuming defendant grabbed hood of
six-year-old child's jacket in casino, evidence was insufficient to allow jury to infer that
defendant intended to detain child against his will so as to support second degree kidnapping
conviction.
Reversed.
Nielsen & Walker, Carson City, for Appellant.
and Eric S. Hoshizaki, Deputy, Carson City, for Respondent.
Kidnapping.
Even assuming that defendant's momentary seizure of hood of six-year-old child's jacket constituted a seizure within meaning of
kidnapping statute, evidence was insufficient to allow jury to infer that defendant intended to detain child against his will so as to
support conviction for kidnapping; undisputed evidence showed that defendant ceased his final contact with child as soon as child
indicated that he did not wish to go with defendant, all contacts took place in hallway of public facility, with an easy view of child's
parents, and defendant had no ready means available to take child away from casino. NRS 193.330, 200.310, subd. 2, 200.330.
OPINION
Per Curiam:
On March 22, 1990, appellant was convicted, pursuant to a jury verdict, of one count of
attempted second degree kidnapping. Appellant was sentenced to a term of four years in the
Nevada State Prison. This appeal followed.
Appellant was apprehended in the Ormsby House Casino after making three brief contacts
with the alleged victim, Mathew. During each of these contacts, Mathew was standing in
plain view in a casino hallway within a few feet of his parents.
view in a casino hallway within a few feet of his parents. Mathew showed no distress from
these contacts, and his parents, who were close enough to see and hear what was happening,
did not intervene except finally to notify security after the third contact. During the third
contact, it appears that appellant may have momentarily grabbed a jacket that Mathew was
wearing. Appellant, who rode a bicycle to the casino, made no attempt to flee and was
apprehended without resistance.
The jury was instructed that the crime of attempted kidnapping in the second degree
consists of the following elements: (1) that appellant willfully and without lawful authority
attempted to seize or inveigle another person; (2) that appellant did so with the intent to
detain said person against his will; (3) and that it occurred at or near the time and place
alleged . . . .
1
The instructions to the jury explained the state's theory of the case as follows:
That the said defendant did willfully and without lawful authority attempt to seize
and/or inveigle another person with the intent to detain him against his will, to-wit: the
said defendant did offer MATHEW SCOTT HALL, aged 6, money to go play a game
with him and/or did physically grab MATHEW SCOTT HALL and pull him toward an
exit, all of which was with the intent to detain MATHEW SCOTT HALL against his
will, all of which occurred near the V & T Coffee Shop in the Ormsby House, 600 S.
Carson Street, Carson City, Nevada.
In closing argument, however, the state conceded that it had not proven that appellant had
given money to Mathew in an attempt to inveigle him toward the game room and away from
his parents. Instead, the state argued that the act (the seizure) which constituted one of the
elements of attempted kidnapping was the grabbing of Mathew's jacket.
2
The state further
argued that the necessary intent was shown by the fact that appellant made three contacts with
Mathew.
__________

1
Second degree kidnapping is defined by NRS 200.310(2), which reads as follows:
Every person who willfully and without authority of law seizes, inveigles, takes, carries away or
kidnaps another person with the intent to keep the person secretly imprisoned within the state, or for the
purpose of conveying the person out of the state without authority of law, or in any manner held to
service or detained against his will, is guilty of kidnaping in the second degree.

2
The jury was instructed that the elements of an attempted crime were: (1) the intent to commit the crime;
(2) some act toward the completion of the crime; and (3) failure to complete the crime.
Appellant was convicted of one count of attempted second degree kidnapping. Appellant
has now served approximately two years in prison for momentarily grabbing a boy's jacket.
Counsel for the state informed this court at oral argument that appellant is unable to obtain
parole because he will not admit his guilt.
Appellant contends that the evidence presented at trial was insufficient to support the jury's
finding of guilt. Our review of the record on appeal convinces us that this contention has
merit.
The testimony in this case was not merely conflicting. Mathew's mother testified that
appellant momentarily grabbed the hood of Mathew's jacket. Mathew, however, testified that
he did not remember appellant grabbing his clothing. Obviously, any physical contact
between appellant and Mathew must have been trifling. The legislature did not intend that
every momentary physical contact should constitute a seizure for the purpose of defining a
felony carrying a possible penalty of up to seven and one-half years.
3
Viewing the trial
testimony in the light most favorable to the prosecution, and giving every reasonable
inference to the testimony of Mathew's mother, we cannot conclude that the contact involved
in this case amounted to a statutory seizure of Mathew's person.
Further, even assuming that appellant seized Mathew within the meaning of NRS
200.310(2), there was no testimony which would have allowed the jury to infer what
appellant intended to do with Mathew. The undisputed evidence showed that appellant ceased
his final contact with Mathew as soon as Mathew indicated that he did not wish to go with
appellant. Further, all of the contacts took place in the hallway of a public facility, within easy
view of Mathew's parents. The first two contacts were innocuous enough that Mathew's
parents made no effort to intervene. Even after Mathew's parents called security, appellant
calmly remained in the casino. Finally, it appears that appellant had no ready means available
to take Mathew away from the casino, unless it is to be argued that appellant intended to ride
away with Mathew on appellant's bicycle. No rational juror could have inferred from this
evidence that appellant seized Mathew with the specific intent to detain him against his will.
Any inference as to appellant's specific intent must have been based on unbridled speculation.
Accordingly, we reverse appellant's judgment of conviction.
__________

3
Second degree kidnapping carries a maximum penalty of fifteen years in the Nevada State Prison. NRS
200.330. Therefore, attempted second degree kidnapping would carry a maximum penalty of seven and one-half
years. NRS 193.330.
Eric Burkhart challenges the sufficiency of the State's evidence. In considering this
challenge, we are required to view the trial testimony in the light most favorable to the
prosecution. Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984). The majority,
however, pays lip service to this axiom. As a result, this court's opinion, though guised as
appellate review, effectively retries and acquits the appellant.
Burkhart was tried and found guilty by a jury of his peers. Admittedly, this is a close case,
but that only reinforces my belief that the majority, in reversing his conviction, unjustifiably
encroaches upon the role historically reserved to the trier of fact. For, as is true with many
close cases, this case turned on the weight and credibility assigned to conflicting
testimonyfunctions peculiarly within the province of the trier of fact. See Bolden v. State,
97 Nev. 71, 624 P.2d 20 (1981). This court simply is not authorized to weigh evidence. Nev.
Const. art. 6, 4; NRS 177.025.
Viewing the evidence as we must, it is clear that the jury couldand didreasonably
infer that Burkhart intended to detain the victim against his will. That is sufficient.
I would affirm the judgment of conviction entered by the district court.
____________
107 Nev. 800, 800 (1991) Harkness v. State
GLEN THEODORE HARKNESS, JR., Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 21252
November 5, 1991 820 P.2d 759
Appeal from a judgment of conviction upon jury verdict of first degree murder with use of
a deadly weapon. Eighth Judicial District Court, Clark County; John McGroarty, Judge.
Defendant was convicted in the district court of first degree murder with use of deadly
weapon, and he appealed. The supreme court held that prosecutor's comments during closing
asking whose fault it was if we don't know the facts in this case were improper references
to defendant's failure to testify, despite state's claim that prosecutor merely intended to
comment on evidence.
Morgan D. Harris, Public Defender, David T. Wall, Deputy Public Defender, and Stephen
J. Dahl, Deputy Public Defender, Clark County, for Appellant.
Tufteland, Deputy District Attorney, and Robert Langford, Deputy District Attorney, Clark
1. Criminal Law.
Defense counsel, who failed to contemporaneously object to first comment by prosecutor allegedly referring to defendant's failure
to testify, but who objected and moved for mistrial when prosecutor made second comment, preserved for appellate review the issue of
both comments.
2. Criminal Law.
Generally, failure to object to trial precludes appellate consideration.
3. Criminal Law.
Supreme court has power to address plain error or issues of constitutional dimension sua sponte.
4. Criminal Law.
Where defendant presents adequate record of reviewing serious constitutional issues, supreme court elects to address such claims
on their merits.
5. Criminal Law.
Prosecutor's comments during closing of defendant's murder trial for shooting death of his father, asking whose fault it was if we
don't know the facts in this case and what is he hiding, were improper references to defendant's failure to testify, in violation of the
fifth amendment, despite state's claim that prosecutor merely intended to comment on evidence. U.S.C.A.Const. amend. 5; Const. art.
1, 8.
6. Criminal Law.
Direct reference to defendant's decision not to testify is always violation of the fifth amendment. U.S.C.A.Const. amend. 5; Const.
art. 1, 8.
7. Criminal Law.
When prosecutor's reference to defendant's failure to testify is indirect, test for determining whether prosecutorial comment is
constitutionally impermissible reference to defendant's failure to testify is whether language used was manifestly intended to be or was
of such a character that jury would naturally and necessarily take it to be comment on failure to testify. U.S.C.A.Const. amend. 5;
Const. art. 1, 8.
8. Criminal Law.
Standard for determining whether remarks by prosecutor regarding defendant's failure to testify are prejudicial is whether error is
harmless beyond reasonable doubt. U.S.C.A.Const. amend. 5.
9. Criminal Law.
Remark by prosecutor in closing asking whose fault is it if we don't know the facts in this case? unconstitutionally suggested
that defendant, rather than state, had burden of proving or disproving crime, U.S.C.A.Const. amend. 5.
10. Criminal Law.
Prosecutor's violation of fifth amendment by twice referring to defendant's failure to testify was not harmless, in prosecution for
murder arising from shooting death of defendant's father, and instruction to draw no inferences from defendant's silence was
insufficient to cure remarks. U.S.C.A.Const. amend. 5.
OPINION
Per Curiam:
Appellant Glen Theodore Harkness, Jr., was charged with murder in the shooting death of
his father. At trial, it was adduced that appellant had been drinking and that he shot his father
following an argument during which his father apparently indicated appellant could no longer
live in his parents' home. After reporting the shooting to a neighbor, appellant drove off in his
father's pickup truck and was apprehended by the police about an hour later. Various
inculpatory statements made by appellant to the police were admitted at trial, including a tape
recorded statement made after appellant had been Mirandized. Also introduced were
inconsistent explanations of the shooting that appellant had given to his mother at various
times. Appellant did not testify at trial.
[Headnotes 1-4]
On rebuttal during closing argument, the prosecutor made the following remarks which are
the subject of this appeal:
If we have to speculate and guess about what really happened in this case, whose
fault is it if we don't know the facts in this case?
These remarks were not objected to by defense counsel.
1
Later, the prosecutor stated: Again,
we know so little
__________

1
As a general rule, failure to object at trial precludes appellate consideration. See Sipsas v. State, 102 Nev.
119, 716 P.2d 231 (1986). In this case, although counsel failed to object to the first comment
contemporaneously, counsel not only immediately objected to the second comment but also moved for a
mistrial. Cf. Clarke v. State, 89 Nev. 392, 513 P.2d 1224 (1973). We conclude that counsel's conduct in
objecting generally to the prosecutor's improper line of argument was adequate to preserve the issue for
appellate review of both comments. Moreover, we have the power to address plain error or issues of
constitutional dimension sua sponte. Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991). Where, as
here, appellant presents an adequate record for reviewing serious constitutional issues, we elect to address such
claims on their merits. Cf. Edwards v. State, 107 Nev. 150, 153 n.4, 808 P.2d 528, 530 (1991).
Again, we know so little about the case really in terms of what the defendant told us,
which naturally raises the logical question, what is he hiding?
Defense counsel objected and moved for a mistrial. The prosecutor explained that he was
referring to the inconsistent explanations of the shooting that had been admitted as evidence.
The district judge denied the motion for a mistrial.
The jury found appellant guilty of first degree murder with use of a deadly weapon. The
district judge sentenced appellant to two consecutive life terms with the possibility of parole.
[Headnote 5]
Appellant contends that the prosecutor's comments, quoted above, are blatant references to
appellant's failure to testify in violation of his fifth amendment rights. He contends that, even
if the prosecutor merely intended to comment on the evidence, the prosecutor's statements
nevertheless brought attention to the fact that appellant did not testify. Appellant further
contends that the error was prejudicial because, although he admitted responsibility for his
father's death, it was a close case as to whether the crime was first degree murder, second
degree murder, or voluntary manslaughter. We agree that the comments were both improper
and prejudicial, and therefore reverse and remand for a new trial.
[Headnotes 6-8]
The United States Constitution states that a defendant shall not be compelled in any
criminal case to be a witness against himself. U.S. Const. Amend. V; see also Nev. Const.
Art. 1, sec. 8. A direct reference to a defendant's decision not to testify is always a violation
of the fifth amendment. See Griffin v. California, 380 U.S. 609 (1965); Barron v. State, 105
Nev. 767, 783 P.2d 444 (1989). When a reference is indirect, the test for determining whether
prosecutorial comment constitutes a constitutionally impermissible reference to a defendant's
failure to testify is whether the language used was manifestly intended to be or was of such a
character that the jury would naturally and necessarily take it to be comment on the
defendant's failure to testify. United States v. Lyon, 397 F.2d 505, 509 (7th Cir.), cert.
denied sub nom., Lysczyk v. United States, 393 U.S. 846 (1968). See also Barron, 105 Nev.
at 779, 783 P.2d at 451-52. The standard for determining whether such remarks are
prejudicial is whether the error is harmless beyond a reasonable doubt. Chapman v.
California, 386 U.S. 18, 21-24 (1967).
We hold that the prosecutor's comments constituted improper reference to appellant's
failure to testify. Although the state contends that the prosecutor merely intended to comment
on the evidence, the test is whether the prosecutor manifestly intended it or whether the
jury would naturally and necessarily take it to be a comment on the accused's failure to
testify. Lyon, 397 F.2d at 509; see also Barron, 105 Nev. at 779, 783 P.2d at 452. Taken in
context, we believe the jury would have taken the prosecutor's comments to be references to
appellant's silence. Pointing out discrepancies or gaps in the evidence and suggesting that
appellant is responsible for them is something the jury would naturally and necessarily take
to be a comment on the accused's failure to testify. With regard to the second comment, the
prosecutor had finished talking about second degree murder and had just changed the topic to
first degree murder. He said he wanted to discuss some rather curious factors. The jury
would naturally and necessarily understand the second comment to mean that a curious
factor which caused the jury to know so little about the case was appellant's hiding of
the truth by exercising his right to remain silent. We therefore conclude that the comments
were constitutionally impermissible.
[Headnote 9]
Moreover, the question whose fault is it if we don't know the facts in this case? suggests
that the accused, rather than the state, has the burden of proving or disproving the crime. Such
a suggestion is clearly impermissible:
It is a fundamental principle of criminal law that the State has the burden of proving the
defendant guilty beyond a reasonable doubt . . . . The tactic of stating that the defendant
can produce certain evidence or testify on his or her own behalf is an attempt to shift
the burden of proof and is improper.
Barron, 105 Nev. at 778, 783 P.2d at 451. The first comment was therefore unconstitutional
for this reason as well.
[Headnote 10]
When judged by the applicable standard, the error cannot be deemed harmless beyond a
reasonable doubt. This appears to have been a close case, not with regard to culpability, but
with regard to the degree of culpability to attach to the crime. Although the trial transcript is
not that long, the jury spent three hours in deliberation before rendering a verdict. It is quite
probable that the jury took into account in its deliberating process the prosecutor's
suggestions that appellant was responsible for gaps in the evidence, had the burden of proving
or disproving the crime, and was hiding the truth. Although the jury was instructed to draw
no inferences from appellant's silence, this instruction was not a sufficient cure for the
prosecutor's unconstitutional remarks.
to draw no inferences from appellant's silence, this instruction was not a sufficient cure for
the prosecutor's unconstitutional remarks. We conclude that the errors were prejudicial.
Accordingly, we reverse appellant's judgment of conviction, and we remand this matter for a
new trial.
Steffen, J., concurring:
I have elected, reluctantly, to concur in the majority's reversal because it is in accordance
with current concepts of constitutional law announced by the United States Supreme Court
and dutifully followed by this court. I nevertheless question whether the law as it now exists
is sound, socially desirable, and warranted under the letter or spirit of the fifth amendment.
My reason for writing a concurrence, therefore, is simply to provide a cacophonous note to a
judicial choir that has sung on the same key for too long.
Harkness's conviction is being reversed because the prosecutor in effect commented on the
former's failure to fill in the blanks concerning factual details that were known only to
Harkness. Harkness elected not to testify at trial. Predictably, the majority observes that [a]
direct reference to a defendant's decision not to testify is always a violation of the fifth
amendment. Primary support for the unquestioned proposition was the case of Griffin v.
California, 380 U.S. 609 (1965).
Although I do not criticize my brethren in the majority for the result reached in their
opinion, I nevertheless believe that the opinion too readily accepts the proposition that
reference to a defendant's failure to testify is a violation of the fifth amendment. Although
adherence to United States Supreme Court opinions concerning the meaning and effect of
provisions within our federal constitution is both constitutionally mandated and desirable in
our federal system of government, I consider it both responsible and sufficiently deferential to
preeminent federal judicial authority for state courts to address areas of concern that may be
at odds with the pronouncements of the Supreme Court. Attesting to the fact that
constitutional law is not static are the numerous United States Supreme Court cases that have
overruled or modified prior pronouncements of that court regarding constitutional principles.
It is true that the Griffin court stated that comment on a defendant's refusal to testify is a
penalty imposed by courts for exercising a constitutional privilege. It cuts down on the
privilege by making its assertion costly. Griffin, 380 U.S. at 614. It is likewise true that the
court then concluded that the Fifth Amendment, in its direct application to the Federal
Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids
either comment by the prosecution on the accused's silence or instructions by the court that
such silence is evidence of guilt." Id. at 615.
accused's silence or instructions by the court that such silence is evidence of guilt. Id. at 615.
The Griffin ruling has been questioned and criticized by numerous judges and scholars. An
appropriate starting point for such criticism is the amendment itself. The pertinent language
of the fifth amendment specifies in unambiguous terms, nor shall [any person] be compelled
in any criminal case to be a witness against himself. Clear from the constitutional provision
at issue is the fact that nothing is said or inferred about foreclosing comment or inferences
from an accused's refusal to address facts that are peculiarly within his or her knowledge. It
seems strongly arguable to me that the purpose of the amendment was to prevent police and
prosecutors from extorting unreliable inculpatory admissions or confessions from suspects
through compulsory means, rather than to erect a barrier permitting suspects to obtain a
special immunity from inferences to be drawn naturally from their failure to explain the
explainable. In any event, it is not my purpose to explicate the numerous reasons why the
Griffin rationale should be seriously revisited. I merely desire to note my objection to a court
rulenot a constitutional mandatethat constitutes a truth confound and unwarranted haven
for the guilty, that is arguably against society's interest in bringing criminal offenders to
justice. It is sufficient for my purposes to quote from a few notables whose views may be
worthy of consideration.
The highly respected and sagacious former chief justice of the California Supreme Court,
Roger Traynor, observed:
The constitution is not at war with common sense. It does not compel the court to
instruct the jurors to ignore inferences their reason dictates. The prevailing view is that
such an instruction would be futile and confusing. The defendant, then, is normally
faced with the choice of testifying to avoid adverse inferences or of remaining silent
and suffering their consequences. The comments do not magnify these normal negative
consequences to the extent that they become a penalty prohibited by the Fourteenth
Amendment. Although the comments might encourage some defendants to testify to
avoid the inferences that may reasonably be drawn from their failure to do so . . . we are
of the opinion that this encouragement does not amount to the compulsion to testify
condemned by the Fifth Amendment. The comments merely guide the jury in doing
what it would normally do in any case. In some cases, comments might aid the
defendant by preventing the jury from giving too much weight to his refusal to take the
stand.
. . . .
The privilege against self-incrimination protects the defendant from assisting the
prosecution in building its case against him.
against him. It cannot protect him from the inferences that may reasonably be drawn
from his failure to rebut the prosecution's case to the best of his apparent ability. For the
court and counsel studiously to ignore those inferences or for the court to instruct that
no inference is to be drawn from the defendant's failure to testify can only result in
confusing the jury. The existence of the privilege is a matter of common knowledge,
and whatever use the defendant makes of it at his trial is also a fact know [sic] to the
jury. The objective of the court's instructions and counsel's arguments is to assist the
jury in reaching the correct decision on the basis of all of the evidence before it. The
Fifth Amendment imposes no pointless taboo on the pursuit of that objective.
People v. Modesto, 398 P.2d, 753, 763-64 (Cal. 1965) (footnote and citations omitted).
In the Griffin dissent written by Justice Stewart and joined in by Justice White, it was
stated that:
The California rule allowing comment by counsel and instruction by the judge on the
defendant's failure to take the stand is hardly an idiosyncratic aberration. The Model
Code of Evidence, and the Uniform Rules of Evidence both sanction the use of such
procedures. The practice has been endorsed by resolution of the American Bar
Association and the American Law Institute, and has the support of the weight of
scholarly opinion.
The formulation of procedural rules to govern the administration of criminal justice
in the various States is properly a matter of local concern. We are charged with no
general supervisory power over such matters; our only legitimate function is to prevent
violations of the Constitution's commands. California has honored the constitutional
command that no person shall be compelled in any criminal case to be a witness
against himself. The petitioner was not compelled to testify, and he did not do so. But
whenever in a jury trial a defendant exercises this constitutional right, the members of
the jury are bound to draw inferences from his silence. No constitution can prevent the
operation of the human mind. Without limiting instructions, the danger exists that the
inferences drawn by the jury may be unfairly broad. Some States have permitted this
danger to go unchecked, by forbidding any comment at all upon the defendant's failure
to take the witness stand. Other States have dealt with this danger in a variety of ways,
as the Court's opinion indicates. . . . But, so long as the constitutional command is
obeyed, such matters of state policy are not for this Court to decide.
Griffin, 380 U.S. at 622-23 (Stewart, J., dissenting).
Finally, two additional brief quotes represent but a sampling of the views critical of the
Griffin ruling. As one scholar indicated:
Griffin is a monument to our seemingly limitless capacity to doubt our own good faith
and to question the values that we have institutionalized in the criminal law. However
we resolve this underlying identity crisis, the symbol and symptom which is Griffin
should be rejected as without basis in the fifth amendment. Judicial honesty and the
integrity of the Constitution demand no less.
Ayer, The Fifth Amendment and the Inference of Guilt from Silence: Griffin v. California
after Fifteen Years, 78 Mich. L. Rev. 841, 870-71 (1980). Another respected scholar and
jurist, commenting on Griffin, opined that [t]he vice of the decision is forever fastening on
the fifty states and on the nation a solution, not derivable from the language or history of the
self-incrimination clause, that may not be best calculated to achieve its purpose. Friendly,
The Bill of Rights as a Code of Criminal Procedure, 53, Cal. L. Rev. 929, 940-41 (1965).
1

I agree with the majority in the instant case that [w]hen judged by the applicable
standard, the error begotten by that standard may not be viewed as harmless beyond a
reasonable doubt with respect to the degree of Harkness's culpability. I therefore dutifully
concur in the result reached by the majority. However, in my view, both the standard and the
error which it creates should be reconsidered by the United States Supreme Court for all the
reasons which, I am confident, that august tribunal already understands.
__________

1
This dissenting justice also previously observed:
[T]he fifth amendment privilege serves the cause of truth by rejecting as evidence the product of
coercion. It also promotes individual dignity, another cherished value in American society. But individual
dignity is not enhanced by the interpretation of the privilege as a right to be let alone that allows the
accused to thumb his proverbial nose at society as it attempts to deal effectively with crime. Such an
interpretation accords little dignity to the countless victims of crime and reduces the process of
establishing criminal accountability to a game that gives prime suspects time to hide before the hunt
begins. Furthermore, it distorts the plain language of the privilege and its only apparent purpose as shown
by the constitutional debatesthat of protecting accused persons against torture.
Steffen, Truth As Second Fiddle: Reevaluating The Place of Truth In The Adversarial Trial Ensemble, 4 Utah L.
Rev. 799, 826 (1988) (footnote omitted).
____________
107 Nev. 809, 809 (1991) Birges v. State
JOHN BIRGES, SR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22173
November 5, 1991 820 P.2d 764
Appeal from an order of the district court denying a petition for post-conviction relief.
Ninth Judicial District Court, Douglas County; Norman C. Robison, Judge.
Defendant filed petition for post-conviction relief. The district court denied petition, and
appeal was taken. The supreme court held that: (1) even if petition for post-conviction relief
was not timely, court should not have summarily denied it, but rather should have denied
petition for procedural default, and (2) court had jurisdiction to entertain petition for
post-conviction relief even if defendant was incarcerated out of state.
John Birges, Sr., In Proper Person, Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Scott W. Doyle, District Attorney,
Douglas County, for Respondent.
1. Criminal Law.
If petition for post-conviction relief is not filed in timely fashion, district court must still determine whether petitioner has shown
good cause for delay, and, even if no good cause has been shown, district court is not divested of jurisdiction to entertain petition and
should deny petition for procedural default rather than on its merits. NRS 177.315, subd. 3.
2. Criminal Law.
District court may consider petition for post-conviction relief filed by petitioner incarcerated out of state; overruling Dixon v.
Warden, 85 Nev. 703, 462 P.2d 753. NRS 177.315, subd. 3.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's petition for
post-conviction relief. On April 15, 1985, appellant was convicted, pursuant to a jury verdict,
of one count each of destruction of a building by explosives, unlawful possession of an
explosive device, unlawful transportation of explosives, use of an explosive to commit a
felony, bomb threat, burglary, and extortion. The district court sentenced appellant to a term
of life with the possibility of parole in the Nevada State Prison, plus numerous concurrent
terms. This court vacated appellant's judgment of conviction for extortion, and dismissed
appellant's direct appeal.
appellant's judgment of conviction for extortion, and dismissed appellant's direct appeal.
Birges v. State, Docket No. 16562 (Order Dismissing Appeal, September 3, 1987). On March
26, 1986, appellant, who was then and continues to be, incarcerated in a federal correctional
facility in Lompoc, California, filed a petition for post-conviction relief. On May 7, 1986, the
district court filed an order denying appellant's petition, having determined that it had no
jurisdiction to hear a petition for post-conviction relief while appellant was incarcerated
outside of the State of Nevada. See Dixon v. Warden, 85 Nev. 703, 462 P.2d 753 (1969). This
court dismissed the subsequent appeal because the notice of appeal was untimely. Birges v.
Director, Docket No. 17446 (Order Dismissing Appeal, August 21, 1986).
On March 18, 1991, appellant filed in the district court the instant petition of
post-conviction relief. On March 22, 1991, apparently sua sponte, the district court denied
appellant's petition. The district court determined that it lacked jurisdiction to entertain
appellant's petition because the petition was not filed within one year of this court's final
decision on appellant's direct appeal. This appeal followed.
[Headnote 1]
Our review of the record on appeal reveals that the district court erred in summarily
denying appellant's petition for post-conviction relief. NRS 177.315(3) provides as follows:
Unless there is good cause shown for delay, a proceeding under NRS 177.315 to
177.385, inclusive, must be filed within 1 year after entry of judgment of conviction or,
if an appeal has been taken from such judgment, within 1 year after the final decision
upon or pursuant to the appeal.
On its face, NRS 177.315(3) is not jurisdictional. If, as in the instant case, a petition for
post-conviction relief is filed beyond the time period specified in NRS 177.315(3), a district
court must determine whether the petitioner has shown good cause for delay. Even if the
district court determines that no good cause has been shown, however, the district court is not
divested of jurisdiction to entertain the petition. Instead, the district court is then statutorily
authorized to deny the petition for the procedural default rather than on the merits. We have
previously disapproved the practice of summarily dismissing petitions for procedural reasons.
The preferred practice is to require the state to make a motion to dismiss, and allow the
petitioner to respond. See Phelps v. Director, Prisons, 104 Nev. 656, 764 P.2d 1303 (1988).
[Headnote 2]
Because we are remanding this matter to the district court, it is also appropriate to
address the order of the district court entered on May 7, 19S6.
also appropriate to address the order of the district court entered on May 7, 1986. As noted
above, the district court relied on this court's opinion in Dixon in determining that it lacked
jurisdiction to entertain appellant's petition for post-conviction relief while appellant was
incarcerated out of state. We have determined that Dixon was wrongly decided. There is
nothing in the post-conviction statutes which would prohibit a district court from considering
a petition for post-conviction relief from a petitioner incarcerated out of state. Further, Dixon
would, if followed, work a terrible hardship on both the petitioner and the state by forcing an
evidentiary hearing on the petition to be held, in some instances, many years after the
judgment of conviction. Accordingly, we overrule our opinion in Dixon.
We feel constrained to add one additional comment to this opinion. In this case, as in far
too many cases, the clerk's office of this court was compelled to contact the clerk of the
district court and request that the record on appeal be supplemented with vital documents. We
are informed by our legal staff that this is a regular occurrence, not just in the Ninth Judicial
District, but throughout the state. We remind the district court clerks that petitions for
post-conviction relief are part of the same case as the original criminal trial. NRS 177.325. A
petition for post-conviction relief should therefore have the same case number in the district
court as the original criminal proceedings. Further, in proper person proceedings, the entire
record should be transmitted to this court regardless of any designation of the record on
appeal. NRAP 10(a)(1). Accordingly, when this court receives the record in a proper person
appeal from an order of the district court denying post-conviction relief, the record should be
complete and there should be no reason for this court to continually call the offices of the
various district court clerks and request that the record be supplemented. See also NRS
177.385(3).
In light of our discussion above, we vacate the order of the district court denying
appellant's petition for post-conviction relief, and we remand this matter to the district court
for further proceedings.
1

__________

1
Although appellant has not been granted permission to file documents in this matter in proper person, see
NRAP 46(b), we have received and considered appellant's proper person documents.
____________
107 Nev. 812, 812 (1991) Winiarz v. State
CONSUELO WINIARZ, aka CONSUELO WEST, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 21458
November 13, 1991 820 P.2d 1317
Appeal from a judgment of conviction upon a jury verdict of one count of first degree
murder with use of a deadly weapon. Eighth Judicial District Court, Clark County; Thomas
A. Foley, Judge.
Following reversal of murder conviction and life sentence, 104 Nev. 43, 752 P.2d 761,
defendant was again convicted in district court of murder. Defendant appealed. The supreme
court held that: (1) it was reversible error for jury to have access to transcript from
defendant's prior trial, and (2) it was reversible error to admit defendant's prior husband's
testimony that defendant once fired two shots at him.
George R. Carter and John G. Watkins, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Ulrich W. Smith, Deputy District
Attorney, for Respondent.
1. Criminal Law.
In retrial of murder case, it was reversible error for jury to have access to transcript from defendant's prior trial, complete with
verdict of guilty of first degree murder with use of deadly weapon and first jury's sentence of life imprisonment without possibility of
parole; defendant's interest in obtaining fair trial was significant, issue of innocence or guilt was close, and jury access to document
was highly prejudicial, as waivering jury could look to document for reassurance that another group of 12 jurors carefully considered
evidence presented and arrived at stated conclusion.
2. Criminal Law.
Proper standard to be applied in reviewing conviction in which jurors considered inadmissible evidence, in light of confrontation
clause and due process implications, is that new trial must be granted unless it appears, beyond reasonable doubt, that no prejudice has
resulted. U.S.C.A.Const. amends. 5, 14.
3. Criminal Law.
Determining whether reversible prejudice has resulted from jurors' considering inadmissible evidence is fact question to be
determined by trial court, and its determination will not be disturbed on appeal absent abuse of discretion; factors considered are
whether case is close, quantity and character of error, and gravity of crime charged.
4. Criminal Law.
In murder prosecution for shooting of defendant's husband, in which defendant claimed she thought gun was loaded with blanks, it
was reversible error to admit defendant's prior husband's bad act testimony that defendant had once fired two shots at him from six
feet away in broad daylight; there was really no evidence that any crime ever occurred, apart from testimony of prior husband, who
may have been influenced by personal animus toward defendant, and, with respect to incident involving prior husband, State did not
show by clear and convincing evidence that live bullets were used. NRS 48.045, subd. 2.
5. Criminal Law.
Before evidence of prior bad acts may be admitted, there must be clear and convincing evidence that such acts actually occurred.
NRS 48.045, subd. 2.
OPINION
Per Curiam:
Consuelo Winiarz, aka Consuelo West (Consuelo), was charged with murdering Jacob
Winiarz, on April 22, 1984, at the couple's home in Las Vegas. Although Consuelo does not
deny having shot Jacob, she claims that his death was an accident and that she believed the
gun was loaded with blanks.
1

Consuelo's case was initially tried on May 5, 1986. A jury found her guilty of first degree
murder with use of a deadly weapon, and sentenced her to life in prison without the
possibility of parole. Consuelo appealed to this court, which reversed and remanded on the
grounds that the opinion testimony of a state-appointed psychiatrist testifying on behalf of the
prosecution was extremely prejudicial and improper. See Winiarz v. State, 104 Nev. 43, 752
P.2d 761 (1988).
Consuelo was then tried a second time on October 24, 1989. While the jury in this second
trial was deliberating, it had occasion to view the clerk's notes from the first trial, containing
the original verdict of first degree murder with use of a deadly weapon and the sentence of
life in prison without the possibility of parole.
__________

1
Consuelo's story is briefly described as follows:
On April Fool's Day, 1984, Consuelo and Jacob Winiarz (to whom Consuelo was ostensibly married by
virtue of an invalid marriage ceremony) decided to play a trick on a friend who was visiting them at their home.
Consuelo and Jacob staged an argument, whereupon Consuelo pulled a gun on Jacob and fired at him, using
blanks. Jacob pretended to die, spilling ketchup over himself to suggest that he was bleeding.
On Easter Day, 1984, a different group of friends was at Consuelo and Jacob's home. Most of the people
present, including Consuelo and Jacob, had been either smoking marijuana or drinking. Consuelo and Jacob
appeared to argue and Consuelo shot at Jacob four times. When she allegedly first realized that there were real
bullets in the gun and that Jacob had been wounded, Consuelo called an ambulance and went for help. See
generally Winiarz v. State, 104 Nev. 43, 752 P.2d 761 (1988).
weapon and the sentence of life in prison without the possibility of parole. This document
was found in a box of exhibits erroneously placed in the jury room during the guilt phase of
the trial, where it was seen by some jurors and briefly discussed. The jury found Consuelo
guilty of first degree murder. Near the end of the deliberations during the penalty phase of the
trial, the foreman requested to see the erroneously admitted document the jurors had seen
during the guilt phase deliberations. This brought the matter to the district judge's attention,
and his initial reaction was that he must declare a mistrial. However, after polling members of
the jury, all of whom denied that their knowledge of the document entered into their
consideration of the case, the judge let the verdict stand.
The defense argues that submission of this document to the jury was reversible error. In
addition, the defense argues that admission of the uncorroborated testimony of Drew Spangler
(Spangler), a man to whom Consuelo was briefly married, was reversible error. We reverse
on both grounds.
[Headnotes 1, 2]
First, we hold that it was reversible error for the jury to have access to the transcript from
Consuelo's prior trial, complete with verdict and sentence. The potential for substantial
prejudice exists when a jury is permitted to consider evidence not admitted at trial. This court
has stated that the proper standard to be applied . . . in light of the confrontation clause and
due process implications . . . is that a new trial must be granted unless it appears, beyond a
reasonable doubt, that no prejudice has resulted. Barker v. State, 95 Nev. 309, 313, 594 P.2d
719, 721 (1979) (citing Chapman v. California, 386 U.S. 18 (1967)).
[Headnote 3]
The determination of whether reversible prejudice has resulted from juror's consideration
of inadmissible evidence in a given case is a fact question to be determined by the trial court,
and its determination will not be disturbed on appeal in the absence of a showing of an abuse
of discretion. Rowbottom v. State, 105 Nev. 472, 486, 779 P.2d 934, 942-43 (1989) (citing
Barker v. State, 95 Nev. 309, 313, 594 P.2d 719, 721-22 (1979)). Factors to be considered in
deciding whether to reverse are whether the issue of innocence or guilt is close, the quantity
and character of the error, and the gravity of the crime charged. Rowbottom, 105 Nev. at
486, 779 P.2d at 943 (quoting Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985)).
In the instant case, the criteria used to determine whether reversible error occurred weighs
in Consuelo's favor. First, because she was charged with first degree murder with use of a
deadly weapon, her interest in obtaining a fair trial is significant.
deadly weapon, her interest in obtaining a fair trial is significant. Second, the issue of
innocence or guilt is close. In Big Pond, this court reversed the holding where the error was
relatively minor,
2
but the issue of innocence or guilt was extremely close, resting almost
wholly upon the appellant's credibility. Big Pond, 101 Nev. at 2, 692 P.2d at 1289. In the
instant case, whether Consuelo was found to have committed first degree murder or whether
something more akin to an accident occurred is an issue which rests wholly upon Consuelo's
state of mind. The only evidence of her state of mind presented at trial was circumstantial.
3
Therefore, any degree of error is more likely to be prejudicial.
Finally, the quantity and character of the error in this case weigh in favor of reversal. Cases
in which the error involves the jury's discovery of information relating to a defendant's prior
trial or prior bad act are generally reversed for prejudice. See, e.g., Hui v. State, 103 Nev. 321,
323, 738 P.2d 892, 894 (1987) (reversible error where juror told the jury of a newspaper
article reciting verdict from first trial on the same charges); People v. Holloway, 790 P.2d
1327, 1333 (Cal. 1990) (juror's reading of article revealing defendant's prior conviction for
assaulting woman with hammer was extremely prejudicial); State v. Thacker, 602 P.2d 62
(Idaho 1979) (reversible error where jury had access to a police information on the same
defendant which was not the information from the case at bar).
In cases in which courts have decided not to reverse for errors involving juror access to
information concerning defendants' prior trials, a distinguishing element is that the verdict of
the first trial was not made known. See, e.g., State v. Hansen, 751 P.2d 951, 955-56 (Ariz.
1988) (jurors' discussion of prior trial was brief and inconsequential, and there was no
discussion of previous verdict).
In the instant case, the error consisted of the jury having access to the clerk's notes from
appellant's first trial on the instant charge. This document plainly relates not only the first
jury's verdictguilty of first degree murder with use of a deadly weaponbut also the first
jury's sentence of life imprisonment without the possibility of parole.
__________

2
The errors in Big Pond v. State, 101 Nev. 1, 2, 692 P.2d 1288, 1289 (1985), a rape case, consisted of (1)
one juror making a statement during deliberations to the effect that the absence of semen on the body of a rape
victim, as occurred in that case, was not uncommon and happened in over half of the cases, and (2) the bailiff
being discovered to have engaged in a conversation with a juror about the Miranda decision during a trial lunch
recess.

3
Consuelo did not testify at trial. The only evidence relating to her actual state of mind at the time of the
shooting was the testimony of other witnesses regarding how Consuelo had behaved and what she had said on
that day.
weaponbut also the first jury's sentence of life imprisonment without the possibility of
parole. Thus, a wavering jury could look to this document for reassurance that another group
of twelve jurors carefully considered the evidence presented and arrived at the stated
conclusion. Thus, admission of the document was highly prejudicial. In addition, in the
present case, the source of the inadmissible evidence was an official court document, rather
than a juror's hearsay recollection of a newspaper article. Consequently, a jury would perceive
the document as being more reliable and its prejudicial effect would be greater.
The State argues that, despite the prejudicial character of the evidence, the conviction need
not be reversed because the jury did not rely upon the evidence in reaching its verdict. In
particular, the State contends that the evidence was available only during the sentencing
portion of the trial. This conclusion is contradicted by Judge Foley's decision which states:
When the jury retired to deliberate on the guilt phase on Saturday at 9:00 A.M., the box
containing evidence from the first trial, that was neither marked for identification or
admitted in the second trial, was mistakenly placed in the jury deliberation room. This
mistake did not come to light until, as aforesaid, immediately prior to the rendition of
the verdict in the penalty phase.
(Emphasis added.) Thus, it appears that the inadmissible evidence was made available to the
jury during the guilt phase.
Furthermore, the State notes that upon questioning by the prosecution, all twelve jurors
stated that their decisions were not affected by the document. However, jurors' avowals that
they were not influenced by improperly admitted evidence are not dispositive on the issue of
whether they were in fact influenced. See Hui, 103 Nev. at 325, 738 P.2d at 894. In Hui,
jurors were questioned as to the effect that inadmissible evidence of the appellant's prior trial
on the same charges had had upon their decision. Eleven jurors said they had reached a
conclusion prior to disclosure of the information. Id. at 323, 738 P.2d at 893. The case was
reversed and remanded based upon one juror's response to the questioning which, for the
most part, indicated that the evidence had no influence upon his verdict. Id. at 324-25, 738
P.2d at 894.
The California Supreme Court has adopted a presumption of prejudice where jurors have
had access to inadmissible evidence.
4
People v. Pierce, 595 P.2d 91, 95 {Cal.
__________

4
In People v. Pierce, 595 P.2d 91, 95 (Cal. 1979), the court found that given this presumption, the State had
not met its burden by merely submitting: (1) an investigative report of an interview with the offending juror
People v. Pierce, 595 P.2d 91, 95 (Cal. 1979). See also Holloway, 790 P.2d at 1333-35. This
approach is justified by the practical difficulty encountered when attempting to determine
whether a jury has in fact been improperly influenced. In the instant case, although the jurors'
answers to the prosecution's inquiry concerning the improperly admitted document suggest
that they were not influenced by it, other facts suggest otherwise. All jurors denied having
relied upon the document, yet several admitted to having seen and briefly discussed it. The
fact that the foreman specifically requested a second look at the document before delivering
the final verdict strongly suggests that at least some members of the jury had knowledge of
the document and of its importance.
5
Juror No. 10's testimony that the jurors agreed amongst
themselves that the document had no relevance and that they would not consider it fails to
explain why they would request to see it a second time.
6

Furthermore, the State's affidavit makes it clear that the document may have influenced the
outcome of the trial. The affidavit states:
The jurors explained that the only reason they asked during the penalty hearing to see
the evidence box of the first trial was because they wanted to give the Defendant every
conceivable chance to get life with the possibility of parole, and since the first vote was
11-1 for life without the possibility of parole, . . . .
Thus, the opportunity existed for the improperly admitted document to change the outcome of
the trial.
A final crucial factor in the instant case is the fact that the error in question was easily
preventable. Although there may be practical difficulties associated with attempting to shield
a jury from all outside influences, presenting jury members with inadmissible official
documents is pure carelessness on the part of the court's staff.
__________
stating that the inadmissible evidence had not influenced his vote; and (2) the prosecutor's investigative report
stating the each of the other eleven jurors had signed declarations denying knowledge of the evidence.

5
If the document had been present in the jury room but none of the jurors had seen it, the error would have
been harmless. See Kelly v. State, 84 Nev. 332, 338, 440 P.2d 889, 893 (1968) (juror access to affidavit for
search warrant held harmless where each juror stated he had not seen or read the affidavit).

6
In addition, although not all jurors testified to having seen the document (defense counsel was unable to
question all jurors by telephone because their numbers were not released), it is well established that if even one
juror is improperly influenced, this is sufficient to constitute reversible error. See, e.g., Hui v. State, 103 Nev.
321, 738 P.2d 892 (1987).
staff. By reversing this case, we do not impose any new burdens upon the courts.
[Headnote 4]
In addition, we hold that admission of Spangler's testimony was error. Spangler was
married to Consuelo for a short period in 1983. In court, he testified that on one occasion,
Consuelo had pulled a gun on him and said she would either be a divorcee or a widow, which
prompted him to seek an annulment.
7
He also said that she had fired two shots at him from
six feet away in front of a friend's house in broad daylight. No police report was filed, and no
other evidence was offered to corroborate the suggestion that this event ever occurred. On the
stand, Spangler also testified that he had seen the bullets come out of the barrel, that they
came out fast, and that he could see the bullets when they were still inside the gun. In
addition, he testified that the reason he knew that the bullets in the gun were real and not
blanks was that he had seen them. Furthermore, Spangler testified that he thought both
Consuelo and the defense counsel were from outer space, although everyone else in the
courtroom was from earth.
The defense argues that the testimony of Mr. Spangler as to Consuelo's alleged prior bad
act is more prejudicial than probative, and therefore should have been excluded under NRS
48.045(2).
8
On the other hand, the State maintains that Spangler's testimony as evidence of
Consuelo's alleged prior bad act, falls within the NRS 48.045(2) exception for acts
demonstrating intent, knowledge, and absence of mistake.
[Headnote 5]
Before evidence of prior bad acts may be admitted, there must be clear and convincing
evidence that such acts actually occurred. See, e.g., Kimberly v. State, 104 Nev. 336, 757
P.2d 1326 (1988) (reversible error in sex crimes case to admit evidence of a prior similar
incident where the grand jury did not consider evidence of the earlier act sufficient to support
an indictment); Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 50S {19S5) {evidence
of prior act was clear and convincing where appellant admitted to the act, there were
eyewitnesses, and there was tangible evidence consisting of a dead body which proved
that the prior act actually occurred); Tucker v. State, S2 Nev. 127
__________

7
On cross-examination, the defense attempted to show that it was Consuelo who filed for the annulment.
Spangler denied this. However, when asked whether he knew the difference between a plaintiff and a defendant
in a case, he said he did. When asked which party he was in the annulment, he said he was the defendant.

8
NRS 48.045 (2) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order
to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
indictment); Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985) (evidence of prior
act was clear and convincing where appellant admitted to the act, there were eyewitnesses,
and there was tangible evidence consisting of a dead body which proved that the prior act
actually occurred); Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966) (reversible error to
permit the jury to consider evidence that a prior homicide had occurred at appellant's home
where a grand jury refused to indict appellant for the prior homicide). This is a fundamental
tenet of both Nevada and federal law.
9

In the instant case, it is unclear whether the alleged prior shooting incident actually
occurred. Drew Spangler testified that Consuelo fired two real bullets at him from a .32
caliber revolver from six feet away in broad daylight in front of a friend's house. Neither of
the bullets struck Mr. Spangler. In addition, he did not report the incident to the police. The
State did not produce any witnesses to the event. Although the State maintains that it is clear
that this incident happened because something must have prompted Spangler's filing for an
annulment, the evidence suggests equally strongly that it was Consuelo who initiated the
annulment action. Thus, in the instant case, there is really no evidence that any crime ever
occurred, apart from the testimony of a witness who may have been influenced by personal
animus towards Consuelo.
Furthermore, for Spangler's testimony to be probative with respect to the issue of whether
Jacob's death was a mistake, the State must also prove that Consuelo used live bullets in the
alleged prior shooting. If the prior shooting had in fact occurred and if Consuelo had used
blanks at that time, this alleged bad act would actually support Consuelo's version of what
happened the day Jacob was killed. Consequently, the fact that live bullets were used must
also be proven by clear and convincing evidence. The evidence presented was equally
unpersuasive on this point. Thus, we hold that admission of Spangler's testimony concerning
Consuelo's alleged prior bad act was error. Because we cannot say beyond a reasonable doubt
that this error was harmless, we conclude that it merits reversal.
__________

9
NRS 48.045(2) is analogous to Fed. R. Evid. 404(b). Cases interpreting Fed. R. Evid. 404(b) also require
clear and convincing evidence that the defendant committed the prior bad act. See generally United States v.
McCollum, 732 F.2d 1419, 1424-25 (9th Cir. 1984), cert. denied, 469 U.S. 920 (1984) (evidence of prior bad
acts may not be introduced to show intent if there is substantial dispute concerning whether the event charged as
a crime occurred at all); United States v. Jimenez, 613 F.2d 1373, 1376 (5th Cir. 1980) (government must
produce evidence of the prior act which would withstand directed verdict in a trial for that act).
Accordingly, we reverse and remand based upon the district court's error (1) permitting the
jury to view the clerk's notes from the prior trial and (2) permitting Spangler's uncorroborated
testimony concerning appellant's alleged prior bad act.
Mowbray, C. J., Rose, Steffen, and Young, JJ., and Huffaker, D. J.,
10
concur.
____________
107 Nev. 820, 820 (1991) Atwell v. Southwest Securities
DAVID ATWELL, dba RESORT PROPERTIES OF AMERICA, Appellant, v.
SOUTHWEST SECURITIES, a Nevada Limited Partnership; GERALD A. MASON,
General Partner; EILEEN McNAMEE, Trustee of the CAROL McNAMEE TRUST
AGREEMENT DATED 10/21/81, General Partner; THOMAS N. WIESNER,
General Partner, and Y.P. CHALADA CORPORATION, a Nevada Corporation,
Respondents.
No. 21485
November 13, 1991 820 P.2d 766
Appeal from an order granting summary judgment to respondent Southwest Securities on
the issue of whether Southwest owed appellant Atwell a broker's commission in conjunction
with Southwest's sale of the Marina Hotel and Casino in Las Vegas. Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
Real estate broker brought action against seller to recover commission based on theory of
quantum meruit. The district court granted seller's motion for summary judgement, and
broker appealed. The supreme court held that fact issues existed as to whether broker was
employed by seller and whether broker was procuring cause of sale, thus precluding summary
judgment.
William L. McGimsey, Las Vegas, for Appellant.
Netzorg, Raleigh & Hunt, Las Vegas, for Respondents.
1. Judgment.
Award of summary judgment is appropriate only if there is no genuine issue as to any material fact so that moving
party is entitled to judgment as matter of law.
__________

10
The Honorable Stephen L. Huffaker, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Charles E. Springer, Justice. Nev. Const. art. VI, 4.
genuine issue as to any material fact so that moving party is entitled to judgment as matter of law.
In considering appeal of award of summary judgment, all evidence favorable to appellant must be accepted as true.
3. Brokers.
To be entitled to commission from sale of real estate, broker must show that employment contract existed and that broker was
procuring cause of sale.
4. Judgment.
In action by real estate broker to recover commission based on theory of quantum meruit, evidence of unanswered letters by broker
and receipt to of price information created fact issue as to whether broker was employed by seller, thus precluding summary judgment.
5. Brokers.
Invalid exclusive listing agreement did not prevent broker from recovering commission based on theory of quantum meruit;
quantum meruit relief was based on oral agreement, not invalid written contract.
6. Brokers.
Oral agreement by seller to employ real estate broker would not be precluded by statute of frauds; nothing indicated contract could
not be performed within one year. NRS 111.220, subd. 1.
7. Brokers.
Whether broker's efforts constitute procuring cause of sale is question of fact.
8. Brokers.
In determining whether broker was procuring cause of sale, where broker introduces eventual purchaser, burden switches to seller
to show that broker subsequently abandoned efforts or that broker's efforts were ineffectual.
9. Brokers.
Where there was agreement by seller to pay broker commission, and broker was introducing party, broker must also be given
opportunity to consummate sale.
10. Brokers.
Brokers may be deemed to be procuring cause, even though transaction was actually closed by owner directly and for different
price than broker's asking price, and where there was no suggestion of fraud.
11. Judgment.
In action by real estate broker to recover commission based on theory of quantum meruit, evidence that broker had oral
employment contract with seller and contact with both seller and buyer concerning land in question created issue of fact as to whether
broker was procuring cause of sale, thus precluding summary judgment.
OPINION
Per Curiam:
Appellant David Atwell (Atwell), a real estate broker, alleges that as a result of his efforts,
respondent Southwest Securities (Southwest) contracted to sell the Marina Hotel and Casino
in Las Vegas, Nevada (Marina) to MGM Grand (MGM). Although Atwell had neither a
written employment contract nor an exclusive listing agreement with Southwest, he
claims he is entitled to a commission from the sale based on the theory of quantum
meruit.
Atwell had neither a written employment contract nor an exclusive listing agreement with
Southwest, he claims he is entitled to a commission from the sale based on the theory of
quantum meruit. Atwell's claim is based upon an alleged verbal agreement between himself
and Tom Wiesner, managing partner of Southwest, providing that Atwell would receive a one
and one-half percent commission if able to procure a buyer for the Marina.
Atwell maintains that he conceived of selling the Marina, in conjunction with the adjacent
Tropicana Golf Course, to MGM Grand as a package deal. To support his contention, he
offered two letters he wrote to Tom Wiesner of Southwest dated February 4, 1987 and June
14, 1988. The first letter states:
Pursuant to our last talk and agreement, I will very discreetly offer the Marina Hotel
along with the Golf Course package, with the understanding that if I'm successful in
procuring a qualified purchaser leading to a [sic] acceptable actual transaction I will
earn a minimum 1 1/2% fee at close through Escrow.
This offering will be very confidential, as we discussed and I will keep you apprised of
any new progress.
The second letter states that Atwell proposed the package deal to Benninger. Atwell also
offered a fact sheet provided to him by Southwest concerning the Marina Hotel. As additional
support for his claim, Atwell submitted three letters from himself to Fred Benninger,
President of the Tracinda Corporation, an affiliate of MGM Grand, stating that Atwell is the
authorized agent for the Tropicana Golf Course and suggesting that Benninger purchase both
the golf course and the Marina. These communications transpired in 1986 and 1987.
The Marina and the Tropicana Golf Course were eventually sold to MGM Grand as a
package deal in 1989. Atwell did not participate in the negotiations leading to the sale.
Atwell filed his complaint claiming a sales commission based on an alleged verbal
contract and on the theory of quantum meruit. Before answering the complaint, Southwest
filed a motion for summary judgment asserting that Atwell had no employment contract with
Southwest and that he was not the procuring cause of any sale. Wiesner's affidavit in support
of Southwest's motion for summary judgment denies that there was any written contract of
employment with Atwell. However, his affidavit does not deny that Southwest had an oral
agreement with Atwell, one of the claims upon which Atwell requested relief. In opposition,
Atwell reasserted his claim that he had an oral contract with Southwest, cited the
above-mentioned correspondence, and requested additional time to conduct discovery in the
case.
The district court granted Southwest's motion for summary judgment. The court held that
to recover a commission, Atwell would have to be found (1) to have had an employment
contract with Southwest, and (2) to have been the procuring cause of the sale. The district
court found that Atwell was not the procuring cause of the sale, based upon the facts before
the court.
[Headnotes 1, 2]
An award of summary judgment is appropriate only if there is no genuine issue as to any
material fact so that the moving party is entitled to a judgment as a matter of law. On appeal,
all evidence favorable to the appellant must be accepted as true. Morrow v. Barger, 103 Nev.
247, 250 737 P.2d 1153, 1154 (1987). Thus, all factual allegations under dispute must be
interpreted in favor of Atwell.
[Headnote 3]
To be entitled to a commission from the sale of real estate, a broker must show that; (1) an
employment contract existed, and (2) the broker was the procuring cause of the sale. Shell Oil
Co. v. Ed Hoppe Realty Inc., 91 Nev. 576, 580, 540 P.2d 107, 109-10 (1975). We find that
these requirements would be met if Atwell's allegations prove to be true.
[Headnote 4]
The requirement that an employment contract be found to exist is easily met. In Morrow,
103 Nev. at 252, 737 P.2d at 1156, this court held that [a] promise to pay the reasonable
value of services may be implied, and a real estate agent may recover under the theory of
quantum meruit, . . . . Implied employment contracts between sellers and brokers have been
found to exist with only moderate factual support. For example, in Shell Oil, 91 Nev. at
580-81, 540 P.2d at 109-10, this court held that an employment contract could be found to
exist where the only evidence of a contract consisted of letters sent by the broker to the seller
and price information received in return.
1
The court noted that the seller was aware of
common real estate practice and knew that the broker expected to be paid, and that the seller
continued to permit the broker to act on the seller's behalf, in reliance detrimental to his own
interest. Id. at 579, 540 P.2d at 108-09.
__________

1
The dissent in Shell Oil Co. v. Ed Hoppe Realty Inc., 91 Nev. 576, 581-82, 540 P.2d 107, 110 (1975)
(Batjer, J., concurring in part and dissenting in part), noted that there had been only one about five minute
conversation between the broker and a representative of the seller, whose recommendation would have to be
approved by higher authority, and that it was not contested that there had been any conversations or negotiations
between the broker and the seller apart from one unanswered letter.
The facts of the instant case, construed in favor of Atwell, are similar to those of Shell Oil.
Atwell sent several unanswered letters to Southwest and received price information in return.
Although there is no detrimental reliance evidenced by the known facts of this case, aside
from the time and effort Atwell may have spent that might otherwise have been spent on
other pursuits, it is possible that Atwell's efforts matched those of the broker in Shell Oil.
[Headnote 5]
Southwest cites Bangle v. Holland Realty Inv. Co., 80 Nev. 331, 393, P.2d 138 (1964), for
the proposition that quantum meruit relief is unavailable to Atwell in the instant case because
there was in fact an invalid exclusive listing agreement.
2
However, this is an inaccurate
reading of Bangle. The court in Bangle held that recovery of a commission was barred not by
the mere existence of an invalid listing agreement, but rather by the invalidity of such an
agreement when the agreement is the only basis for finding a contract. Id. at 333, 393 P.2d at
139. In Bangle, upon considering the record and the amount of relief granted by the district
court, this court found that in awarding damages, the district court had relied only upon the
theory that an exclusive listing agreement existed, without considering whether an oral
contract might exist. Id. Because the judgment was based solely upon an express agreement
which was found to be invalid, relief under the alternate theory of quantum meruit was
denied. Id. at 336, 393 P.2d at 141. In the instant case, Atwell does not claim that an
exclusive listing agreement existed but rather that there was an oral contract. Therefore, the
mere fact that Atwell had at one time endeavored unsuccessfully to procure an exclusive
listing agreement does not preclude relief under Bangle. Additionally, this was not an invalid
written contract as Southwest claims, but rather no written contract at all since both parties
did not execute it.
[Headnote 6]
Finally, Southwest maintains that any verbal contract between Southwest and Atwell
would be void for indefinite duration under Nevada's statute of frauds, which applies to
[e]very agreement that, by the terms, is not to be performed within 1 year from the making
thereof. NRS 111.220(1). If an oral agreement is found to exist in this case, there is nothing
to indicate it could not be performed within one year. Thus, any verbal agreement found to
exist in the instant case may not be precluded by the statute of frauds.
__________

2
In 1986, Atwell sent Wiesner a proposed exclusive listing agreement, which Wiesner never signed. Atwell
is not contending that he had an exclusive listing agreement with Southwest.
exist in the instant case may not be precluded by the statute of frauds.
[Headnote 7]
To be entitled to a broker's commission, Atwell must also show that he was the procuring
cause of the sale. Shell Oil, 91 Nev. at 580, 540 P.2d at 109-10. Whether a broker's efforts
constitute the procuring cause of a sale is a question of fact. Bartsas Realty, Inc. v.
Leverton, 82 Nev. 6, 9, 409 P.2d 627, 629 (1966) (procuring cause is impossible to measure
quantitatively). Thus, this issue is not generally appropriate for summary judgment.
Certain guidelines have been developed to aid in determining whether a broker's efforts are
sufficient to support a finding that the broker was the procuring cause. For example,
procuring cause requires conduct that is more than merely trifling. Id. at 9, 409 P.2d at 629
(quoting Williams v. Walker, 95 N.H. 231, 61 A.2d 522 (1948)). In situations not involving
exclusive listing agreements, merely introducing the eventual purchaser is insufficient.
Bartsas, 82 Nev. at 9, 409 P.2d at 629. However, [w]hether the broker first approaches, or
brings to the attention of the buyer that the property is for sale, or brings the buyer into the
picture, has considerable weight in determining whether the [broker] is the procuring cause of
the sale. Morrow, 103 Nev. at 254, 737 P.2d at 1157.
[Headnotes 8-10]
Where the broker does introduce the eventual purchaser, the burden switches to the seller
to show that the broker subsequently abandoned efforts or that the broker's efforts were
ineffectual. Bartsas, 82 Nev. at 9, 409 P.2d at 630. Where there was an agreement to pay a
commission and the broker was the introducing party, he must also be given the opportunity
to consummate the sale. Id. at 10, 409 P.2d at 630. A broker may be deemed to be the
procuring cause, even in cases in which the transaction was actually closed by the owner
directly and for a different price than the broker's asking price, and in cases in which there
was no suggestion of fraud. Humphrey v. Knobel, 78 Nev. 137, 142, 369 P.2d 872, 874
(1962).
Southwest cites the recent case of Binder v. Levy Realty Company, 106 Nev. 221, 222-24,
790 P.2d 497, 499-50 (1990), as authority for what constitutes procuring cause under the
current state of the law. In Binder, this court reversed the district court's conclusion that
evidence to support the procuring cause determination existed. However, the facts of Binder
are different from the facts in the instant case. In Binder, the broker never met or spoke with
the buyers before the sale, and the broker did nothing more than introduce the sellers to
the eventual buyers.
or spoke with the buyers before the sale, and the broker did nothing more than introduce the
sellers to the eventual buyers. Atwell personally spoke and wrote to the seller, communicated
with the buyer, and alleges that he provided more than a mere introduction.
[Headnote 11]
The parties are not asking this court to determine, based upon the allegations, whether
Atwell was the procuring cause of the sale. Rather, the issue is whether questions of fact exist
which would preclude summary judgment. It is clear from the evidence presented that Atwell
alleges an oral contract with Southwest and has had some contact with Southwest and MGM
Grand concerning the land in question. Because the issue of whether a broker was the
procuring cause is essentially a factual one, we hold that the district court's award of summary
judgment at such an early stage in the litigation was error. Cf. Sawyer v. Sugarless Shops, 106
Nev. 265, 792 P.2d 14 (1990) (granting summary judgment was improper when there were
conflicting affidavits, some doubt of operative facts, and no discovery had yet been
conducted).
The factual issues presented make the district court's award of summary judgment
improper. Accordingly, we reverse and remand.
Mowbray, C. J. dissenting:
It is tempting to join in the majority's decision. After all, reversing the district court's
award of summary judgment does not mean that Atwell's claim carries the day. Rather, the
majority opinion only ensures that Atwell shall have his day in court.
Nevertheless, I feel compelled to dissent. Though a trial court should exercise great care in
granting a motion for summary judgment, it should not postpone judgment for the defendant
(or plaintiff for that matter) where the ultimate legal result is clearly mandated. Even a
groundless suit costs money to defend, and the cost rises dramatically and senselessly if
allowed to proceed to trial. Moreover, farcical trials of this sort inexcusably consume great
amounts of scarce judicial resourcesresources ultimately paid for out of the taxpayers'
pockets.
Atwell alleges that a verbal contract existed between himself and respondent with respect
to the sale of the Marina Hotel. In support of this allegation, he offers several letters that he
wrote to the parties to the transaction. In response to these letters, however, Atwell received
only a fact sheet containing price information for the property in question. Respondent sent
similar fact sheets to hundreds of others who inquired about the possible sale of the Marina
Hotel.
of the Marina Hotel. If Atwell's scant evidence raises a genuine issue of material fact, then
these hundreds of others have equally plausible causes of action.
Though the pleadings and proof offered below must be reviewed in a light most favorable
to Atwell, Morrow v. Barger, 103 Nev. 247, 737 P.2d 1153 (1987), he is not entitled to
build a case on the gossamer threads of whimsy, speculation, and conjecture.' Collins v.
Union Fed. Savings & Loan, 99 Nev. 284, 302, 662 P.2d 610, 621 (1983) (quoting Hahn v.
Sargent, 523 F.2d 461, 467 (1st Cir. 1975), cert. denied, 425 U.S. 904 (1976)). Atwell's claim
is groundless. The district court appropriately ordered summary judgment for the respondent.
____________
107 Nev. 827, 827 (1991) Kelch v. Director
ROBERT MAXWELL KELCH, Appellant, v. DIRECTOR, NEVADA DEPARTMENT OF
PRISONS, GEORGE SUMNER, Respondent.
No. 21078
December 6, 1991 822 P.2d 1094
Appeal from an order denying a petition for writ of habeas corpus. Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Inmate filed petition for writ of habeas corpus, challenging decision of Board of Pardons
Commissioners revoking previously granted commutation of sentence. The district court
denied petition, and petitioner appealed. The supreme court, Springer, J., held that: (1) inmate
had protected liberty interest in commutation, but (2) inmate was accorded due process in
revocation of commutation.
Affirmed.
Young and Rose, JJ., dissented.
Stewart L. Bell, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert J. Gower, Deputy Attorney
General, John E. Simmons, Deputy Attorney General, Las Vegas, for Respondent.
Due process clause applies only if claimant, challenging revocation of sentence commutation, has been deprived (or is in jeopardy
of being deprived) of some type of liberty interest; thus, if liberty interest is not at stake, claimant cannot assert protections
of due process, but if government is attempting to infringe on protected liberty interest, then it may do so
only if it follows procedures mandated by due process clause.
at stake, claimant cannot assert protections of due process, but if government is attempting to infringe on protected liberty interest, then
it may do so only if it follows procedures mandated by due process clause. U.S.C.A.Const. amend. 5.
2. Constitutional Law; Pardon and Parole.
Order of Board of Pardons Commissioners granting inmate commutation of sentence created constitutionally protected liberty
interest in favor of inmate and, therefore, commutation could be revoked only under limitations imposed by due process clause, where
commutation had been actually received by inmate by entry of order. U.S.C.A.Const. amend. 14.
3. Constitutional Law; Pardon and Parole.
Board of Pardons Commissioners accorded inmate due process when it revoked previously granted commutation of sentence,
where inmate was given notice and opportunity to appear at revocation hearing, was represented by counsel at hearing, and was given
opportunity to present evidence, witnesses, and documents on his behalf, and many members of Board stated on record their reasons
for revoking original commutation. U.S.C.A.Const. amend. 14.
OPINION
In this lawsuit, appellant Robert Kelch (Kelch) contests the revocation of a commutation
that had previously been granted to him by the Nevada Board of Pardons Commissioner (the
Board or Pardons Board). In 1985, Kelch pleaded guilty to a charge of second degree
murder and was sentenced to twenty years in the Nevada State Prison. After Kelch had served
two years of this sentence, he applied for a pardon/commutation from the Pardons Board. On
May 12, 1987, the Board met and considered Kelch's petition. At this hearing, Kelch and his
attorney testified before the Board; in addition, the Board received a letter from Judge Beko
(the sentencing judge) stating that he neither supported nor objected to Kelch's petition. The
district attorney from Nye County (the prosecuting attorney) had notice of the meeting, but
did not appear or file an objection. Following the hearing, the Board issued an order
commuting Kelch's sentence to five years.
Upon learning of the commutation, the Nye County District Attorney filed a motion for
reconsideration. In response to the district attorney's motion, the Pardons Board placed the
matter on its November 23, 1987, agenda. At this hearing, Kelch and his attorney presented
testimony in support of the Board's original decision. Conversely, the Nye County District
Attorney presented testimony in favor of rescinding the commutation and reinstating the
original sentence. Following the hearing, the Board voted 6-1 to rescind the commutation
and reinstate the original sentence.
Board voted 6-1 to rescind the commutation and reinstate the original sentence.
Kelch then filed for a writ of habeas corpus in the United States District Court for the
District of Nevada. On December 13, 1988, the federal court denied this petition, holding that
Kelch had failed to exhaust his remedies in the Nevada courts. Thus, on March 9, 1989,
Kelch filed an application for writ of habeas corpus in this court. This court denied the writ
and instructed Kelch that he could not bring the matter directly before this court, but rather
must file for a writ in the district court.
On March 31, 1989, Kelch filed for a writ of habeas corpus from the Fifth Judicial District
Court. The parties then stipulated to have the matter heard in the Eighth Judicial District
Court. On May 22, 1989, the matter came before Judge Thompson, and after listening to oral
argument, he denied the writ. Kelch now appeals.
[Headnote 1]
Kelch's sole contention in this appeal is that the Board, in rescinding its original
commutation order, violated his due process rights. To address this argument, it is necessary
to review several principles of due process jurisprudence. To begin, the due process clause
only applies where the claimant has been deprived (or is in jeopardy of being deprived) of
some type of liberty interest. Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
1
Thus, if a
liberty interest is not at stake, the claimant cannot assert the protections of due process. Id. If,
however, the government is attempting to infringe on a protected liberty interest, then it (the
government) may do so only if it follows the procedures mandated by the due process clause.
Id. Consequently, in analyzing Kelch's due process claim, two questions must be asked: (1)
Did the Board deprive Kelch of a protected liberty interest? (2) If so, did Kelch receive all the
process that he was due? We will now address each of these issues in turn.
[Headnote 2]
The initial question that must be addressed is whether the Board's action deprived Kelch of
a protected liberty interest. In Morrissey v. Brewer, 408 U.S. at 481, the Court stated that
whether any procedural protections are due depends on the extent to which an individual
will be condemned to suffer grievous loss. In Morrissey, the Court observed that the liberty
of a parolee "includes many of the core values of unqualified liberty and its termination
inflicts a grievous loss on the parolee and often on others." Id. at 4S2.
__________

1
Of course, the requirements of due process also apply where the government is attempting to deprive a
person of a life interest or a property interest. Because Kelch's interest in his commutation appears to be, if
anything, a liberty interest, however, we have not included a discussion of property or life interests in our
analysis.
parolee includes many of the core values of unqualified liberty and its termination inflicts a
grievous loss on the parolee and often on others. Id. at 482. Accordingly, the Court held that
before parole could be revoked, the parolee must receive some orderly process, however
informal. Id.
The procedural protections of due process are not invoked, however, every time an
individual suffers a grievous loss. In Jago v. Van Curen, 454 U.S. 14, 17 (1981), the parole
board informed the prisoner that he was to be granted parole, but then rescinded its decision
prior to release of the prisoner. The Court conceded that this action by the parole board had
caused a grievous loss in the mind of the prisoner. Nevertheless, the Court held that no
protected liberty interest had been created, since the prisoner had never received the benefit
promised, i.e., the prisoner was never actually paroled. Id. Because no liberty interest had
been created, the Court reasoned, the parole board was not required to conform to the dictates
of due process in reversing its original decision. Id.
In Ellard v. Alabama Board of Pardons and Paroles, 824 F.2d 937 (11th Cir. 1987), cert.
denied, 485 U.S. 981 (1987), the court expanded on the principles discussed in Jago. In
Ellard, the Alabama Parole Board granted parole to the prisoner; the prisoner was then
released directly into the custody of the State of Georgia to serve a life sentence there. Id. at
940. Following a burst of public outrage at the parole decision, however, the Alabama
Parole Board revoked its original ruling and rescinded its grant of parole. Id. at 940-41. The
question before the Eleventh Circuit was whether, by originally granting parole, the Alabama
Board had given prisoner a protected liberty interest.
The court in Ellard held that a such an interest had been created. In so holding, the court
observed that: The states, of course, may elect not to confer rights . . . that are not inherent in
the Constitution. But once a state does choose to confer such a right, the prisoners's interest
had real substance' and can be revoked only under the limitations imposed by the due process
clause. Id. at 943. The court then distinguished Jago, by pointing out that there, the benefit
conferred by the parole board, i.e., parole, had never actually been received by the prisoner.
Id. at 943 n.4. By contrast, in Ellard, the prisoner had actually received parole, though not
outright release. Id. Because the benefit received by Ellard thus had real substance, the
court reasoned, it could be revoked only under the limitations imposed by due process.
2
Applying these principles to the facts of this case, we conclude that the Pardons Board's
original order created a protected liberty interest in favor of Kelch.
__________

2
The Ellard court then remanded the case to the district court in order to conduct factual findings as to
whether Alabama had accorded the prisoner the process that he was due before his parole was rescinded. Id. at
949.
Applying these principles to the facts of this case, we conclude that the Pardons Board's
original order created a protected liberty interest in favor of Kelch. Here, it is clear the Kelch
actually received the benefit conferred by the Pardons Board. Following the May 12, 1987,
hearing, the Board issued an Order Commuting Sentence, which stated that [i]t is hereby
ordered that effective this date applicant's sentence be commuted from 20 years to five years
of imprisonment . . . .(Emphasis ours.) Thus, by virtue of this order, Kelch received his
commutation on May 12, 1987, and his case is therefore distinguishable from Jago, where the
prisoner did not receive parole, but was simply informed that he would soon receive parole.
For this reason, Kelch obtained an interest with real substance at the time the Pardons
Board issued its order, and the deprivation of this interest caused Kelch to suffer a grievous
loss. Accordingly, Kelch's commutation could be revoked only under the limitations
imposed by the due process clause.
[Headnote 3]
Having concluded that Kelch received a protected liberty interest from the Pardons Board,
we now turn to the question of whether the Board deprived him of that interest in a manner
consistent with the due process clause. The United States Supreme Court has often dealt with
the issue of what procedures are required by due process, and has noted that [d]ue process is
flexible and calls for such procedural protections as the particular situation demands.
Morrissey v. Brewer, 408 U.S. at 481. In addition, the Court has explained that the most
fundamental requirement of due process is the opportunity to be heard at a meaningful time
and in a meaningful manner. Matthews v. Eldridge, 424 U.S. 319, 333 (1976).
In McLaughlin v. Bronson, 537 A.2d 1004 (Conn. 1988), the court discussed the
requirements of due process in a situation quite similar to this one. In McLaughlin, the
Connecticut Board of Pardons commuted the sentence of the prisoner (McLaughlin) from
twenty years to time served. Id. at 1005. Following the hearing, however, the Board learned
that McLaughlin's wife had made several material misrepresentations during her testimony
before the board. Id. For this reason, the board reheard the matter and rescinded the
commutation. Id. at 1005-6.
The prisoner then brought an action for habeas corpus, and alleged, among other things,
that the Board of Pardons had violated his due process rights. The Connecticut Supreme
Court disagreed. The court began its analysis by assuming that the prisoner had received a
protected liberty interest when he obtained the commutation. Id. at 1008 n.3. The court then
held that because the Board of Pardons had afforded McLaughlin the following protections:
notice, hearing, representation by counsel, the right to confront and cross-examine
witnesses, a neutral and detached hearing body and a written statement articulating the
reasons for revocation," Mclaughlin had received all the process that he was due under
the fourteenth amendment. Id.
In the instant case it is clear that the Board accorded Kelch due process when it revoked
his commutation.
sel, the right to confront and cross-examine witnesses, a neutral and detached hearing body
and a written statement articulating the reasons for revocation, Mclaughlin had received all
the process that he was due under the fourteenth amendment. Id.
In the instant case it is clear that the Board accorded Kelch due process when it revoked
his commutation. Kelch was given notice and an opportunity to appear at the revocation
hearing. In addition, Kelch was represented by counsel at this hearing, and was given the
opportunity to present evidence, witnesses, and documents on his own behalf. Further, it
appears from the record that Kelch was able to contradict and confront those witnesses that
testified against him at the November hearing. Moreover, even though the Board's order did
not appear in the form of a written decision, many of the Board members stated, on the
record, their reasons for revoking the original commutation. Because the Board gave Kelch
all these procedural protections before revoking his commutation, we hold that Kelch was
given the opportunity to be heard at a meaningful time and in a meaningful manner, and thus
received due process.
Accordingly, the order of the district court is affirmed.
Mowbray, C.J., concurs.
I concur in the majority opinion but feel compelled to respond to the gratuitous remarks of
the dissenting justices regarding the participation of the members of this court on the Board
of Pardons (Board).
Nevada is a unique state. As far as I have been able to ascertain, Nevada's mechanism for
administering clemency is also unique among the states. During the 1863 Nevada
Constitutional Convention, the proposed powers of pardon and reprieve were initially vested
in the Governor. The available discussion on the proposal is limited and reads as follows:
Mr. Brosnan said he though the section conferred altogether too unlimited and
dangerous power upon the Governor. He would like to have the opinion of someone
who was conversant with this matter.
Mr. Johnson said the section conferred upon the Governor not only great power, but
also great responsibility. He thought it would be better to divide both, and suggested
that the pardoning power might be rested in the Governor, Chief Justice and Attorney
General. In order to devise some proper arrangement, differing possibly, from the
systems in vogue in the other States, he moved that the Committee recommend the
reference of the section to a Special Committee. As to the particular matter referred to
by Mr.
particular matter referred to by Mr. Brosnan, of the power of the Executive to impose
restrictions and limitations, the object was to enable the Executive to require pardoned
criminals to leave the Stateby which means the commonwealth often got rid of
dangerous characters.
A. Marsh, S. Clemens & A. Bowman, Reports of the 1863 Constitutional Convention of the
Territory of Nevada 135 (W. Miller, E. Bushnell 1972).
Unfortunately, we apparently do not have additional history concerning the deliberations
of the committee assigned to the task of formulating recommendations for the constitutional
provision conferring the powers of pardon and reprieve. History reveals, however, that the
initial proposal vesting all such power in the Governor was changed to include the Governor,
the Justices of the Supreme Court and the Attorney General acting by majority rule, with the
Governor necessarily voting with the majority. Thus, the current composition and decisional
powers of the Board have existed as part of our original constitution since 1864 when Nevada
was admitted to the Union.
There are current moves under way to amend Nevada's constitution in order to change its
pristine clemency mechanism by removing the Justices of the Supreme Court from the Board.
I have heard two reasons advanced in favor of the proposition, neither of which, in my
opinion, has validity. The first reason may be treated summarily. It is argued that the
members of this court are too busy to perform their functions as members of the Board. The
Board meets twice yearly. The total time necessary to fully prepare for and conduct the
hearings is three days. I suggest that the business of the Board is sufficiently important to
warrant an allowance of time necessary to fulfill the purposes of the Board. Moreover,
necessity suggests that an intermediate appellate court will become a reality in the not distant
future, thus providing more time for the members of this court to perform their duties on the
Board. In any event, the powers of pardon and commutation have been viewed with a high
degree of concern from the time of Nevada's birth as a state. Criminal accountability with its
associated penalties is achieved at substantial social cost. We should view with equal
importance the prospect of granting relief from lawfully imposed sentences, given the
potential cost to society of an undiscerning use of the Board's powers.
The dissenting justices address the second, and ostensibly more plausible reason for
relieving the members of this court from service on the Board by stating that [t]his case
illustrates why Supreme Court Justices should not sit on the Board of Pardons. We grant early
release with one hand and snatch it away with the other. A conflict of interest is inherent
when this court is asked to review its own decisions while sitting in another capacity."
asked to review its own decisions while sitting in another capacity. I disagree with every
aspect of the quoted conclusions for the following reasons:
1. There is no conflict, inherent or otherwise, in having the members of this court sit on
the Board. Although I will address the instant case separately, it is worth emphasizing that, as
far as research reveals, the case before us is unique in the annals of the Board. It must also be
emphasized that the Supreme Court is not a sentencing body. Despite the fact that under
circumstances both historically and comparatively rare, the Court must fulfill its
constitutional mandate to modify sentences that are constitutionally infirm, in no case does
the court have any sort of vested interest in maintaining convictions and sentences
determined and imposed by juries and other judges. The reference by the dissent to the
members of this court granting relief with one hand (sitting as members of the Board) and
snatching it away with the other (as justices sitting on appellate review) is in no sense
supportive of the proposition that we do so in a position of conflict. This court routinely
processes petitions for rehearing in which the court is invited to reconsider the propriety of its
own rulings. I have yet to hear a justice contend that a conflict arises by virtue of the fact that
we are faced with the prospect on rehearing of declaring ourselves in error in our initial
dispositions. As Supreme Court Justices our sworn duty is to respect and comply with the law
and conduct ourselves so as to promote public confidence in the integrity and impartiality of
the judiciary. We are able to do so as members of the Board with even less potential
conflict than we do as members of an appellate court often petitioned to reconsider the
propriety of its own rulings. Usually, as Board members we simply determine whether the
passage of time and circumstances developing after an applicant's original conviction and
sentence warrant an exercise of the Board's powers of clemency.
2. The dissent focuses on the instant case specifically when it declares that [a] conflict of
interest is inherent when this court is asked to review its own decisions while sitting in
another capacity. The assertion is seriously flawed. First, this court was not asked to review
its own decision, for we do not sit as a court when functioning as constitutional members of
the Board. What we are asked to do as a court in this unique case, is to review the decision of
the constitutionally comprised Board on which we sit as individual members. I must assume
that if any members of this court, including the dissenting justices, viewed themselves in a
position of conflict in undertaking such a review, they would have disqualified themselves as
required by Canon 3 C of the Supreme Court Rules. Indeed, the mere fact that the dissenting
justices have concluded that the Board's action was without jurisdiction is cogent
evidence that the process is unimpaired by some sort of misguided allegiance to Board
action that would impact the capacity of this court to exercise an independent and honest
judgment on the merits.
have concluded that the Board's action was without jurisdiction is cogent evidence that the
process is unimpaired by some sort of misguided allegiance to Board action that would
impact the capacity of this court to exercise an independent and honest judgment on the
merits. Moreover, this court has previously validated the propriety of members of this court
acting in one capacity concerning the same matter that ultimately comes before the same
justices sitting in a different capacity as part of the reviewing court. Thus, in both Goldman v.
Bryan, 104 Nev. 644, 764 P.2d 1296 (1988), and In re Petition to Recall Dunleavy, 104 Nev.
784, 769 P.2d 1271 (1988), members of this court who acted in an administrative capacity to
reach or make decisions that later became directly implicated in litigation reviewed or
otherwise acted upon by the same justices as part of this court, were not disqualified by an
form of inherent conflict posed by acting in two different capacities concerning the matters
that were litigated. To the contrary, we held that [e]ven where the court's prior judicial and
administrative actions may support an inference that the justices in question possess legal
opinions at odds with appellant's views of the court's constitutional authority, that fact does
not constitute a legally cognizable ground for disqualification. Goldman, 104 Nev. at 654,
764 P.2d at 1302. An honest, honorably motivated judge is equally able to adjudicate
impartially whether rehearing his or her own prior rulings or the rulings or decisions reached
in part by the same judge authoritatively acting in another capacity. Justices of this court are
not infrequently required to do just that as part of their sworn duties of office.
Because supreme court justices are elected in Nevada, it would undoubtedly be of political
advantage for justices to be able to avoid what may on occasion be viewed by the public as
unwise or unpopular decisions on the part of the Board. I suggest, however, that members of
this court should be willing to assume that risk in order to preserve a system that I submit has
served the State of Nevada well for over one and a quarter centuries. Paraphrasing a
platitudinous metaphor, the wheel, as yet unbroken, is hardly in need of replacement. And
who knows, the new product may be inferior to the old.
Young, J., with whom Rose, J., agrees, dissenting:
Respectfully, I dissent. I conclude that the Nevada Board of Pardons Commissioners
(Board) did not have jurisdiction to rescind the commutation of a sentence. Once the Board
issued an order with an effective date, Kelch had a protected liberty interest in release and the
Board lost jurisdiction to rescind the commutation.
The majority concedes that Kelch's protected liberty interest vested on the effective date of
the order. Once a liberty interest vests, the Board may only rescind the order of release in very
limited circumstances.
[T]he parolee is entitled to retain his liberty as long as he substantially abides by the
conditions of his parole. The first step in a revocation decision thus involves a wholly
retrospective factual question: whether the parolee has in fact acted in violation of one
or more conditions of his parole. Only if it is determined that the parolee did violate the
conditions does the second question arise: should the parolee be recommitted to prison
or should other steps be taken to protect society and improve chances of rehabilitation?
Morrissey v. Brewer, 408 U.S. 471, 479-80 (1972). I submit that in this case the Board was
divested of jurisdiction to rescind Kelch's commuted sentence where he did not violate the
conditions of release. Absent a violation, the Board lacked jurisdiction to recommit Kelch.
The Board may not revoke a release simply because additional information comes to light
after the grant of commutation. Ellard v. Alabama Bd. of Pardons and Paroles, 824 F.2d 937,
946 (11th Cir.), cert. denied, 485 U.S. 981 (1987). If this were not so, Kelch would
conceivably be subject to revocation of his release indefinitely, through no fault of his own.
The majority contends that Kelch's interest was protected by adequate procedural due
process. Affording him the opportunity to be heard at a meaningful time and in a meaningful
manner did not cure the fact that the Board did not have indefinite jurisdiction absent a
violation of release conditions; the wording of the order effective this date undermines the
rationale of the majority.
The majority cites McLaughlin v. Bronson, 537 A.2d 1004 (Conn. 1988) as a case similar
to Kelch's, wherein the Connecticut Board of Pardons revoked the prisoner's commutation
after rehearing. However, the Connecticut Supreme Court stated, [W]e hold that the board
may revoke an absolute commutation, prior to actual release of the prisoner, if the factual
basis upon which the commutation was granted proves to be erroneous, and the justification
for granting the commutation is thereby abrogated. Id. at 1006. McLaughlin can be
distinguished from the case at hand; there is no assertion here that Kelch made
misrepresentations to the Board. This is a case of additional information coming to light after
the Board commuted his sentence, which is a very different situation.
This case illustrates why Supreme Court Justices should not sit on the Board of Pardons.
We grant early release with one hand and snatch it away with the other.
and snatch it away with the other. A conflict of interest is inherent when this court is asked to
review its own decisions while sitting in another capacity.
For these reasons, I conclude that the Board lost jurisdiction to revoke the early release
once the order became effective, absent a violation of conditions by the parolee or
misrepresentation to the Board. To retain jurisdiction violates the parolee's substantive due
process rights. I cannot join the majority in finding that the Board retained the right to revoke
release indefinitely upon discovery of additional information.
____________
107 Nev. 837, 837 (1991) Scott v. Scott
ROBIN PHILLIPS SCOTT, Appellant and Cross-Respondent, v. BRIAN H. SCOTT,
Respondent and Cross-Appellant.
No. 21511
December 6, 1991 822 P.2d 654
Appeal and cross-appeal from order modifying child support award made pursuant to
divorce decree. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Divorced wife filed petition to modify former husband's child support obligation. The
district court modified divorce decree and subsequent orders, and appeals were taken. The
supreme court held that: (1) husband's responsibility for support of present wife and children,
his payment of other necessary benefits for children of prior marriage, and relative income of
both parents were grounds for deviating from statutory child support formula; (2) overtime
should be included as income, for purposes of formula, if it is substantial and can be
determined accurately; (3) stipulation was of no effect to extent it was inconsistent with
statutory directive that parent's duty to support handicapped child continue until child is no
longer handicapped or becomes self-supporting; and (4) order reducing support obligation by
one-half when one child reached majority was inconsistent with statutory formula.
Hamilton & Lynch, Reno, for Appellant and Cross-Respondent.
Silverman & Decaria, Reno, for Respondent and Cross-Appellant.
107 Nev. 837, 838 (1991) Scott v. Scott
Child support award can be modified in accordance with statutory formula, regardless of finding of changed circumstances. NRS
125B.080.
2. Divorce.
Husband's responsibility for support of present wife and two children, his payment (through employee benefits) of other necessary
expenses for children of prior marriage, and relative income of husband and former wife provided grounds for deviation from statutory
child support formula. NRS 125B.070, subd. 2, 125B.080, subd. 9(e), (k), (1).
Overtime should be considered as income in statutory child support formula if it is substantial and can be determined accurately.
NRS 125B.070, subd. 1.
4. Divorce.
Divorced wife's application for modification of former husband's child support obligation would be remanded to trial court to
reconsider its finding that husband's overtime should not be considered in determining his gross monthly income for purposes of
statutory child support formula, where husband's average gross annual income from all sources, including overtime, was significantly
greater than trial court's calculation excluding overtime. NRS 125B.070, subd. 1.
5. Divorce.
Stipulation regarding divorced husband's support of handicapped child and order based thereon were of no effect and did not bind
parties to extent they were inconsistent with statutory directive that parent's duty to support handicapped child continues until child is
no longer handicapped or becomes self-supporting. NRS 125B.070, subd. 2, 125B.110.
6. Divorce.
Trial court's direction that divorced husband's child support obligation be reduced by one half when one of his two children
reached majority was contrary to statutory formula, which required husband to pay eighteen percent of his gross income for
one child, and twenty-five percent for two children. NRS 125B.070, subd. 2.
OPINION
Per Curiam:
Robin Phillips Scott (Robin) and Brian H. Scott (Brian) were married on July 17, 1971,
and divorced on April 29, 1975. They had two children during the marriage; Angela Marie
Scott was three years old at the time of the divorce, and Jessica Anne Scott was one year old.
Angela has cerebral palsy and is mildly mentally retarded.
On April 2, 1975, the parties entered into a settlement agreement regarding the care,
custody, control, and support of their children. Pursuant to this agreement, the district court
ordered that Robin have custody of the children during their minority, that Brian have
visitation rights, and that Brian pay Robin $75.00 per child per month for support and
maintenance.
107 Nev. 837, 839 (1991) Scott v. Scott
child per month for support and maintenance. Later, the parties stipulated to an increase in
support to $125.00 per child per month.
On August 4, 1979, Brian remarried. He and his present wife have two children. On
August 22, 1988, Robin filed a motion for modification of the settlement agreement
requesting, among other things, an increase in child support in accordance with NRS
125B.070, and that Brian's support of Angela be continued beyond the age of majority until
she is no longer handicapped or until she becomes self-supporting, in accordance with NRS
125B.110.
On May 26, 1989, the parties entered into a stipulation providing that child support be
increased from $125.00 per child per month to $175.00 per child per month and that support
for Angela continue until she completes her high school education through the Washoe
County School District Special Education Program. The stipulation states that Angela, a
freshman at the Community Based Program at Sparks High School, may continue in the
program for a minimum of four years or until she reaches age twenty-two, completes the
program, or is no longer eligible for special education through Washoe County School
District. On May 30, 1989, the court entered an order modifying the divorce decree and
subsequent orders, based on the parties' stipulation.
On January 10, 1990, less than one year later, Robin again moved to modify the decree.
She requested an increase in child support in accordance with NRS 125B.070, stressing that
support should constitute twenty-five percent of Brian's gross monthly income and should
include all overtime pay. Robin also moved that Brian's support payments for Angela
continue beyond the age of majority, until she is no longer handicapped or becomes
self-supporting, regardless of her attendance in the Washoe County School District program.
On July 19, 1990, the district court entered an order modifying the divorce decree and
subsequent orders. The court found that Robin's loss of a roommate constituted a substantial
change of circumstances, warranting modification of the 1989 child support agreement. With
regard to the amount of support as calculated under NRS 125B.080, the court found that: (1)
Brian has a current hourly wage of $18.31 per hour or $732.40 per week for an annual gross
salary of $38,084.80; (2) his gross monthly salary is $3,173.73; and (3) twenty-five percent of
his salary is $793.43. However, the court found that the amount of overtime was
unpredictable.
1
The court stated that in light of the fact that Brian had remarried and was
responsible for two additional children, it would allow a deviation from the twenty-five
percent {$793.43) per month amount.
__________

1
Brian stated that his ability to earn overtime was continually decreasing, due to his employer's use of
subcontractors.
107 Nev. 837, 840 (1991) Scott v. Scott
children, it would allow a deviation from the twenty-five percent ($793.43) per month
amount. The court ordered Brian to pay $600.00 per month in child support, regardless of any
overtime. The court also ordered that when Jessica reaches eighteen years of age, child
support will be reduced to $300.00 per month. The court concluded that Angela's support
would continue until such time that she completes her high school education through the
Washoe County School District Special Education Program, and that Brian and Robin shall
use their best efforts to see that Angela Marie Scott is self-supporting either through federal
assistance programs, employment or marriage.
1. Substantial Change of Circumstances.
[Headnote 1]
Brian argues that the district court erred in finding a substantial change of circumstances
justifying modification of the child support award. A child support award can be modified in
accordance with the statutory formula, regardless of a finding of changed circumstances.
Parkinson v. Parkinson, 106 Nev. 481, 483 n.1, 796 P.2d 229, 231 n.1. (1990) (citing NRS
125B.080(1)(b) and NRS 125B.080(3)). Therefore, in accordance with Parkinson and the
applicable statute, we now review the district court's conclusion.
2. Deviation from NRS 125B.070.
[Headnote 2]
Robin argues that the district court failed to comply with statutory and case law
requirements because it deviated from NRS 125B.070 in determining child support. NRS
125B.080 requires the court to apply the formula set forth in NRS 125B.070(2), unless it
specifically finds facts justifying a deviation. Such facts include the responsibility of the
parents for the support of others, any other necessary expenses for the benefit of the child, and
the relative income of both parents. See NRS 125B.080(9)(e), (k), and (l). We conclude that
the court properly found, pursuant to NRS 125B.080, that Brian's responsibility for the
support of his present wife and two children, his payment (through employee benefits) of
other necessary expenses for Angela and Jessica, and the relative income of both parents
constitute grounds for deviation from NRS 125B.070.
The case at bar is distinguishable from Hoover v. Hoover, 106 Nev. 388, 793 P.2d 1329
(1990), in which this court upheld the district court's award of child support to the wife in
accordance with the NRS 125B.070 formula, even though the husband had two children from
a second marriage.
107 Nev. 837, 841 (1991) Scott v. Scott
two children from a second marriage. In Hoover, we noted that, although the district court has
discretionary power to make equitable adjustments of the formula (NRS 125B.080), it may
not devise a new formula based on the number of children born to the paying parent at the
time the receiving parent seeks application of the statute. In the case a bar, the district court's
deviation from the statutory formula is not based only on the children from the second
marriage, nor does it consist of a formula, as prohibited in Hoover. Rather, the decision is
based on facts specifically stated in the order and substantiated by the record.
3. Overtime wages as part of gross income.
[Headnotes 3, 4]
Robin argues that although Brian has consistently earned overtime in his job over the three
years preceding the filing of the motion, the court erred in finding that Brian earned
$38,084.80 per year and that his overtime is unpredictable.
NRS 125B.070(1) provides that gross monthly income means the total amount of income
from any source of a wage-earning employee. We conclude that overtime should be included
as income, if it is substantial and can be determined accurately. If overtime is included in
Brian's income, his gross annual income was approximately $45,212.00 in 1987, $41,678.00
in 1988, and $47,930.00 in 1989. Thus, his average gross annual income from all sources is
approximately $44,940.00, which is significantly greater than the district court's calculation.
We remand this case to the district court to reconsider its finding that Brian's overtime should
not be considered in determining gross monthly income.
4. Child support to a handicapped child.
[Headnote 5]
Robin argues that the district court erred in ordering that child support to Angela continue
only until she completes high school, because support should continue until Angela is
self-supporting. NRS 125B.110 directs that the parent's duty to support a handicapped child
continues until the child is no longer handicapped or becomes self-supporting. This statute
indicates a strong public policy that cannot be vitiated by stipulation or agreement of the
parties. The district court's order setting the termination time of Angela's support was based
on a stipulation of the parties. To the extent the stipulation and order were inconsistent with
NRS 125B.110, they are of no effect and do not bind the parties. Therefore, we remand this
issue to the district court for findings consistent with NRS 125B.110.
107 Nev. 837, 842 (1991) Scott v. Scott
5. Reducing child support by one-half.
[Headnote 6]
Robin argues that the district court erred in directing that the support obligation be reduced
by one-half, from $600.00 to $300.00, upon Jessica's reaching majority. The statutory formula
set forth in NRS 125B.070(2) requires that the party providing child support pay eighteen
percent of his or her gross income for one child, and twenty-five percent for two children.
Therefore, we conclude that Angela should receive eighteen percent of Brian's gross monthly
income, rather than one-half of twenty-five percent (or, twelve and one-half percent).
6. Conclusion.
We remand this case back to the district court for the following determinations: (1) the
amount of overtime to be included in Brian's gross income, pursuant to NRS 125B.070; (2)
the amount of continued support Angela is to receive pursuant to NRS 125B.110; and (3) a
calculation of eighteen percent of Brian's gross income, pursuant to NRS 125B.070, to
support Angela upon Jessica's reaching majority.
____________
107 Nev. 842, 842 (1991) Sheriff v. Walsh
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. OLLIE WALSH and MATHEW
ARCHULETTA, Respondents.
No. 21675
December 6, 1991 822 P.2d 109
Appeal from an order of the district court granting respondent's pretrial petitions for writs
of habeas corpus. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendants were indicted for second time on drug charges after first indictment was
dismissed for failure to give defendants notice of right to testify at grand jury proceedings.
Defendants petitioned for writs of habeas corpus. The district court dismissed second
indictment. Sheriff appealed. The supreme court held that: (1) prosecution could properly
seek reindictment; (2) it was not improper to represent matter to same grand jury; and (3)
prosecutor's indirect reference to defendant's failure to testify was harmless error.
Rex Bell, District Attorney, Clark County, for Appellant.
Vincent Savarese, Las Vegas; Goodman, Stein & Chesnoff, Las Vegas, for Respondents.
Prosecution's failure to appeal from dismissal of indictment does not bar commencement of new proceedings for same offense
unless subsequent prosecution is untimely or original dismissal was based on prosecutor's willful failure to comply with important
procedural rules. NRS 34.590.
Prosecution properly sought reindictment for same drug offenses, even though prosecution did not appeal dismissal of original
indictment, where subsequent prosecution was not untimely and first indictment was dismissed for failure to give accused notice of
right to testify at grand jury proceedings rather than because of prosecutor's failure to comply with important procedural rules. NRS
34.590.
Second indictment for same drug offenses, following dismissal of original indictment for failure to give respondents notice of their
right to testify at grand jury proceeding, was properly presented second time to same grand jury.
4. Criminal Law.
Direct reference to accused's decision not to testify, at any stage of proceeding, mandates reversal. U.S.C.A.Const. amend. 5.
5. Criminal Law.
Standard for determining whether indirect reference to accused's failure to testify is prejudicial is whether error is harmless beyond
reasonable doubt. U.S.C.A.Const. amend. 5.
6. Grand Jury.
Prosecutor's comment that accused had been given opportunity to explain away charges was improper indirect reference to
accused's decision not to testify, particularly where grand jury was not specifically admonished that exercise of right to remain silent
could not be held against accused. U.S.C.A.Const. amend. 5.
Prosecution's erroneous indirect reference to accused decision not to testify at grand jury proceeding was harmless error where
substantial competent evidence was presented to grand jury to establish probable cause to indict. U.S.C.A.Const. amend. 5.
OPINION
Per Curiam:
On December 14, 1989, a grand jury was convened to determine whether respondents
Ollie Walsh and Mathew Archuletta should be indicted on drug charges. The grand jury
returned a true bill and on December 15, 1989, an indictment was filed charging respondents
with one count of conspiracy to possess or sell a controlled substance and one count of
trafficking in a controlled substance.
In Sheriff v. Marcum, 105 Nev. 824, 783 P.2d 1389 (1989), this court held that an accused
must be given reasonable notice of the right to testify in front of a grand jury before that
person may be indicted. Relying on Marcum, respondents sought, and the district court
granted, petitions for writs of habeas corpus. The district court dismissed the indictment,
believing that the indictment was defective based on our decision in Marcum.
The matter was presented anew to the same grand jury on February 22, 1990. Respondents
had been given notice of their right to testify at the grand jury proceedings. At the
proceedings, an undercover narcotics officer alleged that on December 4, 1989, respondent
Walsh negotiated and conducted a sale of approximately 490 grams of cocaine, while
respondent Archuletta aided and abetted the sale by driving the vehicle from which the sale
was made. Respondent Archuletta testified that he had no knowledge of the bag of cocaine
which Walsh allegedly sold. The grand jury returned a true bill, and on February 23, 1990, an
indictment was again filed charging respondents with one count of conspiracy to possess or
sell a controlled substance and one count of trafficking in a controlled substance.
Thereafter, this court decided in Gier v. District Court, 106 Nev., 208, 789 P.2d 1245
(1990), that the rule from Marcum applies only prospectively, not retroactively.
Respondents once again filed petitions for writs of habeas corpus. Following a hearing, the
district court granted the petitions and dismissed the second indictment on August 1, 1990.
The district court found that it was erroneous to resubmit the matter to the same grand jury
which had issued the original indictment. It further found that the district attorney had
improperly commented on respondent Walsh's failure to testify and that the grand jury had
not been adequately admonished. This timely appeal followed. For the reasons set forth
below, we reverse.
Preliminarily, we note that dismissal of the original indictment was not required. Because
the district court dismissed the first indictment after our decision in Marcum but prior to our
decision in Gier, it understandably believed that dismissal was mandated by Marcum. As
Gier made clear, however, dismissal in cases such as this one was not required because the
first grand jury proceeding preceded Marcum. Gier, 106 Nev. at 213, 789 P.2d at 1248.
[Headnotes 1, 2]
Although the prosecution did not appeal the first dismissal, such failure does not bar the
prosecution from commencing new proceedings for the same offense unless the subsequent
prosecution was untimely or the original dismissal was based upon the prosecutor's willful
failure to comply with important procedural rules.
rules. McGee v. Sheriff, 86 Nev. 421, 470 P.2d 132 (1970); see also NRS 34.590. In this
case, the subsequent prosecution was not untimely, nor was the prosecutor's alleged failure to
comply with important procedural rules during the first grand jury proceedings willful. Thus,
it was proper in this case for the prosecution to seek reindictment for the same offenses.
[Headnote 3]
Moreover, it was not improper to present the matter anew to the same grand jury. We need
not be concerned with whether the grand jury was prejudiced because the evidence can be
reviewed to determine its legal sufficiency. Such a review would necessarily reveal any
prejudice which resulted in an indictment based on insufficient evidence. See Bonnenfant v.
State, 86 Nev. 393, 469 P.2d 401 (1970).
Because the original grand jury was properly reconvened with notice to the accused, the
district court erroneously dismissed the second indictment on this ground.
[Headnotes 4, 5]
The district court also granted the petitions on the ground that the district attorney
improperly commented on respondent Walsh's failure to testify without adequately
admonishing the grand jury. A direct reference to an accused's decision not to testify, at any
stage of the proceeding, violates the fifth amendment and mandates reversal. Barron v. State,
105 Nev. 767, 778, 783 P.2d 444, 451 (1989). An indirect reference is constitutionally
impermissible if the language used was manifestly intended to be or was of such a character
that the jury would naturally and necessarily take it to be a comment on the accused's
failure to testify. Id. at 779, 783 P.2d at 451-52. The standard for determining whether an
impermissible remark is prejudicial is whether the error is harmless beyond a reasonable
doubt. Chapman v. California, 386 U.S. 18, 21-24 (1967).
[Headnote 6]
In this case, the grand jurors naturally and necessarily took the prosecutor's comment to
be an indirect reference to the accused's decision not to testify. The prosecutor stated:
Neither Mr. Walsh or Mr. Savarese are present although in accordance with the
Supreme Court decision [Marcum] we did provide them notice for them to be here this
morning in order to explain away the charges if they so choose. They are not here.
Being given the opportunity to explain away the charges is tantamount to being given the
opportunity to exercise the right to testify. Thus, the prosecutor's indirect reference to the
failure to exercise that opportunity constituted improper commentary on Walsh's failure
to testify, in violation of the fifth amendment. Cf. Harkness v. State, 107 Nev. S00
exercise that opportunity constituted improper commentary on Walsh's failure to testify, in
violation of the fifth amendment. Cf. Harkness v. State, 107 Nev. 800, 820 P.2d 759 (1991).
Furthermore, the grand jury was not adequately admonished. In Sheriff v. Keeney, 106
Nev. 213, 219, 791 P.2d 55, 59 (1990), we concluded that a prosecutor's allegedly improper
remarks did not influence the grand jury to indict based on the accused's failure to testify. In
Keeney, the prosecutor specifically advised the grand jury following the allegedly improper
remark that the accused's silence could not be held against him and that he was not required
to prove anything. Id. By contrast, in this case, following the improper comment, the grand
jury was not specifically admonished that exercise of the right to remain silent cannot be held
against the accused. We conclude that the general admonishment, which was given to the
grand jury at the time it was originally convened over six months earlier, was insufficient to
cure the error.
[Headnote 7]
Nevertheless, we conclude that the error was harmless beyond a reasonable doubt.
Substantial competent evidence was presented to the grand jury establishing probable cause
to indict. Absent the error, we believe that the grand jury would still have reindicted
respondents. Thus, respondents were not prejudiced.
Accordingly, we reverse the order of the district court granting respondents' petitions for
writs of habeas corpus, and we remand this matter to the district court for further proceedings
____________
107 Nev. 846, 846 (1991) Chambers v. Sanderson
TARA NICOLE CHAMBERS, BY ARLENE COCHRAN, Guardian Ad Litem,
Appellant/Cross-Respondent, v. JAY WILLIAM SANDERSON,
Respondent/Cross-Appellant.
No. 21854
December 6, 1991 822 P.2d 657
Appeal from an order of the district court awarding child support and cross-appeal from an
order granting summary judgment to respondent on the issue of paternity. Eighth Judicial
Child, through her guardian ad litem, filed complaint to establish paternity and compel
support. The district court granted partial summary judgment to child on issue of paternity
and awarded $500 per month child support, and appeals were taken.
awarded $500 per month child support, and appeals were taken. The supreme court held that:
(1) relative income of parents was appropriate factor to consider in awarding support; (2) it
was not necessary that predicate act of sexual intercourse occur within state for there to be
subject matter jurisdiction; (3) putative father failed to create genuine issue of material fact
regarding paternity; and (4) mother did not assume full responsibility for raising child by her
failure to comply with putative father's wish to abort child or give it up for adoption.
Kevin M. Kelly, Las Vegas, for Appellant/Cross-Respondent.
Kevin C. Sewell, Las Vegas, for Respondent/Cross-Appellant.
1. Children Out-of-Wedlock.
District court was not precluded from adjusting child support award in paternity action beyond $500 per month statutory
maximum based on some factor other than increased need of child; among factors which district court had to consider in adjusting
amount of both parents. NRS 125B.070, subd. 2, 125B.080, subd. 9(1).
It is not necessary that predicate act of sexual intercourse occur within state for district court to have subject matter jurisdiction
over paternity action; statutory grant of personal jurisdiction in paternity actions in which predicate act of sexual intercourse occurs
within state in no way limits district court's subject matter jurisdiction. NRS 126.091, subd. 2.
3. Judgment.
It is not mandatory that all evidence accompanying motion for summary judgment be in affidavit form. NRCP 56(e).
Summary judgment could be granted on issue of paternity based upon certified blood tests attached to motion for partial summary
judgment, though tests were not in affidavit form. NRCP 56(e).
Putative father failed to create genuine issue of material fact regarding paternity, as would preclude entry of partial summary
judgment on that issue, in failing to present any opposing affidavit or to deny parentage, in response to results of two blood tests
submitted by mother, each of which showed there was more than 98 percent chance of putative father's paternity, and mother's affidavit
that she engaged in sexual relations with putative father during probable period of child's conception. NRCP 56(e).
Mother did not assume full responsibility for raising child by refusing to comply with putative father's wish to abort child or to
give it up for adoption.
Putative father's financial situation was to be taken into account in calculating putative father's child support obligation in
paternity action. NRS 125B.020, subd. 1, 125B.070, subd. 2.
OPINION
Per Curiam:
On July 21, 1989, appellant Tara Nicole Chambers, through her guardian ad litem, filed a
complaint to establish paternity and compel support. In her complaint, Tara named Jay
William Sanderson as her presumed father. On August 28, 1990, the district court entered an
order awarding partial summary judgement to Tara and declaring Sanderson to be Tara's
father. The district court further granted Tara's motion for discovery, ordered Sanderson to
execute an IRS release for his income tax returns of the previous three years, and awarded
$500.00 per month temporary child support. When Sanderson refused to sign the IRS release,
Tara filed a motion for sanctions and an application for an order to show cause why
Sanderson's counsel should not be held in contempt. The court subsequently issued the
requested order to show cause. Following the hearing on the order to show cause, the district
court reversed its previous order regarding release of the income tax returns and made the
$500.00 per month child support award permanent. This appeal and cross-appeal followed.
[Headnote 1]
On appeal, Tara contends that the district court erred in rescinding its order directing
disclosure of Sanderson's income tax returns, and by setting a permanent child support award
without conducting a hearing on the matter. The district court acted from the assumption that
a child support award can be adjusted beyond the $500 per month maximum provided in NRS
125B.070(2) only on a showing that the needs of a particular child are not met by that
amount. The district court concluded that because Sanderson's financial condition was not
relevant to Tara's needs, there was no reason to allow discovery regarding that condition.
This issue has been resolved in a recent opinion in which we held that there was and is
nothing in the applicable statutes to preclude the district court from awarding an additional
amount of child support based on some factor other that increased need. Herz v.
Gabler-Herz, 107 Nev. 117, 118, 808 P.2d 1, 1 (1991). Although one of the relevant statutes
referred to above has been amended since the divorce decree in Herz, the change is
immaterial to the present issue.
1
Among the factors which the district court must consider
"when adjusting
__________

1
In 1989, NRS 125B.080 was amended to include a new subsection 2, and all of the subsequent subsections
were renumbered. We note that despite this change, the reference to NRS 125B.080(5) in NRS 125B.070(2)(e)
was not altered to reflect the new numbering of the subsections. This appears to have been an oversight on the
part of the legislature.
court must consider when adjusting the amount of support of a child upon specific findings
of fact is [t]he relative income of both parents. NRS 125B.080(9)(1). Thus, in denying
Tara discovery and a hearing on the basis on which it did, the district court erred.
[Headnote 2]
In his cross-appeal, Sanderson presents several contentions, all of which are without merit.
Sanderson begins by contending that the district court lacked subject matter jurisdiction.
Specifically, Sanderson claims that NRS 126.091 limits jurisdiction of the district court to
those paternity actions where the predicate act of sexual intercourse occurred in Nevada.
Sanderson bases his claim on NRS 126.091(2), which provides:
A person who has sexual intercourse in this state thereby submits to the jurisdiction of
the courts of this state as to an action brought under this chapter with respect to a child
who may have been conceived by that act of intercourse. In addition to any other
method provided by law, personal jurisdiction may be acquired by personal service of
summons outside this state or by registered mail with proof of actual receipt.
The plain meaning of the statute is unmistakable. NRS 126.091(2) deals with personal
jurisdiction and in no way limits the subject matter jurisdiction of the district court.
[Headnotes 3, 4]
Sanderson contends that the district court erred by granting Tara summary judgment on the
issue of paternity. Specifically, Sanderson claims that the district court erred in relying on the
two blood tests attached to Tara's motion for partial summary judgment, because although the
tests were certified, they were not in affidavit form. See NRCP 56(e). Again, the plain
meaning of the rule is beyond debate. NRCP 56(e) establishes the form for affidavits
supporting or opposing a motion for summary judgment. Contrary to Sanderson's implication,
however, NRCP 56(e) does not mandate that all evidence accompanying a motion for
summary judgment be in affidavit form.
[Headnote 5]
Sanderson contends that the district court erred in granting summary judgment because a
genuine issue of material fact remained. Specifically, Sanderson claims that because the
results of the blood tests do not state affirmatively that he is the father, they demonstrate a
genuine issue as to the ultimate fact of the case.
NRCP 56(e) provides in pertinent part:
When a motion for summary judgment is made and supported as provided in this rule,
an adverse party may not rest upon the mere allegations of denials of his pleading,
but his response, by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.
ported as provided in this rule, an adverse party may not rest upon the mere allegations of
denials of his pleading, but his response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for trial. If he does
not so respond, summary judgment, if appropriate, shall be entered against him.
In support of her motion for partial summary judgment, Tara presented the results of two
blood tests, each of which showed that there was more than a 98 percent chance that
Sanderson was Tara's father. In addition, Tara's mother, Kelly Chambers, submitted an
affidavit that she engaged in sexual relations with Sanderson during the probable period of
Tara's conception. In response, Sanderson submitted nothing. Sanderson presented no
affidavits, and did not deny parentage. Because Sanderson failed to present any evidence in
response to appellant's motion, the district court correctly granted partial summary judgment.
[Headnote 6]
Sanderson contends that because Chambers failed to comply with his wish to abort the
child or give it up for adoption, Chambers assumed full responsibility for raising Tara.
Sanderson further claims that he does not fall within the categories of presumed paternity
under NRS 126.051, and that Chambers therefore could not have had a realistic expectation
that Sanderson would have a parental relationship with Tara. Sanderson admits that there is
no Nevada case law directly addressing the issue, but cites two cases which he claims tend to
support his argument. See Szekeres v. Robinson, 102 Nev. 93, 715 P.2d 1076 (1986); Frye v.
Frye, 103 Nev. 301, 738 P.2d 505 (1987). This contention is not only meritless, it is frivolous.
Contrary to Sanderson's argument, Szekeres does not stand for the proposition that the father
of a fetus has a constitutional right to demand that it be aborted. Further, the principle of
equitable adoption recognized in Frye is inapplicable to the current case.
[Headnote 7]
Sanderson's final contention is that the district court erred by taking his financial situation
into account when calculating its award of child support. Sanderson states that the financial
ability of Jay William Sanderson is truly irrelevant to support of Tara Nicole Chambers. This
unsupported contention is completely untenable. The legislature has declared in NRS
125B.020(1) that, [t]he parents of a child . . . have a duty to provide the child necessary
maintenance, health care, education and support. Under NRS 125B.070(2), this obligation
for support is to be based on a percentage of the noncustodial parent's gross monthly income,
with a rebuttable maximum of $500.00 per month.
gross monthly income, with a rebuttable maximum of $500.00 per month.
Having concluded that the district court erred in denying Tara discovery of Sanderson's
income and in establishing a permanent child support award without allowing Tara an
opportunity to argue for an award in excess of the $500.00 maximum pursuant to NRS
125B.070(2)(e), we reverse the permanent child support award and remand this case to the
district court for further proceedings consistent with this opinion.
____________
107 Nev. 851, 851 (1991) Gorka v. State
GRACIJA RAMONA GORKA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21874
December 6, 1991 822 P.2d 111
Appeal from a judgment of conviction pursuant to a jury verdict of one count of obtaining
money by false pretenses, a felony. Second Judicial District Court, Washoe County; Roy L.
Torvinen, Judge.
County employee received differential pay under collective bargaining agreement for
maintaining residence in specified area. The district court convicted employee of obtaining
money by false pretenses following jury trial. Employee appealed. The supreme court held
that evidence did not support conviction.
Reversed.
Jerome M. Polaha and John S. Bodger, Reno; Richard F. Cornell, Reno, for Appellant.
Attorney and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
False Pretenses.
County employee did not obtain money by false pretenses, even though employee collected additional pay under collective
bargaining agreement for residing in specified area, where collective bargaining agreement did not define term reside, did not require
that employee maintain primary residence in designated area to be eligible for differential pay, and nothing in record supported
conclusion that employee misrepresented her place of residence with intent to defraud county of additional pay. NRS 205.380.
107 Nev. 851, 852 (1991) Gorka v. State
OPINION
Per Curiam:
This is an appeal from a judgment of conviction pursuant to a jury verdict of one count of
obtaining money by false pretenses, a felony. NRS 205.380. The district court sentenced
appellant to one year in the Nevada State Prison, and ordered appellant to pay restitution. The
district court suspended the sentence, and placed appellant on probation for a period not to
exceed eighteen months.
Pursuant to a collective bargaining agreement between Washoe County and its employees,
employees who work and reside in Incline Village are entitled to obtain a small amount of
extra compensation, referred to as differential pay, in order to offset the higher cost of living.
Appellant, a long-term employee of Washoe County, is accused of collecting from Washoe
County slightly more than $3,000 in differential pay over a three year period although,
according to the state, her primary residence was not in Incline Village.
Based on our review of the record, we conclude that the state failed to present sufficient
evidence to establish beyond a reasonable doubt appellant's guilt of obtaining money by a
false pretense. Specifically, the collective bargaining agreement at issue does not define the
term reside, nor does it specifically require that an employee maintain a primary residence
in Incline Village in order to be eligible for differential pay. All of the evidence presented at
trial may be viewed as consistent with appellant's claim that she resided in Incline Village
during the period of time in question. Indeed it appears that the evidence may establish that
appellant maintained her primary residence in Incline Village. In any case, the record is
entirely devoid of any evidence to support the conclusion that appellant misrepresented her
place of residence with the intent to defraud the county of differential pay. At best, the
evidence in this case may support the conclusion that appellant committed a civil wrong
against the county in violation of the county's interpretation of the terms of the collective
bargaining agreement.
1

Accordingly, we reverse the judgment of conviction.
2

__________

1
Of course, the meaning of the term reside in the collective bargaining agreement was not litigated in the
action below because this matter was pursued in a criminal, rather than a civil proceeding.

2
In light of this determination, we find it unnecessary to address appellant's remaining contentions.
____________
107 Nev. 853, 853 (1991) State, Dep't of Mtr. Vehicles v. Ortega
Appellant, v. PATRICK ORTEGA, Respondent.
No. 22231
December 6, 1991 821 P.2d 352
Appeal from an order of district court vacating an order of the Department of Motor
Vehicles and Public Safety revoking respondent's driving privileges. Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
Department of Motor Vehicles revoked driving privileges after receiving untimely notice
of driving under influence (DUI) conviction from municipal court clerk. Licensee petitioned
for judicial review. The district court restored licensee's driving privileges. Department
appealed. The supreme court held that Department had nondiscretionary duty to revoke
driver's license on conviction of DUI offense regardless of whether court clerk timely
transmitted record of conviction.
Frankie Sue Del Papa, Attorney General, Carson City; Andres R. Rappard, Deputy
Peter L. Flangas, Las Vegas, for Respondent.
1. Automobiles.
Department of Motor Vehicles has nondiscretionary duty to revoke driver's license of any person who has been convicted of
driving under influence offense; duty does not depend on whether court clerk timely transmits record of conviction to Department.
NRS 483.460.
2. Automobiles.
Reversal of defendant's driver license revocation, based on municipal court clerk's failure to timely transmit record of driving
under influence conviction, was error. NRS 483.450, subd. 3, 483.460.
OPINION
Per Curiam:
This is an appeal from an order of the district court vacating an order of the Nevada
Department of Motor Vehicles and Public Safety (DMV) revoking respondent's driving
privileges.
1
We reverse.
__________

1
Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal.
On November 9, 1989, respondent was arrested for driving under the influence of alcohol
in violation of NRS 484.379. On November 13, 1989, respondent pleaded guilty and was
convicted of that offense in the Henderson Municipal Court. No notice of respondent's
conviction was forwarded to the DMV at that time.
On December 12, 1989, respondent was notified by the DMV that his driving privileges
had been revoked pursuant to NRS 484.385, because respondent had been driving with more
than 0.10 percent of alcohol in his blood). See NRS 484.385(1) (the DMV must revoke a
person's driving prvileges if a test of the person's blood, urine or breath reveals that he was
driving with 0.10 percent of alcohol in the blood). Following a hearing on January 2, 1990, a
DMV DUI adjudicator dismissed the case against respondent and reinstated respondent's
driving privileges on the sole ground that the DMV had no paperwork to demonstrate that
respondent had driven a car with 0.10 percent of alcohol in his blood.
On April 17, 1990, the DMV received notice from the Henderson Municipal Court of
respondent's conviction entered on November 13, 1989. Consequently, on April 21, 1990, the
DMV revoked respondent's driving privileges pursuant to the mandatory provisions of NRS
483.460 for a period of ninety days. Respondent requested and was granted a hearing before a
DMV hearing officer. The hearing officer affirmed the order of revocation.
On July 31, 1990, respondent filed in the district court a petition for judicial review of the
decision of the DMV to revoke his driving privileges. After accepting written arguments and
following a hearing, the district court issued an order on March 12, 1991, vacating the order
of the DMV and restoring respondent's driving privileges. This timely appeal followed.
The order of the district court does not specify any reason for the reversal of the DMV's
order. Further, there is no transcript of the hearing before the district court in the record.
Thus, this court must necessarily speculate as to the reason for the reversal. The DMV argues
on appeal that the district court reversed solely because the clerk of the Henderson Municipal
Court failed to comply with NRS 483.450(3)
2
The DMV correctly contends that reversal on
that basis was error.
__________

2
NRS 483.450 provides in relevant part:
3. Every court, including a juvenile court, having jurisdiction over violations of the provisions of
NRS 483.010 to 483.630, inclusive, or any other law of this state or municipal ordinance regulating the
operation of motor vehicles on highways shall forward to the department:
(a) If the court is other than a juvenile court, a record of the
[Headnotes 1, 2]
NRS 483.460 imposes on the DMV a nondiscretionary duty to revoke the driver's license
of any person who, like respondent, has been convicted of a DUI offense. See Yohey v. State,
Dep't Motor Vehicles, 103 Nev. 584, 747 P.2d 238 (1987). The DMV's ministerial duty to
revoke drivers' licenses does not depend on whether the court clerk timely transmits to the
DMV a defendant's record of conviction. It would create an unmanageable burden on the
DMV to have a routine, ministerial function made dependent on the timely performance of a
duty by scores of minor functionaries in court clerks' offices across the state. The legislature
could not have intended such a result, and such a result is not supported by either reason or
statute. We conclude that the district court erred in determining that the timely transmission
of the record of conviction was jurisdictional.
Respondent argued below, and argues on appeal, that the DMV was precluded from
revoking his driver's license on April 21, 1990, by the doctrines of res judicata and collateral
estoppel. Specifically, respondent contends that the dismissal on January 2, 1990, of the
revocation of his license based on a violation of NRS 484.385 for driving with 0.10 percent
of alcohol in his blood acts as a bar to a revocation of his license based on his judgment of
conviction. This contention is frivolous. No issue that was raised or could have been raised at
the hearing of January 2, 1990, is even remotely relevant to the DMV's ministerial duty to
revoke respondent's driver's license pursuant to NRS 483.460 upon receipt of a record of
respondent's judgment of conviction for a DUI offense. Thus, the doctrines of res judicata
collateral estoppel are entirely inapplicable in this case.
Respondent contended below and contends on appeal that his driver's license should not be
revoked because the DMV has engaged in discriminatory and vindictive prosecution of this
matter in violation of respondent's constitutional rights to due process and equal protection.
Without any supporting documentation of any kind, respondent accuses the DMV of applying
NRS 483.460 only against persons who successfully challenge the DMV's attempts to revoke
a driver's license pursuant to NRS 484.385. These accusations are baseless. As previously
noted, the DMV exercises absolutely no discretion in its application of either NRS 484.385 or
NRS 483.460. Further, the DMV's ministerial act of revoking a driver's license pursuant to a
statutory mandate is in no sense a prosecution. Thus, the DMV has not acted in any vindictive
or discriminatory manner in this case.
__________
conviction of any person in that court for violation of any such laws other than regulations governing
standing or parking;
. . . .
within 20 days after the conviction . . . .
Accordingly, we reverse the decision of the district court, and we remand this matter to the
district court. On remand, the district court shall reinstate the order of the DMV revoking
respondent's driving privileges.
3

____________
107 Nev. 856, 856 (1991) Weaver v. Warden
HAROLD NORMAN WEAVER, Appellant, v. WARDEN, NEVADA STATE PRISON, H.
L. WHITLEY, Respondent.
No. 22340
December 6, 1991 822 P.2d 112
Proper person appeal from an order of the district court denying appellant's petition for
writ of habeas corpus. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Petition was filed for writ of habeas corpus. After remand, 103 Nev. 825, 809 P.2d 53, the
district court denied petition. Petitioner appealed. The supreme court held that defense
counsel was ineffective at sentencing warranting habeas relief.
[Petition for rehearing December 23, 1991]
Harold Norman Weaver, In Proper Person, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City, for Respondent.
1. Criminal Law; Habeas Corpus.
Failure of defense counsel to raise petitioner's posttraumatic stress disorder (PTSD) at sentencing constituted ineffective assistance
warranting habeas relief. U.S.C.A.Const. amend. 6.
2. Habeas Corpus.
Post-conviction petition for writ of habeas corpus is appropriate vehicle for modifying sentence which is infirm for any reason.
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court denying appellant's
petition for a writ of habeas corpus.
On October 26, 1982, the district court, pursuant to a guilty plea, convicted appellant of
one count of robbery and one count of robbery with use of a deadly weapon.
__________

3
The Honorable John C. Mowbray, Chief Justice, did not participate in the decision of this appeal.
of robbery with use of a deadly weapon. The district court sentenced appellant to terms
totaling forty-five years in the Nevada State Prison. Appellant did not file a direct appeal. On
April 27, 1987, appellant filed the instant petition for a writ of habeas corpus. Appellant
contended that he had ineffective assistance of counsel, both in entering his plea, and at
sentencing. Appellant's contentions centered on the failure of his attorney to investigate or
make an argument based on appellant's post-traumatic stress disorder (PTSD). On June 9,
1987, the district court, sua sponte, dismissed appellant's petition. On September 23, 1987,
this court vacated the order of the district court denying appellant's petition and remanded this
matter to the district court for an evidentiary hearing. Weaver v. Whitley, Docket No. 18325
(Order of Remand, September 23, 1987).
On March 18, 1991, the district court conducted an evidentiary hearing on appellant's
petition. The principal witness at that hearing was a psychiatrist, Dr. Edward J. Lynn. Dr.
Lynn has been a psychiatrist for twenty-two years. Among other things, Dr. Lynn was the
founding chief of psychiatry at the Reno Veteran's Administration. Dr. Lynn has published
works on PTSD, including how to differentiate between real PTSD and a patient who merely
pretends to suffer from PTSD.
Dr. Lynn found that appellant was suffering from PTSD. Dr. Lynn described appellant's
symptoms, which included recurring nightmares (including one of an event in Vietnam where
appellant had to assassinate one of his own men at the order of a superior officer), flashbacks,
and detachment from his family. To avoid nightmares, appellant used amphetamines to stay
awake, and then used alcohol for sleep when he became exhausted. Dr. Lynn testified, from
interviewing appellant and examining his records, that appellant's PTSD and amphetamine
use could have impaired his ability to enter a knowing and voluntary guilty plea. Dr. Lynn
reviewed the reports of two psychiatrists who examined appellant prior to entering his guilty
plea and determined that those psychiatrists did not address appellant's PTSD. Because
appellant's last discharge from the military was dishonorable, appellant was not entitled to
treatment from the Veteran's Administration. Dr. Lynn rated appellant's PTSD in the severe
range.
Appellant also testified at the evidentiary hearing. Appellant's testimony was generally that
he had no recollection of committing the robberies and that he pleaded guilty because the
public defender promised him he would receive a light sentence in view of his service in
Vietnam.
At the conclusion of the evidentiary hearing the district court announced that the petition
for a writ of habeas corpus was denied. The district court acknowledged that appellant
suffered from PTSD, but ruled that he was competent to enter a guilty plea.
from PTSD, but ruled that he was competent to enter a guilty plea.
The district court then concluded the hearing by noting that it was unfortunate that the
sentencing court was not presented with evidence of appellant's PTSD. The district court
further opined that such evidence may well have affected this defendant's sentence.
Nevertheless, the district court stated that it could not grant appellant any relief on his
sentence in the context of a petition for a writ of habeas corpus.
On May 3, 1991, the district court entered its order, supported by findings of fact and
conclusions of law, denying appellant's petition for a writ of habeas corpus. In its formal
findings of fact, the district court examined the argument of appellant's counsel at sentencing,
demonstrating that counsel made virtually no argument of any kind. This appeal followed.
[Headnote 1]
Our review of the record on appeal has convinced us that the district court erred in denying
appellant's petition for a writ of habeas corpus. From the comments of the district court at
appellant's evidentiary hearing, and from the findings of fact made by the district court, it
appears that appellant carried his burden of showing that he had ineffective assistance of
counsel at sentencing.
[Headnote 2]
A post-conviction petition for a writ of habeas corpus is an appropriate vehicle for
modifying a sentence which is infirm for any reason. See, generally, Murray v. State, 106
Nev. 907, 803 P.2d 225 (1990) (indicating that a district court judge should grant the petition
for a writ of habeas corpus relief if the sentence was illegal); David v. Warden, 99 Nev. 799,
671 P.2d 634 (1983) (approving of procedure in which district court cured a
misunderstanding in a plea agreement by modifying defendant's sentence on petition for a
writ of habeas corpus); Kluttz v. Warden, 99 Nev. 681, 669 P.2d 244 (1983) (this court
reversed and remanded for resentencing after district court refused to grant petition for habeas
corpus based on state's argument for sentence in excess of that agreed to); Douglas v. State,
99 Nev. 22, 656 P.2d 853 (1983) (this court modified appellant's sentence on appeal after
district court refused to grant post-conviction motion to withdraw guilty plea or reconsider
sentencing). Sentencing which takes place without the effective assistance of counsel is in
violation of the sixth and fourteenth amendments to the United States Constitution, and is
therefore infirm. See, generally, Strickland v. Washington, 466 U.S. 668 (1984). Accordingly,
when a district court finds that a petitioner for a writ of habeas corpus had ineffective
assistance of counsel at sentencing, the district court should grant the petition and vacate
the sentence.
ineffective assistance of counsel at sentencing, the district court should grant the petition and
vacate the sentence. The state then has the option of either going to the district court which
sentenced the petitioner for a new sentencing hearing, or else appealing to this court.
Normally, we would remand this case for a new sentencing hearing in front of the same
district court judge who originally sentenced appellant. In this case, however, the clerk of the
Eighth Judicial District Court has informed the clerk of this court that the judge who
originally sentenced appellant is no longer on the bench. Accordingly, we reverse the order of
the district court denying appellant's petition for a writ of habeas corpus. We grant appellant's
petition for a writ of habeas corpus. We remand this matter to the First Judicial District Court
for a new sentencing hearing.
1

____________
107 Nev. 859, 859 (1991) Michelsen v. Harvey
JOHN E. MICHELSEN and ANN J. MICHELSEN, Husband and Wife, JOHN E.
MICHELSEN, Trustee of JOHN E. MICHELSEN FAMILY TRUST AGREEMENT,
Appellant, v. JAMES A. HARVEY, Trustee of HARVEY FAMILY TRUST, DATED
9/26/80, SAMUEL S. HARVEY, ELIZABETH HARVEY BLAIKIE and JOHN F.
BLAIKIE, Tenants in Common, Respondents.
No. 21741
December 6, 1991 822 P.2d 660
Appeal from judgment awarding respondents quiet title to Lake Tahoe beach property in
fee simple absolute. Ninth Judicial District Court, Douglas County; David R. Gamble, Judge.
Action was brought to quiet title to beach property. The district court entered judgment,
and appeal was taken. The supreme court held that: (1) deed that conveyed metes and bounds
description and used meander line as its last call conveyed title to high water mark of lake as
opposed to meander line, and (2) adjoining landowners established prescriptive easement to
use beach area.
Reversed.
Thomas J. Hall, Reno; Hibbs, Roberts Lemons, Grundy & Eisenberg, Reno, for
Appellants.
__________

1
We express no opinion on whether appellant should be sentenced to a different term than he originally
received. We conclude merely that the sentencing court should sentence appellant with knowledge of the facts
disclosed at appellant's evidentiary hearing.
F. Thomas Eck, Carson City, for Respondents.
1. Boundaries.
When government sells property surveyed with meander line, the water course, and not the meander line, marks boundary of
property.
2. Navigable Waters.
When deed described property on lake with reference to government survey, which established and used meander line, purchaser
acquired title to high water mark of lake and not simply to meander line.
3. Boundaries.
Deed which contained metes and bounds description and used meander line as its last call conveyed title to high water mark of
lake, as opposed to meander line; meander was close to edge of lake when deed was written, and meander line had been used by
government as survey substitute for high water mark.
4. Easements.
Prescriptive easement is created through five years of adverse, continuous, open and peaceable use of land.
5. Easements.
Mere use does not constitute adverse use which will create prescriptive easement, but rather adverse use occurs when user
asserts claim of right to use land.
6. Easements.
Exclusive use is not necessary to establish easement by prescription.
7. Easements.
Party claiming easement by prescription must establish easement by clear and convincing evidence.
8. Easements; Navigable Waters.
Adjacent landowners had not established prescriptive easement to use existing pier which was built by landowners' predecessor,
even though adjoining landowners established prescriptive easement to use beach area, where landowners' predecessor had placed no
trespassing signs on his pier, and adjoining landowners had not frequently used pier or claimed right to do so.
9. Easements; Navigable Waters.
Adjoining landowners established prescriptive easement to use beach area, where adjoining landowners and their predecessors
peacefully and continually used beach area for period of sixty years under claim of right to do so, predecessor had built pier from beach
area to water, predecessor had constructed beach wall across beach area, and adjoining landowners cleaned beach of debris and pine
cones on yearly basis.
OPINION
Per Curiam:
This case involves a property dispute between appellants John and Ann Michelsen
(Michelsens) and respondents James Harvey, Samuel Harvey, Elizabeth Harvey Blaikie,
and John Blaikie (Harveys). The Michelsens and the Harveys each own a parcel of land
bordering Lake Tahoe. These parcels are adjacent to each other and were once part of a large
tract of land owned by Gertrude Church {"Church"), the Harveys' grandmother.
Gertrude Church (Church), the Harveys' grandmother. A wide, sandy beach area is located
directly lakeward of the parcel now owned by the Michelsens. Ownership of this beach area is
disputed, and both parties claim ownership in fee simple absolute based on the deed in which
Church first conveyed the parcel of land now owned by the Michelsens.
Before Church acquired her Lake Tahoe property, a United States Government Survey of
the land was performed. This survey was directed by the United States Surveyor General for
the District of Nevada and was completed in February 1861 and updated 1875. To perform
the survey, the government surveyors created a meander line along the edge of Lake Tahoe. A
meander line is generally a short distance landward from the water's edge (not the actual high
tide mark) and is used to determine the amount and price of land to be sold by the federal
government. In other words, a meander line is a series of short, straight lines used to
approximate the water's curved edge, so that the government can determine how much
waterside land it owns and how much it should charge for the land.
1

The original deed to the Michelsens' parcel was conveyed by Church to W. H. Moffat in
1930; it includes a metes and bounds description and uses the Lake Tahoe meander line as
one of its boundaries. Specifically, the deed reads as follows:
Beginning at the meander corner common to Section 9 and 10, T. 13 N., R. 18 E.,
thence, Course No. 1.-South 453.3 feet on Section line between Sections 9 and 10,
thence, Course No. 2.-West 93.1 feet on North side of Highway, thence, Course No.
3.-North 461.45 feet on C. F. Johnson's East side line, thence, Course No. 4.-S. 85 E.
on the meander line to the place of beginning.
2

The deed does not mention the water's edge. Because the meander line and the high water
mark were not identical when the deed was conveyed, ownership of the beach area lakeward
of the meander line is now in dispute.
At the time Church conveyed the property to Moffat, the area between the meander line
and the high water mark was probably small, as the meander line was used in the government
survey to approximate the lake's high water mark. Even though Lake Tahoe may have
receded somewhat between the time of the government survey {1S61 and 1S75) and the
time of Church's conveyance to Mr.
__________

1
Meander lines are run in surveying fractional portions of the public lands bordering upon navigable
rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks . . . and as a
means of ascertaining the quantity of the land in the fraction subject to . . . .' Hardin v. Jordan, 140 U.S. 371,
381 (1891) (citation omitted).

2
The Michelsens' deed contains this same metes and bounds description.
may have receded somewhat between the time of the government survey (1861 and 1875) and
the time of Church's conveyance to Mr. Moffat (1930), the State of Nevada owned the lake
bed up to the old high water mark, which the meander line was used to approximate. Any
existing beach area below the original high water mark was owned by Nevada.
In 1979, however, the Nevada legislature enacted a statute relocating the boundary
between the bed of Lake Tahoe (owned by the state of Nevada) and land adjacent to the lake.
Because Lake Tahoe had receded over the years, the legislature passed NRS 321.595, which
established the boundary line of the lake bed at 6,223 feet, Lake Tahoe datum.
3
Thus, the
boundary of the lake bed was moved to approximate the lake's lower water level, and the
entire beach area adjacent to the Michelsens' parcel was converted to private property. Both
the Michelsens and the Harveys claim ownership of this wide, sandy beach.
The district court determined that the Church/Moffat deed's use of the meander line is
redundant and that the deed names but does not actually describe the location of the meander
line. Specifically, the district court found that [t]he Church/Moffat deed contains a metes
and bounds description of the land conveyed and includes the property that is upland from the
meander corners of the Michelsen's lot. Moffat's deed does not include land to the actual
meander line. Therefore, the district court concluded that the deed does not convey land to
the meander line, but instead to a line somewhere above the meander line. The district court
also found that the grantor, Church, had impliedly reserved the segment of land between the
meander line and the water's edge for herself. Thus, the district court determined that since
the entire beach area (converted to private property in 1979) extends from the strip of land
Church had impliedly reserved, the Harveys, Church's heirs, own the beach in fee simple
absolute.
[Headnotes 1, 2]
We disagree. When the government sells property surveyed with a meander line, the water
course, and not the meander line, marks the boundary of the property. Reno Brewing Co. v.
Packard, 31 Nev. 433, 103 P. 415 (1909); see Hardin v. Jordan, 140 U.S. 371 (1891). Because
the Lake Tahoe property bought by Church was described with reference to the government
survey (which established and used the meander line),
4
she acquired title to the high water
mark of Lake Tahoe, and not simply to the meander line.
__________

3
This number refers to the 6,223 foot elevation level, as measured by the Lake Tahoe datum base elevation.

4
Specifically, Church bought property described as Lot numbered One (1), being the fractional North half
(N1/2) of section Nine (9), Township Thirteen (13) North, Range Eighteen (18) East . . . containing thirty-six
and 66/100 (36.66) acres, more or less, according to the United States Government survey thereof.
to the high water mark of Lake Tahoe, and not simply to the meander line.
[Headnote 3]
Church conveyed a portion of this property (the parcel currently owned by the Michelsens)
in a deed containing a metes and bounds description and using the meander line as its last
call. In Langworthy v. Coleman, 18 Nev. 440, 444, 5 P. 65, 67 (1884), we determined the
intent of a grantor by construing the deed most favorable [sic] to the grantee, and
considering the character of the property, and all the circumstances surrounding the parties.
In the present case, we find that the Church/Moffat deed reflects the parties' intent.
Construing the deed most favorably to the Michelsens, and considering the character of the
property and relevant circumstances, we find that Church conveyed title to the high water
mark of Lake Tahoe.
Because the meander line was close to the edge of Lake Tahoe when the deed was written,
and because the meander line had been used by the federal government as a survey substitute
for the high water mark, we find that Church intended to convey title to the high water mark.
The only reason for the meander line's existence was to represent the high water mark at the
time of the government survey. Even if the lake had receded by the time Church conveyed the
property (1930), the official high water mark was still close to the meander line. As
mentioned above, the state of Nevada owned whatever beach existed below the high water
mark until 1979.
Under these circumstances, it would have been strange for Church to reserve impliedly a
small strip of land along the edge of the lake for herself. If Church had intended to reserve
title to an area of land adjacent to the high water mark, we believe she would have reserved
more than the modest strip of land between the meander line and the lake bed (owned by
Nevada). In addition, if Church had intended to reserve title to the strip of land, she could
have done so expressly.
[Headnotes 4-6]
Although the Michelsens possess title to the beach area in fee simple absolute based on the
deed conveyed by Church, the Harveys have met the requirements for a prescriptive easement
and have the right to use the beach area. A prescriptive easement is created through five years
of adverse, continuous, open, and peaceable use of land. Wilfon v. Hampel 1985 Trust, 105
Nev. 607, 608, 781 P.2d 769, 770 (1989) (citing Stix v. LaRue, 78 Nev. 9, 11, 368 P.2d 167,
168 (1962)). Mere use does not constitute adverse use: Adverse use occurs when the user
asserts a claim of right to use the land. In addition, exclusive use is not necessary to
establish an easement by prescription.
necessary to establish an easement by prescription. Stix, 78 Nev. at 14, 368 P.2d at 169.
[Headnotes 7-9]
The party claiming an easement by prescription must establish the easement by clear and
convincing evidence. Wilfon, 105 Nev. at 608, 781 P.2d at 770. The district court below
found that the Harveys have established a prescriptive easement to use the beach area.
5
Although the district court did not specifically conclude that the Harveys had established a
prescriptive easement by clear and convincing evidence, we find that the record contains clear
and convincing evidence of a prescriptive easement. The Harveys and their predecessors
peacefully and continually used the beach area for a period of sixty years under a claim of
right to do so. Church built a pier (now destroyed) from the beach area to the water. In
addition, a seawall was constructed across the beach area; this seawall was built by Church
and W. H. Moffat. Further, according to the Harveys, their father, Reverend John Harvey,
exercised control over the beach area for more than thirty years and prohibited people from
smoking and drinking alcoholic beverages on the beach. Finally, the Harveys testified that
they have cleaned the beach of debris and pine cones on a yearly basis. These acts
demonstrate that the Harveys' predecessors claimed a right to use, modify, and control the
beach. We therefore find that the Harveys have established a prescriptive easement over the
beach area and may continue using it as they have during the past sixty years.
____________
107 Nev. 864, 864 (1991) Erickson v. State
JEFFREY L. ERICKSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21539
December 6, 1991 821 P.2d 1042
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of larceny of
a motor vehicle. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Defendant pled guilty in the district court of larceny of a motor vehicle, and was ordered to
pay restitution for losses suffered by victims of offenses that had been dismissed by State as
part of plea bargain or never charged to defendant.
__________

5
The district court found, and we agree, that the Harveys have not established a prescriptive easement to use
the existing pier, which was built by Walter Cox, the Michelsens' predecessor. Mr. Cox placed no trespassing
signs on his pier, and the Harveys have not frequently used the pier or claimed a right to do so.
plea bargain or never charged to defendant. Defendant appealed. The supreme court held that
defendant may be ordered to pay restitution only for offense that he has admitted, upon which
he has been found guilty, or upon which he has agreed to pay restitution.
Terri Steik Roeser, State Public Defender, Janet S. Bessemer, Deputy Public Defender,
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney,
Eric S. Hoshizaki, Deputy District Attorney, Carson City, for Respondent.
Criminal Law.
Defendant may be ordered to pay restitution only for offense that he has admitted, upon which he has been found guilty, or upon
which he has agreed to pay restitution; fact that offense resulting in loss arises out of same transaction or conduct as charge to which
defendant pleads guilty will not by itself support ordering restitution for such loss. NRS 176.033, subd. 1(b).
OPINION
Per Curiam:
THE FACTS
The State charged appellant Jeffrey Erickson (Erickson) with five felonies: burglary,
grand larceny, larceny of a motor vehicle, attempted grand larceny, and attempted larceny of a
motor vehicle. These charges arose out of several crimes committed on or between the 6th
and 8th days of October, 1986, in Carson City, Nevada.
Pursuant to a negotiated plea, Erickson pleaded guilty to one of the counts, larceny of a
motor vehicle. In doing so, he admitted stealing a Chevrolet Corvette. In exchange for
Erickson's plea, the State dropped the remaining four charges. The memorandum of plea
negotiations made no mention of the State's intention to seek restitution for the victims of the
dismissed charges.
The district court sentenced Erickson to eight years in prison and ordered him, under NRS
176.033(1)(b), to pay approximately $16,000.00 in restitution. Because the owner of the
Corvette suffered no loss as a result of its theft, Erickson was not ordered to pay any
restitution for the offense to which he pled guilty. Instead, the entire restitution amount
represented losses suffered by victims of offenses that were either dismissed by the State as
part of the plea bargain or never charged to Erickson.
Erickson appealed, challenging, inter alia, the district court's restitution order.
DISCUSSION
The restitution provision contained in NRS 176.033 authorizes courts, when sentencing
defendants convicted of offenses for which imprisonment is required or permitted by statute,
to set an amount of restitution for each victim of the offense. NRS 176.033(1)(b).
Erickson contends that the district court, in ordering him to pay restitution to persons not
victims of the crime he admitted, effectively sentenced him for crimes that the State had
dismissed as part of the plea agreement. In doing so, concludes Erickson, the court abused it
discretion and exceeded its authority under NRS 176.033(1).
The State submits that the district court's restitution order was proper. In the State's view,
courts should utilize a transactional approach when ordering restitution pursuant to NRS
176.033(1)(b). Under this approach, courts have discretion to order restitution to all victims
whose losses, though not the result of offenses to which a defendant either pleads guilty or
has been adjudicated so, arise out of the same transaction or conduct as the charge to which
the defendant pleads guilty.
This issue, though one of first impression before this court, has been confronted by courts
in many of our neighboring jurisdictions. Interpreting restitution statutes nearly identical to
ours, the majority of these courts have held that a defendant may be ordered to pay restitution
only for an offense that he has admitted, upon which he has been found guilty, or upon which
he has agreed to pay restitution. State v. French, 801 P.2d 482 (Ariz.Ct.App. 1990); see also
State v. Voetberg, 781 P.2d 387 (Or.Ct.App. 1989); State v. Madril, 733 P.2d 365
(N.M.Ct.App. 1987); State v. Berman, 747 P.2d 492 (Wash.Ct.App. 1987); Nelson v. State,
628 P.2d 884 (Alaska 1981). We reject the State's position and adopt the majority rule. Such a
rule embodies a fair reading of NRS 176.033(1) and avoids the manifest injustice of
punishing defendants for charges to which they have neither admitted guilt nor been
adjudicated guilty.
1

We find no merit in Erickson's remaining contentions. Accordingly, we affirm Erickson's
conviction of larceny of a motor vehicle and reverse and vacate the district court's restitution
order.
__________

1
Adopting this rule will have the salutary effect of incorporating restitution into plea negotiations. For
example, in the instant case, the State could have offered to dismiss charges against Erickson in return for his
consent to pay restitution to the victims of those charges.
____________
107 Nev. 867, 867 (1991) SIIS v. Lodge
THE STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. HELEN LODGE, Respondent.
No. 21963
December 6, 1991 822 P.2d 664
This is an appeal from a district court order affirming an administrative appeals officer's
decision to grant widow's benefits in a worker's compensation case. Eighth Judicial District
Court, Clark County; John F. Mendoza, Judge.
Worker's widow appealed State Industrial System's denial of worker's compensation death
benefits. Administrative appeals officer reversed, and appeal was taken. The district court
denied review, and System appealed. The supreme court held that widow's claim was
independent from, rather than derivative of, worker's claim, and therefore widow could seek
under one-year statute of limitations to recover benefits up to one year after worker's death,
even though worker had failed to make timely claim for disability benefits.
Affirmed.
R. Scott Young, General Counsel, Carson City; Nancy K. Richins, Associate General
Counsel, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas for
Respondent.
Claim for worker's compensation death benefits filed by widow of worker, who had become totally disabled with silicosis, was
governed by alternative statute of limitations for silicosis and other diseases related to asbestos, as opposed to general statute of
limitations for occupational disease or death resulting from occupational disease. NRS 617.330, 617.460.
Worker's widow's right to recover worker's compensation death benefits was independent from, rather than derivative of, worker's
claim, and therefore one-year statute of limitations allowed recovery by widow up to one year after worker's death, regardless of
whether worker had made timely claim within one year after worker knew or should have known of relationship between disease and
employment NRS 616.615, 617.330, 617.460.
As applied to claim for worker's compensation death benefits, claimant is widow or dependent, within meaning of statute
providing that claims for compensation on account of silicosis or disease related to asbestos are forever barred unless application is
made to insurer within one year after date of disability or death and within one year after claimant knew or should have known of
relationship between disease and employment. NRS 617.460.
107 Nev. 867, 868 (1991) SIIS v. Lodge
OPINION
Per Curiam:
Frank Lodge (Frank) was a sheet metal worker, an occupation which involves working
with asbestos and fiberglass insulation. In 1976, he became totally disabled with silicosis, a
respiratory illness, as a result of his employment. Frank did not file a claim for worker's
compensation benefits until December of 1984, when he met another worker with a
respiratory disease who was receiving benefits under the Nevada Occupational Diseases Act.
1
Frank's claim was ultimately dismissed by this court, because under NRS 617.460, an
application for benefits for silicosis arising out of and occurring within the course of
employment must be filed within one year of the date the disability occurred.
On February 25, 1988, Frank died of acute respiratory failure due to emphysema, which an
administrative hearing officer ultimately found to be industrially caused and related. Frank's
wife, Helen Lodge (Helen), subsequently filed a claim for widow's benefits with the State
Industrial Insurance System (SIIS). SIIS denied the claim. The hearing officer affirmed SIIS'
decision, finding that the doctrine of res judicata applied with regard to the litigation
involving Frank. Helen appealed, and the administrative appeals officer reversed and awarded
Helen benefits, concluding that the spouse's benefits are separate and distinct from those of
the injured worker and that the doctrine of res judicata does not apply. The district court
denied judicial review, and we affirm the district court's decision.
Statute of Limitations
SIIS argues that the appeals officer improperly applied NRS 617.330 in determining
whether Helen had timely filed her claim. SIIS contends that NRS 617.460 is the relevant
statute governing the time limitations for silicosis and other diseases related to asbestos. SIIS
thus asserts that because Frank failed to file a claim within one year after he knew or should
have known of the relationship between the disease and the employment, Helen's recovery is
barred by statute.
[Headnote 1]
In all cases of occupational disease or death resulting from occupational disease,
except as otherwise provided in this chapter, a proceeding before the insurer on a
claim for compensation is forever barred, unless, within 90 days after the employee
has knowledge of the disability and its relationship to his employment, or within 1
year after death occurred, a claim therefore is filed with the insurer.
__________

1
At a prior hearing, Frank testified that in 1976, he called the Nevada Industrial Commission (the
predecessor to the State Industrial Insurance System) to inquire about filing a claim, and someone informed him
that respiratory diseases were not compensable.
107 Nev. 867, 869 (1991) SIIS v. Lodge
chapter, a proceeding before the insurer on a claim for compensation is forever barred,
unless, within 90 days after the employee has knowledge of the disability and its
relationship to his employment, or within 1 year after death occurred, a claim therefore
is filed with the insurer.
(Emphasis added.) NRS 617.460 provides an alternative statute of limitations for silicosis and
other diseases related to asbestos. NRS 617.460 states in pertinent part:
(1) Silicosis and diseases related to asbestos are occupational diseases and are
compensable as such when contracted by an employee and when arising out of and in
the course of employment.
(2) Claims for compensation on account of silicosis or a disease related to asbestos
are forever barred unless application is made to the insurer within 1 year after the date
of disability or death and within 1 year after claimant knew or should have known of
the relationship between the disease and the employment.
(Emphasis added.) NRS 617.460 is thus the applicable statute of limitations in the case at bar.
SIIS interprets NRS 617.460(2) as providing the following two conditions precedent to the
timely filing of a claim: (1) that application be made within one year after the date of
disability or death; and (2) that application be made within one year after the claimant knew
or should have known of the relationship between the disease and the employment. SIIS
maintains that, in the case at bar, although the first condition was met, the second condition
was not, because Frank was aware of the relationship between the disease and the
employment in 1976. Helen asserts that the limitations period on a death claim should not
commence until the worker actually dies. See Gilloon v. Humana, Inc., 100 Nev. 518, 687
P.2d 80 (1984) (decedent's death is an essential element of wrongful death action, and there is
no legal injury until death has occurred).
[Headnote 2]
We interpret the statute of limitations to allow recovery up to one year after the husband's
death, regardless of whether a claim was made by the employee within one year after the
employee knew or should have known of the relationship between the disease and the
employment, because the widow's cause of action commences upon the death of her husband.
Derivative Claim Versus Independent Claim
SIIS argues that Helen's claim is derivative of Frank's claim and that because he was
barred from recovery, so should be his dependents.
107 Nev. 867, 870 (1991) SIIS v. Lodge
dependents. SIIS urges this court to adopt the minority rule that a widow's right to death
benefits is derived from the right of her deceased husband.
2
Helen responds that a widow's
right to death benefits is separate and distinct from her husband's rights to disability benefits,
and that an employee's failure to claim his benefits within the time limits should not affect the
rights of his dependents.
In Nevada, a widow is provided worker's compensation death benefits under NRS
616.615. Whether the widow's claim is independent from or derivative of her husband's claim
is a question of first impression for this court. The issue has been decided in most states and
discussed as follows in Larson's Workmen's Compensation Law:
Death claims present one special question, however, which is the problem of the
extent to which death claims should be barred by omission of the original notice of
injury or by failure of the employee himself to make a claim within the original claims
period. Although the question has had comparatively little attention, the employee's
failure to make claim has usually been held immaterial.
There are several routes by which to approach the question of failure to file the
injury claim in time. The usual argument is that the injury claim and the death claim are
entirely independent of each other, and that the dependent's rights cannot be affected by
the employee's omission to claim because the dependent is claiming in his own right. . .
. But compensation legislation is a system of benefits one of whose independent social
objectives is to prevent destitution among dependents of workmen who lose their lives
in industrial activity. There is nothing in such legislation to give the slightest support to
a suggestion that the widow derives her rights through a valid cause of action
belonging to her husband at the time he died.
2B Larson, Workmen's Compensation Law 78.62 (1990) (footnotes omitted).
3
Berkebile v.
Worker's Comp. App. Bd., 144 Cal.App.3d 940 {Cal.Ct.App.
__________

2
Winston v. City of Richmond, 83 S.E.2d 728, 732 (Va. 1954) exemplifies the view of a small minority. In
Winston, the Virginia court, when confronted with a statute similar to NRS 617.460, concluded that, when
strictly applied, the statute clearly and unambiguously barred recovery.

3
Many courts have held in favor of the dependents, regardless of the employee's failure to make a timely
claim. See, e.g., Garcia v. Industrial Commission of Arizona, 685 P.2d 1336 (Ariz.App. 1984); Claimants of
Hampton v. Director of Division of Labor, 500 P.2d 1186 (Colo.App. 1972); American Radiator & Standard
Sanitary Corp. v. Gerth, 375 S.W.2d 817 (Ky. 1964); Ingalls Shipbuilding Corp. v. Dependents of Harris, 187
So.2d 886 (Miss. 1966); Pedrazza v. Sid Fleming Con., Inc., 607 P.2d 597 (N.M.
107 Nev. 867, 871 (1991) SIIS v. Lodge
Berkebile v. Worker's Comp. App. Bd., 144 Cal.App.3d 940 (Cal.Ct.App. 1983), is a
typical example of the majority rule. In Berkebile, the court considered a statute similar to
NRS 617.460 and concluded that no statute should be interpreted in a manner which would
result in a right being lost before it accrues. The court thus allowed the dependent to recover
benefits, even though the employee's claim had been barred by the statute of limitations.
[Headnote 3]
The primary purpose of Nevada worker's compensation laws is to provide economic
assistance to persons who suffer disability or death as a result of their employment. SIIS v.
Jesch, 101 Nev. 690, 693-695, 709 P.2d 172, 175 (1985) (fact that husband died of
asbestos-related mesothelioma and had not been exposed to asbestos for over ten years did
not bar death benefits to widow, notwithstanding literal reading of NRS 617.460(4) and NRS
617.470). Moreover, [t]his court has a long-standing policy of liberally construing these laws
to protect workers and their families. Jesch, 101 Nev. at 694, 709 P.2d at 175. Because it is
undisputed that Frank died as a result of his work-related illness, we concluded that his
failure to make a timely claim for disability benefits while he was alive does not affect
Helen's rights to death benefits. A logical interpretation of NRS 617.460 is that the
claimant is the widow or dependent, and the knowledge that the disease caused the death
arises only upon the death of the injured employee. We therefore affirm the decision of the
district court.
____________
107 Nev. 871, 871 (1991) Abbott-Interfast v. District Court
ABBOTT-INTERFAST CORPORATION, Petitioner, v. EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the County of Clark, and THE
HONORABLE STEPHEN L. HUFFAKER, District Judge, Respondents, and
GASSER CHAIR CO., INC., Real Party in Interest.
No. 22239
December 6, 1991 821 P.2d 1043
Original petition for a writ of prohibition. Eighth Judicial District Court, Clark County;
Stephen L. Huffaker, Judge.
__________
1980); Fossum v. State Acc. Ins. Fund, 619 P.2d 233 (Or. 1980); Parks v. Winkler, 184 A.2d 124 (Pa. 1962);
Martinez v. Industrial Commission of Utah, 720 P.2d 416 (Utah 1986).
Action was brought against chair manufacturer for injuries allegedly suffered when chair
collapsed under person seated in casino. Chair manufacturer filed third party complaint
against manufacturer of bolts, alleging that bolts purchased from manufacturer and
incorporated in chair broke, causing chair to collapse. Bolt manufacturer filed motion to
quash on ground of lack of minimum contacts with Nevada required for personal jurisdiction.
The district court denied that motion. Bolt manufacturer petitioned for writ of prohibition.
The supreme court held that bolt manufacturer had sufficient contacts with Nevada to be
required to defend there.
Petition denied.
Edwards, Hunt, Hale & Hansen, Las Vegas, for Petitioner.
Rex Bell, District Attorney, Clark County, for Respondents.
Vargas & Bartlett, Las Vegas, for Real Party in Interest.
1. Prohibition.
Writ of prohibition is appropriate remedy to challenge district court's refusal to quash service of process.
2. Courts.
When challenge to personal jurisdiction is made, plaintiff has burden of introducing competent evidence of essential facts which
establish prima facie showing that personal jurisdiction exists.
3. Corporations.
Manufacturer of bolts which were allegedly incorporated in chair that collapsed under seated customer in casino in Las Vegas had
sufficient contacts with Nevada to be required to defend in Nevada claims that bolts made by manufacturer failed and caused injury in
that state, even though bolt manufacturer was Illinois corporation with its principal place of business there and bolt purchaser was Ohio
corporation.
OPINION
Per Curiam:
This original petition for a writ of prohibition challenges an order of the district court
denying a motion to quash service of process. The action below arose when the plaintiff sat in
a chair that collapsed in the sports book at Bally's Grand Casino. The chair was made by real
party in interest Gasser Chair Company, Inc. Gasser filed a third party complaint against
petitioner Abbott-Interfast, Inc., alleging that bolts which it purchased from Abbott were
incorporated in the chair and broke, causing it to collapse. Abbott filed in the district court a
motion to quash on the basis that it lacks the minimum contacts with Nevada required for
personal jurisdiction. See International Shoe v. Washington, 326 U.S. 310 {1945).
326 U.S. 310 (1945). The district court denied the motion, and this petition followed.
[Headnotes 1, 2]
A writ of prohibition is the appropriate remedy to challenge the district court's refusal to
quash service of process. See Judas Priest v. District Court, 104 Nev. 424, 425, 760 P.2d 137,
138 (1988). When a challenge to personal jurisdiction is made, the plaintiff has the burden of
introducing competent evidence of essential facts which establish a prima facie showing that
personal jurisdiction exists. See Davis v. District Court, 97 Nev. 332, 337, 629 P.2d 1209,
1213 (1981).
[Headnote 3]
Abbott is an Illinois corporation with its principal place of business in Illinois. Gasser is an
Ohio corporation engaged in the design, manufacture and sale of chairs for hotels, restaurants
and casinos. Approximately thirty percent of Gasser's production is sold to gaming clients, a
large portion of which are in Nevada. Gasser has presented evidence that Abbott knew the
nature of Gasser's business and actively marketed its bolts and fasteners to Gasser, knowing
many of them would be incorporated into chairs destined for Nevada customers. Therefore,
Abbott has sufficient contacts with Nevada to be required to defend in Nevada claims that
bolts made by it failed and caused injury in this state. See World-Wide Volkswagen v.
Woodson, 444 U.S. 286, 297-98 (1979); Myers v. Johns Manville Sales Corp., 600 F.Supp.
977, 986 (D. Nev. 1984); Judas Priest v. District Court, 104 Nev. 424, 760 P.2d 137 (1988);
Metal-Matic v. District Court, 82 Nev. 263, 415 P.2d 617 (1966). Consequently, we conclude
that the district court did not err by denying the motion to quash, and we deny this petition.
____________
107 Nev. 873, 873 (1991) Nurenberger Hercules-Werke v. Virostek
NURENBERGER HERCULES-WERKE GMBH, a Foreign Corporation, Appellant, v.
FRANK VIROSTEK, Respondent.
No. 21110
December 6, 1991 822 P.2d 1100
Appeal from judgment upon a jury verdict, Order Substituting True Name of
Misdesignated Defendant, Order Denying Motion for Judgment Notwithstanding the Verdict
and New Trial. Second Judicial District Court, Washoe County; Thomas L. Stringfield,
Judge.
Products liability plaintiff who suffered permanent brain damage as a result of injuries
sustained in accident that occurred while riding his moped brought action against, inter alia,
retailer. Thereafter, plaintiff added manufacturer. Following a jury trial, the district court
entered judgment in favor of plaintiff for over $1 million and granted plaintiff's motion for
attorney fees in amount of $300,000. Manufacturer appealed. The supreme court, Steffen, J.,
held that: (1) plaintiff properly pleaded uncertainty as to defendants' true names; (2) district
court properly allowed plaintiff to substitute manufacturer of moped as defendant after
expiration of period of limitations; and (3) under both attorney fee statute and rule of court for
award of attorney fees when obtaining judgment more favorable than offer of judgment that
was rejected, trial court cannot award counsel fees for legal services performed prior to date
of offer of judgment.
Affirmed in part; remanded in part.
[Rehearing denied February 21, 1992]
Vargas & Bartlett and Nicholas F. Frey, Reno, for Appellant.
Peter Chase Neumann, Reno, for Respondent.
Bradley & Drendel and Thomas E. Drendel, Reno, for Amicus Curiae Nevada Trial
Lawyers Association.
1. Parties.
Meritorious causes of action should not be frustrated where, despite reasonable diligence, true identity of culpable parties is
uncertain or unknown to plaintiff or plaintiff's counsel.
2. Parties.
In products liability action plaintiff properly pleaded uncertainty as to defendants' true names by including fictitious Doe
defendants and then clearly identifying target of complaint as party or parties who designed, manufactured, assembled and marketed,
advertised and otherwise supplied into the stream of committee defective moped. NRCP 10(a).
3. Parties.
Effective utilization of pleading rule requires pleading fictitious or Doe defendants in caption of complaint; pleading basis for
naming defendants by other than their true identity, and clearly identifying connection between intended defendants and conduct,
activity, or omission upon which cause of action is based; and exercising reasonable diligence in ascertaining true identity of intended
defendants and properly moving to amend complaint in order to substitute actual for the fictional. NRCP 10(a).
When an amendment is properly granted to add party not known at beginning of case, it automatically relates back to
commencement of action. NRCP 10(a), 21.
District court properly allowed products liability plaintiff to substitute manufacturer of moped as defendant after expiration of
period of limitations, where plaintiff had originally named Doe defendants and specified intent to later substitute for the Doe
defendants entities that designed, manufactured, assembled and marketed, advertised and otherwise supplied into the stream of
commerce the specifically identified, defective moped. NRCP 10(a), 15(c), 21.
Trial court committed at most harmless error in products liability action involving moped in not allowing manufacturer to apprise
jury that litigation instituted by plaintiff's witness resulted in determination by special verdict that moped the witness had driven was
not defective.
7. Evidence.
Trial court properly admitted testimony of products liability plaintiff's expert, and videotape prepared by the expert concerning
effect of wobbling front wheel on a motorcycle, in products liability case concerning alleged defective moped; it was made clear to jury
by instruction that purpose of videotape was to demonstrate dynamics involved in divergent wobble on front wheel of two-wheeled
vehicle, and that videotape had no connection with vehicle or event at issue.
8. Jury.
Defendant waived issue as to whether plaintiff and codefendant, who had filed claim against defendant alleging that accident was
caused by defect of product manufactured by defendant, constituted equivalent of one party because they both filed claims against
defendant, for purpose of peremptory challenges, where defendant agreed to allow all of plaintiff's peremptory challenges.
A products liability defendant was precluded from changing its position on appeal to allege that a codefendant and plaintiff should
be considered equivalent of one party for purposes of peremptory challenges.
10. Jury.
Trial court properly granted codefendant four peremptory challenges, despite fact that codefendant was no longer adverse to
defendant, and despite defendant's objection; trial judge gave defendant's counsel option of splitting his four challenges with the
codefendant, which counsel declined, and then counsel agreed that each party should have four peremptory challenges.
11. Costs.
Under both attorney fee statute and rule of court for award of attorney fees when obtaining judgment more favorable than offer of
judgment that was rejected, trial court cannot award counsel fees for legal services performed prior to date of offer of judgment. NRS
17.115, subd. 4; NRCP 68.
OPINION
Respondent, Frank Virostek, suffered permanent brain damage as a result of injuries
sustained on May 24, 1983, in an accident that occurred while riding his Sachs moped.
that occurred while riding his Sachs moped. The two primary issues on appeal concern the
effect of NRCP 10(a)
1
on the substitution of accurately identified parties for defendants
bearing fictitious names after the applicable statute of limitations has run, and the propriety of
the award of $300,000 in attorney's fees to Virostek. We are persuaded that existing case law
concerning the first issue is unsound or in need of clarification; we accordingly affirm the
district court's ruling on that issue against the position asserted by the appellant, Nurenberger
Hercules-Werke GMBH (Nurenberger). However, the district court erred in its award of
attorney's fees, thus necessitating a remand as to that issue.
FACTUAL AND PROCEDURAL BACKGROUND
Virostek was riding his Sachs moped at a normal rate of speed when the front wheel
started to wobble, causing Virostek to lose control, crash and strike his head on the surface of
the road. Two eye-witnesses observed Virostek riding the moped on the flat, smooth road at
an estimated speed of between 15 and 25 mph when the front wheel started to wobble or
shake violently. The witnesses saw Virostek unsuccessfully attempting to cope with the
problem, noting that he did so with both hands on the handlebars. As the moped crashed,
Virostek was thrown to the ground, suffering serious head injuries.
Virostek filed a complaint against various identified and fictitious defendants based upon a
theory of strict products liability. Nurenberger, the actual manufacturer of the moped, was not
named as a defendant until after the statute of limitations had run. Over objection, the district
court granted Virostek's motion to substitute Nurenberger as a party defendant.
Thirteen days prior to trial, Virostek offered to accept a judgment against Nurenberger in
the amount of $999,999.99. Nurenberger rejected the offer and the case proceeded to trial.
The jury awarded Virostek damages in the total sum of $1,100,869.79. The district court
thereafter granted Virostek's motion for attorney's fees, pursuant to NRS 17.115 and NRCP
68, in the amount of $300,000. Nurenberger filed motions for judgment notwithstanding the
verdict or in the alternative, for a new trial, both of which were denied.
DISCUSSION
On appeal, Nurenberger contends that reversal is warranted because of prejudicial error
involving the following issues.
__________

1
NRCP 10(a), in pertinent part, reads as follows:
In the complaint the title of the action shall include the names of all the parties . . . A party whose name is
not known may be designated by any name, and when his true name is discovered, the pleading may be
amended accordingly.
1. The substitution of Nurenberger as a party defendant after the expiration of the period
of limitations. On March 27, 1985, Virostek filed his complaint against the retailer of the
moped, Arnold Wratschko, d/b/a AMS Moped & Scooter Factory and AMS Import/Export.
2
He also named as defendants, Sachs Manufacturing Company, Does I-V, A-B partnerships
VI-X, and XYZ Corporations XI-XV. The complaint specified the intent to later substitute for
the fictitious defendants those entities that designed, manufactured, assembled and
marketed, advertised and otherwise supplied into the stream of commerce the specifically
identified, defective moped. Sachs Manufacturing Company was never served with the
complaint, and it is questionable whether such an entity exists.
3

Various motions were filed by the parties which need not be identified or chronicled in this
opinion. Suffice it to note that the district court ultimately granted Virostek's motion to
substitute Nurenberger as a party defendant in the place of one of the corporate doe
defendants, effective as of the date of the original complaint. Nurenberger filed an
unsuccessful motion to dismiss based upon a statute of limitations defense.
Nurenberger supports its position by invoking the rule announced by this court in
Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969), and expanded under
Lunn v. American Maintenance, 96 Nev. 787, 618 P.2d 343 (1980), and Driscoll v. Collins
Home Mfg. Corp., 103 Nev. 608, 747 P.2d 888 (1987), contending that Virostek failed the
test mandated by those decisions. We need not determine whether the requirements of
Servatius and other cases adhering to the Servatius rule were satisfied in the instant case, as
we have concluded that Servatius has been misapplied to cases governed by NRCP 10(a).
Virostek and the Nevada Trial Lawyers Association, participating in the briefing of this
case as amicus curiae, urge this court to reinvigorate the concept advanced in previous
decisions that have focused on the subtle but discrete difference between adding a party
under NRCP 15, and substituting a party under NRCP 10(a). We are advised that in so
doing, Servatius would be inapplicable to the instant case and Lunn would have to be
clarified or overruled for having confused the two rules. Although we agree that the
application of Servatius needs to be limited, and its expansion retrenched, we are not
persuaded that the substitution-addition distinction is particularly useful in providing clarity
and guidance in this area of the law.
__________

2
Wratschko settled with Virostek prior to trial for the sum of $100,000.

3
Although there were other legal entities that included the name Sachs, their identity and involvement are
not germane to this appeal.
[Headnote 1]
As a prelude to our analysis, we observe that our rules of civil procedure are to be
construed to secure the just, speedy, and inexpensive determination of every action. NRCP
1. We commence with the premise that meritorious causes of action should not be frustrated
where, despite reasonable diligence, the true identity of culpable parties is uncertain or
unknown to plaintiff or plaintiff's counsel. Indeed, our entire system of civil justice is
designed to provide an avenue of redress to parties injured by the actions of others who in law
and equity should be held accountable. Heretofore, unwary plaintiffs have been subject to the
loss of their remedies under pitfalls created by an unwarranted application of the Servatius
factors to situations involving the procedure contemplated by NRCP 10(a).
Servatius neither involved nor addressed the substitution of parties pursuant to NRCP
10(a). In Servatius the plaintiff was under the mistaken impression that she had named as
party defendant the entity legally responsible for her injuries. There was no indication that
uncertainty of identity had prompted the plaintiff to utilize the procedure provided by NRCP
10(a). Nevertheless, despite the mistake and the running of the statute of limitations, this
court crafted a rule that allowed for an amendment striking or dropping the wrong party
defendant and correctly identif[ying] a party defendant already before the court. Servatius,
85 Nev. at 374, 455 P.2d at 623. Because the Servatius court determined that the true
defendant was, in effect, already before the court, NRCP 21, addressing the dropping and
adding of parties, was never implicated in the court's decision. Servatius was, in every sense,
an opinion of limited application crafted to supply a basis for achieving equity and justice
where the true defendant, although unnamed, had actual knowledge of the institution of the
action, knew that it was the proper defendant, and was not in any way misled to its prejudice.
We therefore reaffirm Servatius in those limited situations typified by the facts in that case.
Unfortunately, subsequent to Servatius, we engrafted the Servatius factors onto certain
cases that concerned issues involving the substitution of parties under NRCP 10(a). Thus, in
Lunn v. American Maintenance Corp., 96 Nev. 787, 618 P.2d 343 (1980), where the plaintiff
sought to replace fictitious names with specifically identified parties pursuant to Rule 10(a),
we concluded that the criteria established in Servatius had not been satisfied. Similarly, in
Driscoll v. Collins Home Mfg. Corp., 103 Nev. 608, 747 P.2d 888 (1987), we observed,
citing Lunn, that certain restrictions have been placed on the issue of doe pleadings. Id. at
609, 747 P.2d at 889. Continuing, the Driscoll court stated that "Lunn held that the test
used in Servatius v. United Resort Hotels, S5 Nev. 371, 455 P.2d 621 {1969), was also the
proper test for evaluating the substitution of named defendants for doe defendants." Id.
at 609-10, 747 P.2d at SS9.
stated that Lunn held that the test used in Servatius v. United Resort Hotels, 85 Nev. 371,
455 P.2d 621 (1969), was also the proper test for evaluating the substitution of named
defendants for doe defendants. Id. at 609-10, 747 P.2d at 889. Although we denied relief to
Driscoll under the Servatius criteria despite the fact that his memory loss and inability to
recall the name of the tortfeasor's company were the direct result of his injuries, we also
observed that in an appropriate future case we might be disposed to reconsider the narrow
constraints we have placed on the availability of relief under Rule 10(a). Id. at 610, 747 P.2d
at 890.
Turning again to the efficacy of an analysis of whether parties have been added or
substituted as a source of discerning the appropriate rules of law, we are persuaded that
distinguishing between the two is often tenuous, imprecise, and conducive to result-oriented
determinations. For example, the amicus brief strains to validate the result in Driscoll by
concluding that the record contained nothing to show that plaintiff had an intent to sue any
particular defendant or class of defendants when he included the Doe allegations, therefore,
it is clear the attempt was to add a party, not substitute one. We find the argument
teleologically understandable but otherwise disingenuous. Obviously, Driscoll intended to sue
the party who owned the truck carrying the winch that was dislodged, causing him injury.
Driscoll's uncertainty concerning the identity of the responsible party prompted his resort to
the pleading latitude accorded by NRCP 10(a). In the instant case, it is equally obvious that
Virostek intended to sue the parties responsible for manufacturing, designing and marketing
the defective Sachs moped that caused his injuries, and that he was not totally certain of their
true identities.
We believe that the basic difficulty besetting NRCP 10(a) cases stems from an unduly
restrictive view of the scope of the rule as announced by this court in State ex rel. Dep't
Hwys. v. District Ct., 95 Nev. 715, 601 P.2d 710 (1979). We there said:
NRCP 10(a) does not refer to a party who is not known, but rather to a party whose
name is not known. It is designed to embrace the case where the plaintiff has in mind
the identity or description of the fictitiously named defendant but not his true name.
Id. at 717, 601 P.2d at 711. Under the constraints described above, the rule would generally
apply in such limited situations as where an injured party slipped on the floor of a corner
grocery store known to the plaintiff as a specific entity at a known location, but with
uncertainty as to the true name of the owner. Convinced that the rule was never intended to
have such limited scope, we hereby disapprove the quoted language of the cited case and
other of our cases that have perpetuated the same limitation.
scope, we hereby disapprove the quoted language of the cited case and other of our cases that
have perpetuated the same limitation.
[Headnote 2]
In Driscoll, a 1987 ruling, we solidified the confusion caused by applying the Servatius
test to cases governed by NRCP 10(a). Unfortunately, we failed to focus upon the clearer
perspective evinced by this court in Hill v. Summa Corporation, 90 Nev. 79, 518 P.2d 1094
(1974), where we stated:
In our view, when a plaintiff's counsel has properly utilized NRCP 10(a), adequately
alleging intended defendants and present uncertainty as to their names, stating the
names later in an amended pleading cannot be equated with adding totally new
parties to the action. Cf. Knight v. Witco Chemical Co., 89 Nev. 586, 517 P.2d 792
(1973). Then, at least, there is no reason an amendment stating the names should be
regarded differently under NRCP 15(a) than any other facts counsel may wish to correct
or clarify by filing an amended pleading once as a matter of course. By virtue of
NRCP 10(a), the designated but unnamed defendants are already parties in legal
contemplation. A subsequent amendment, stating their actual names, therefore relates
back to commencement of the action as provided in NRCP 15(c).
Id. at 81, 518 P.2d at 1095. The key language in Hill concerns the recognition by this court
that in NRCP 10(a) cases, the rule is properly utilized when counsel adequately alleg[es]
intended defendants and present uncertainty as to their names. Using the instant case as an
illustration, Virostek's counsel properly pleaded uncertainty as to defendants' true names by
including fictitious doe defendants as permitted by Rule 10(a), and then clearly identified the
target of the complaint as the party or parties who designed, manufactured, assembled and
marketed, advertised and otherwise supplied into the stream of commerce the defective
Sachs moped. It was thus clear who the intended defendants were notwithstanding the
uncertainty of their true identities.
Although Hill alluded to the fact that stating true identities in an amended pleading filed
pursuant to Rule 10(c) is not the equivalent of adding totally new parties to the action, it
cannot be gainsaid that when a party as yet unnamed is brought into an action, the name of
the identified party has been added to the complaint. In any event, it seems to us that there is
little to be gained in structuring a rule that hinges upon the ofttimes subtle distinction
between an added and a substituted party. The more logical distinction has to do with
whether the added or substituted party is rationally connected to the activity or omission upon
which an allegation of liability is based.
sion upon which an allegation of liability is based. Again, by way of illustration concerning
the instant case, if Virostek had sought to substitute a specific party for a doe defendant based
upon the allegation that the added party was responsible for constructing or maintaining a
hazardous road surface, a new and different theory of liability, it is clear that a totally new
party outside the legal contemplation of the original complaint would have been added. With
the foregoing authorities and analysis in mind, we are prepared to clarify the law with respect
to actions involving issues based upon fictitious name pleading under NRCP 10(a).
[Headnote 3]
First, and most obvious, the rule we now provide is applicable only where a plaintiff has
utilized the pleading latitude afforded by Rule 10(a). Second, it should be clear that fictitious
defendants may not be properly included in a complaint merely as a precautionary measure in
the event theories of liability other than those set forth in the complaint are later sought to be
added by amendment. In other words, there must be clear correlation between the fictitious
defendants and the pleaded factual basis for liability. This element of the rule supplies the
basis for recognizing the intended defendants who, in legal contemplation, are parties to the
cause of action. Third, and last, Rule 10(a) was not intended to reward indolence or lack of
diligence by giving plaintiffs an automatic method of circumventing statutes of limitations.
Plaintiffs utilizing the pleading latitude provided by Rule 10(a) must exercise reasonable
diligence in pursuing discovery and other means of ascertaining the true identity of the
intended defendants, and then promptly move to amend their complaints pursuant to Rule
10(a). Whether reasonable diligence has been exercised is a matter of law to be determined by
the district court. The right to amend and relate back should rarely be denied plaintiffs
irrespective of the extent of the delay whenever the intended defendant has sought in any way
to mislead or deceive the complaining party.
In summary, the effective utilization of Rule 10(a) requires: (1) pleading fictitious or doe
defendants in the caption of the complaint; (2) pleading the basis for naming defendants by
other than their true identity, and clearly specifying the connection between the intended
defendants and the conduct, activity, or omission upon which the cause of action is based;
and (3) exercising reasonable diligence in ascertaining the true identity of the intended
defendants and promptly moving to amend the complaint in order to substitute the actual for
the fictional. Satisfaction of all three of the aforementioned elements is necessary to the
granting of an amendment that relates back to the date of the filing of the original complaint.
[Headnote 4]
By way of further clarification, it is necessary to note that NRCP 10(a) is a self-contained
rule that is independent of NRCP 15(c) in its relation back effect. Despite our statement in
Hill indicating that a subsequent Rule 10(a) amendment providing the actual names of the
parties relates back to commencement of the action as provided in NRCP 15(c), Hill, 90
Nev. at 81, 518 P.2d at 1095 (emphasis added), we conclude that the latter rule has no
application to the process of adding or substituting names under NRCP 10(a). First, NRCP
15(c), by its terms, applies only to claims or defenses, neither of which may be logically
construed to include the adding or substituting of parties. Second, it seems evident to us that
under our Rule 10(a), the intended parties defendant, when properly identified as to activity,
conduct or omission, but not by certainty of name, are, as we indicated in Hill, already
parties in legal contemplation. Id. As a result, when a Rule 10(a) amendment is properly
granted, it automatically relates back to the commencement of the action.
In ruling as we have, it is readily evident that the three factors constituting the so-called
Servatius rule are not applicable to cases governed by Rule 10(a). Such cases do not require
that the intended defendant have actual notice of the institution of the action and knowledge
of the fact that it, he or she was the proper defendant in the action. Moreover, because we
have balanced the equities in favor of accountability and recompense over prejudice, the
element concerning prejudice to the unnamed defendant is also inapplicable to Rule 10(a)
cases except in the sense that a lack of reasonable diligence on the part of the plaintiff may
assume greater meaning where prejudice may be shown to exist.
Having concluded that distinctions between substituted and added parties are not
meaningful or dispositive in Rule 10(a) cases, it should be clear that such cases do not
implicate NRCP 21 concerning the adding or dropping of parties. We believe that the
availability of relief in Rule 10(a) cases may be reasonably predicted when analyzed in
accordance with the principles announced in the instant case.
[Headnote 5]
Whether Virostek may have survived a Servatius analysis on appeal is problematical and
of no moment in light of our ruling. On the record, however, there is an adequate basis for
concluding, as we do, that Virostek satisfied the test we have determined to be applicable to
Rule 10(a) situations. We therefore conclude that the district court did not err in refusing to
deny Virostek the benefit of the confluence of Rules 10(a) and 15(c), despite the
inapplicability of the latter rule.
[Headnote 6, 7]
2. The exclusion of evidence. Nurenberger contends that error resulted from the trial
court's rulings concerning the admissibility of certain evidence.
resulted from the trial court's rulings concerning the admissibility of certain evidence. In
particular, Nurenberger first complains that a plaintiff's witness, Matthew Asp, should not
have been permitted to testify concerning a wobble that he had experienced while using his
father's Sachs moped. Nurenberger advances two reasons in support of its contention of error:
(1) Nurenberger was not allowed to apprise the jury that litigation instituted by Asp resulted
in a determination by special verdict that the moped was not defective; and (2) there was no
substantial similarity between the Asp and Virostek trials. Although error may have occurred
in unduly circumscribing Nurenberger's entitlement to disabuse the jury of any unjustifiable
inferences derivable from Asp's testimony, we need not decide the issue because any error
would have been harmless in any event. There was substantial evidence presented at trial
proving that the front wheel on the Virostek moped wobbled, and that the unstable movement
caused the accident. Moreover, the trial court did not err in admitting the testimony of
Virostek's expert, Mark Ezra, and a videotape prepared by Ezra concerning the effect of a
wobbling front wheel on a Kawasaki motorcycle. It was made clear to the jury by instruction
that the purpose of the videotape was to demonstrate the dynamics involved in divergent
wobble on the front wheel of a two-wheeled vehicle, and that the videotape had no
connection with the vehicle or event at issue. The district court properly determined that the
videotape would be of assistance to the jury in understanding how Ezra arrived at his expert
opinion.
3. The additional peremptory challenges. Nurenberger insists that the trial court erred in
giving plaintiff's side eight peremptory challenges in empaneling the jury. Nurenberger notes
that the trial court must analyze the nature of the claim and determine which parties' interests
are adverse to each other. Distad v. Cobin, 633 P.2d 167, 171 (Wyo. 1981). According to
Nurenberger, Virostek and Wratschko constituted the equivalent of one party because they
both filed claims against Nurenberger alleging that the accident was caused by a defective
product manufactured by Nurenberger.
[Headnotes 8, 9]
Virostek correctly contends that the issue was waived because Nurenberger agreed to
allow all Wratschko peremptory challenges. See Ainsworth v. Combined Ins. Co., 105 Nev.
237, 774 P.2d 1003 (1989). We also agree with Virostek that Nurenberger is precluded from
changing its position on appeal. See Force v. Pecole, 77 Nev. 143, 360 P.2d 362 (1961).
[Headnote 10]
The trial court did not err in granting Wratschko four peremptory challenges.
Nurenberger's counsel initially objected to the aforementioned challenges because Wratschko
was no longer adverse to Nurenberger.
adverse to Nurenberger. The judge then gave Nurenberger's counsel the option of splitting his
four challenges with Wratschko, which counsel declined, stating that he would rather have
Wratschko and Nurenberger retain their own four peremptory challenges. The court then
suggested that each party have four peremptory challenges, and asked if counsel had any
problems with that. Nurenberger's counsel stated: That's fine, your honor. This issue is
without merit.
[Headnote 11]
4. The award of attorney's fees. The trial court erred in the methodology used in
determining the amount of attorney's fees awarded to Virostek. Attorney's fees were awarded
pursuant to NRS 17.115(4) and NRCP 68. Under both the statute and the rule of court, an
award of attorney's fees for obtaining a judgment more favorable than the offer of judgment
that was rejected is discretionary with the district court. However, in neither case may the trial
court award counsel fees for legal services performed prior to the date of the offer of
judgment. In the instant case, it is clear that the trial court based its award on legal services
rendered over the entire period of litigation.
4
The district court's award of attorney's fees for
work performed during the entire period of litigation was clear error.
5. Other issues. We have considered the other sub-issues raised by Nurenberger and
conclude that they are either without merit or need not be decided because of the nature of our
disposition of the primary issues.
CONCLUSION
For the reasons specified above, the judgment entered pursuant to the jury verdict is
affirmed, and the award of attorney's fees is vacated and remanded for redetermination in
accordance with the constraints set forth in this opinion.
Mowbray, C. J., Springer, Rose and Young, JJ., concur.
__________

4
In justifying the award of $300,000 in attorney's fees, the trial judge stated that:
[P]laintiff's counsel's estimate of the number of hours [800 to 1,000] spent on his client's case is
reasonable. Counsel first accepted the case in the spring of 1985, and the jury trial was concluded in late
October, 1989. Counsel was obviously well prepared at trial, had advanced more than $43,000 of his own
funds in preparing for trial, and demonstrated during the 2-week trial the kind of effort that is consistent
with hundreds of hours of pre-trial preparation.
Accordingly, under merely the lode-star test [number of hours spent multiplied by a reasonable fee],
the Court finds that plaintiff should be awarded attorney's fees of between $140,000 and $175,000.
____________
107 Nev. 885, 885 (1991) City of Las Vegas v. District Court
THE CITY OF LAS VEGAS, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for the County of Clark, and THE
HONORABLE JEFFREY SOBEL, District Judge, Respondent, and REGINALD
SLAUGHTER, Real Party in Interest.
No. 22546
THE CITY OF LAS VEGAS, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for the County of Clark, and THE
HONORABLE JEFFREY SOBEL, District Judge, Respondent, and DENNIS
BARTHOLOW, Real Party in Interest.
No. 22547
December 12, 1991 822 P.2d 115
Consolidated original petitions for writs of prohibition. Eighth Judicial District Court,
Clark County; Jeffrey D. Sobel, Judge.
State petitioned for writs of prohibition, challenging jurisdiction of district court to
entertain allegedly untimely appeals from judgments of conviction entered in municipal court.
The supreme court held that: (1) time for filing notices of appeal from municipal court
misdemeanor convictions did not commence when municipal court converted unpaid fines
into jail time, months after judgments of conviction were entered, and a district court
accordingly lacked jurisdiction to entertain untimely appeals challenging validity of
convictions, and (2) writs of prohibition would issue to preclude district courts from
entertaining defendants' untimely appeals.
Petitions granted.
Roy A. Woofter, City Attorney and Bruce W. Nelson, Deputy City Attorney, Las Vegas, for
Petitioner.
Rex Bell, District Attorney, Clark County, for Respondent.
Thomas F. Pitaro, Las Vegas, for Real Parties in Interest.
1. Criminal Law.
Time for filing notices of appeal from municipal court misdemeanor convictions did not commence when municipal court
converted unpaid fines into jail time, months after judgments of conviction were entered, and district court accordingly lacked
jurisdiction to entertain untimely appeals challenging validity of convictions, municipal court would not be considered to have
sentenced defendants anew or to have altered original sentences by imposing default imprisonment as method of collecting fines.
NRS 176.075.
2. Prohibition.
Writs of prohibition would issue to preclude district courts from entertaining defendants' untimely appeals from their judgments of
conviction in municipal court. NRS 34.320.
OPINION
Per Curiam:
These petitions for writs of prohibition challenge the jurisdiction of the district court to
entertain allegedly untimely appeals from judgments of conviction entered in the Las Vegas
Municipal Court.
Real parties in interest Reginald Slaughter and Dennis Bartholow (hereinafter
defendants) were each convicted in the Las Vegas Municipal Court of several misdemeanor
offenses, and fines were imposed. Defendants were given the option of performing
community service in lieu of the fines and did not appeal to the district court from their
judgments of conviction. Defendants did not pay their fines, nor did they perform community
service as required. Consequently, many months after the judgments of conviction were
entered, the municipal court converted defendants' unpaid fines into jail time.
1
See NRS
176.075.
Following the conversion of their fines into jail terms, defendants filed in the district court
notices of appeal from their underlying judgments of conviction. The matters were
consolidated in the district court. The state moved to dismiss the appeals on the sole ground
that the notices of appeal were not timely filed. The district court denied the state's motion,
specifically finding that defendants' time for filing timely notices of appeal commences from
the time that the municipal court converted their fines into jail time as the conversion of fines
into jail time was a substantial modification or amendment of the original sentence. These
petitions followed.
[Headnote 1]
The state argues that the municipal court did not sentence defendants anew, nor did it alter
their original sentences when it imposed default imprisonment as a method of collecting the
fines. We agree. [C]ommitment for failure to pay has not been viewed as a part of the
punishment or as an increase in the penalty; rather, it has been viewed as a means of enabling
the court to enforce collection of money that a convicted defendant was obligated by the
sentence to pay. Williams v. Illinois, 399 U.S. 235, 240 {1970); see People v. Saffore, 21S
N.E.2d 6S6 {N.Y. 1966) {conversion of a fine into a jail term for purposes of collection is
not a change in the original sentence).
__________

1
The time from judgment of conviction to the time the fines were converted to jail terms ranged from seven
to seventeen months. Pursuant to NRS 176.075, Slaughter was ordered to serve six months in jail; Bartholow
was ordered to serve 105 days in jail.
U.S. 235, 240 (1970); see People v. Saffore, 218 N.E.2d 686 (N.Y. 1966) (conversion of a
fine into a jail term for purposes of collection is not a change in the original sentence).
If a defendant were allowed to appeal from a judgment of conviction long after the
conviction was entered merely because a fine is converted to jail time as a coercive measure
to enforce payment, then a recalcitrant defendant might benefit greatly by his own
misconduct. Particularly with respect to judgments of the municipal court, allowing a late
appeal based on efforts to collect a fine would place considerable burden on the state,
because a case appealed from a municipal court is tried in the district court de novo. See NRS
5.073. The ability of the municipal court to enforce its judgments would be greatly
diminished.
We conclude, therefore, that the district court lacks jurisdiction to entertain defendant's
appeals challenging the validity of defendants' judgments of conviction. See Root v. City of
Las Vegas, 84 Nev. 258, 439 P.2d 219 (1968) (timely filing of a notice of appeal from a
judgment of the municipal court is jurisdictional); see also Jordan v. Director, Dep't. of
Prisons, 101 Nev. 146, 696 P.2d 998 (1985).
[Headnote 2]
A writ of prohibition may issue to arrest the proceedings of a district court exercising its
judicial functions, when such proceedings are in excess of the jurisdiction of the district
court. NRS 33.320. In this case, the district court is exceeding its jurisdiction by entertaining
defendants' untimely appeals from their judgments of conviction. Accordingly, we grant these
petitions. The clerk of this court shall forthwith issue writs of prohibition precluding the
district court from taking any further action with respect to defendants' appeals except for
dismissing those appeals.
2

__________

2
Nothing in this opinion shall prejudice defendants' rights to challenging the conversion of their fines to jail
terms by filing in the district court appropriate petitions for writs of habeas corpus.
____________
107 Nev. 888, 888 (1991) Jessop v. SIIS
MATT JESSOP, Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM, an Agency
of the State of Nevada, Respondent.
No. 21768
December 12, 1991 822 P.2d 116
Appeal from the district court's affirmance of an administrative appeals officer's decision
establishing appellant's average monthly wage for the purposes of calculating industrial
insurance benefits. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Administrative appeals officer established injured employee's average monthly wage for
purposes of calculating industrial insurance benefits based on employment histories of three
co-employees. The employee appealed. The district court affirmed. Employee appealed. The
supreme court held that injured employee's average monthly wage was erroneously
established based on average earnings of co-workers which did not predate injury.
King, Clark, Gross & Sutcliffe, Las Vegas, for Appellant.
R. Scott Young, General Counsel, Carson City; William A. Zeigler, Associate General
Counsel, Las Vegas, for Respondent.
To overturn administrative appeals officer's decision establishing injured employee's average monthly wage for purposes of
calculating industrial insurance benefits, supreme court may find either that decision was not supported by substantial evidence or that
it was based upon incorrect conclusion of law.
Earnings of injured employee's co-workers who were employed after injury occurred could not be used to establish injured
employee's average monthly wage for purposes of calculating industrial insurance benefits.
OPINION
Per Curiam:
This appeal challenges the method by which an appeals officer from the State Industrial
Insurance System (SIIS) determined Matt Jessop's average monthly wage for the purpose of
calculating his industrial insurance benefits.
Matt Jessop incurred a compensable injury to his back on March 24, 19S9, during the
first week of his employment as a carpenter for Dillion Enterprises.
107 Nev. 888, 889 (1991) Jessop v. SIIS
March 24, 1989, during the first week of his employment as a carpenter for Dillion
Enterprises. On September 7, 1989, an administrative hearing was held to determine Jessop's
benefit level. At the hearing, a C-3 form submitted by Jessop's employer on April 5, 1989,
was presented, indicating that Jessop was hired to work seven days per week, from 6:00 a.m.
to 4:00 p.m., for twelve dollars an hour, and that Jessop did not receive piecework. However,
Jessop's employer submitted a conflicting BCS-8 form, dated April 27, 1989, which stated
that Jessop was hired to do piecework and that his hours of employment varied. As a result of
this conflicting evidence, the hearing officer directed SIIS to conduct an audit for the purpose
of accurately determining Jessop's average monthly wage.
SIIS investigated Jessop's income by examining his payroll history at the time of the
accident and the employment histories of three co-employees who were hired to do
piecework.
1
Two of the three co-employees used for comparison had worked a total of two
weeks and were employed subsequent to the date of Jessop's injury. The third co-employee
was employed for a five week period extending from the four weeks preceding Jessop's injury
to the week after. Based upon the payroll histories of Jessop's co-workers, SIIS determined
that Jessop was hired as a pieceworker and calculated his average monthly wage to be
$776.94. The administrative appeals officer accepted this calculation as the average monthly
wage, relying upon NAC 616.678(6) for her conclusions of law.
Jessop appealed the decision of the appeals officer to the district court, claiming that the
appeals officer did not properly interpret the statutes and regulations addressing the
calculation of average monthly wage and that the evidence in the record was insufficient to
support the conclusion. The district court affirmed, finding substantial evidence to support the
administrative appeals officer's decision. Jessop appealed to this court, and we reverse.
[Headnote 1]
To overturn the administrative appeals officer's decision, this court may find either that the
decision was not supported by substantial evidence or that it was based upon an incorrect
conclusion of law. See, e.g., Kraft v. Nev. Emp. Sec. Dep't, 102 Nev. 191, 194, 717 P.2d 583,
584 (1986); Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984).
[Headnote 2]
The determination of the appeals officer in this case was based upon NAC 616.678(6),
which provides: If earnings are based on piecework and a history of earnings is
unavailable for a period of at least 4 weeks, the wage must be determined as being equal
to the average earnings of other employees doing the same work.
__________

1
Jessop continued to work for six consecutive weeks following his injury.
107 Nev. 888, 890 (1991) Jessop v. SIIS
If earnings are based on piecework and a history of earnings is unavailable for a
period of at least 4 weeks, the wage must be determined as being equal to the average
earnings of other employees doing the same work.
Because Jessop had only worked at his job for one week prior to his injury, and because the
results of the SIIS audit showed Jessop to be a pieceworker, the appeals officer calculated
Jessop's monthly wage based upon that of his co-workers.
We conclude that the application of subsection (6) of NAC 616.678 was unreasonable in
the instant case. The general rule for calculating an employee's average monthly wage for the
purpose of determining insurance benefits is that earnings are to be calculated based on a
history of that employee's earnings for a twelve week period. See NAC 616.678(1). NAC
616.678(8) states that the earnings history should be the twelve weeks prior to injury. Where
such a history is unavailable, other subsections of NAC 616.678 provide additional guidelines
appropriate to various situations. For example, NAC 616.678(6) provides the general rule
applicable to pieceworkers. However, these guidelines are not absolute NAC 616.678(7)
provides alternate rules to be applied when the methods described by the other subsections
cannot be applied reasonably and fairly.
2
This is the situation with which we are now
presented.
NAC 616.678(6) was the appropriate section to refer to first because the hearing officer
determined that Jessop was a pieceworker. The four weeks earning history to which section
(6) refers is an earnings history prior to the injury. This comports with the general approach
of SIIS and the statutory scheme used to determine a person's earnings by examining the time
period before injury. Since Jessop does not have a four week earnings record before the
injury, we are directed by section (6) to determine the claimant's monthly wage by the average
earnings of the other employees doing the same work. Again, these earnings should predate
the injury. Since two of the three workers used to determine Jessop's wage were only
employed subsequent to his injury, we do not have a history of employees' earnings prior to
the injury. Consequently, it is inappropriate to use section (6) in this case, and resort should
be made to section {7).
__________

2
NAC 616.678(7) states in full:
If these methods of determining a period of earnings cannot be applied reasonably and fairly, an
average monthly wage will be calculated by the insurer at 100 percent of:
(a) The sum which reasonably represents the average monthly wage of the employee as defined in
NAC 616.670 to 616.688, inclusive, at the time his injury or illness occurs; or
(b) The hourly wage on the day the injury or illness occurs, calculated by using the projected working
schedule.
107 Nev. 888, 891 (1991) Jessop v. SIIS
this case, and resort should be made to section (7). Therefore, we reverse with instruction to
remand the matter to SIIS for a redetermination of average earnings.
Mowbray, C. J., Rose and Steffen, JJ., and Lehman, D. J.,
3
concur.
Respectfully, I dissent. I would remand for a redetermination under NAC 616.678(6).
The majority concedes that NAC 616.678(6) was the appropriate section to consult in
calculating Jessop's earning history. The majority states that because Jessop did not have a
four-week earning history prior to the injury, it was appropriate for the appeals officer to
calculate Jessop's wage based on the earnings of other employees performing the same work.
However, the majority holds that it was error for the appeals officer to use earning figures
from co-employees which did not predate Jessop's injury. The majority at this point takes an
illogical turn in its analysis. Instead of remanding the case for a recalculation of Jessop's
earnings using co-workers' wage information which predated Jessop's injury, the majority
advocates ignoring the section altogether and applying subsection (7) stating that the
application of subsection (6) of NAC 616.678 was unreasonable in the instant case. I do not
see how using post-injury earning data from Jessop's co-workers renders the application of
subsection (6) unreasonable or unfair. Additionally, I do not see the logic in failing to remand
the case for recalculation based on subsection (6) using pre-injury data of Jessop's
co-workers.
I also disagree with the majority's instruction that the appeals officer should use subsection
(7) in recalculating Jessop's wage. Subsection (7)(a) refers the appeals officer to NAC
616.670 through 616.688. The only provision within those sections which applies to Jessop as
a pieceworker with less than four weeks work history is NAC 616.678(6). The majority states
that subsection (6) is unreasonably applied in this case and directs the appeals officer not to
use the section. Subsection (7)(b) instructs the appeals officer to calculate Jessop's average
monthly wage using the hourly wage on the date of injury. Jessop is a pieceworker whose
wage cannot be reduced to an hourly figure. Therefore, subsection (7)(b) is inapplicable to
this case. I am not sure on what the majority would have the appeals officer base the
calculation, if the officer cannot use either subsection (6) for pieceworkers or subsection
{7){b) because Jessop's earnings cannot be reduced to an hourly wage.
__________

3
The Honorable Jack Lehman, Judge of the Eighth Judicial District Court, was designated by the Governor
107 Nev. 888, 892 (1991) Jessop v. SIIS
ers or subsection (7)(b) because Jessop's earnings cannot be reduced to an hourly wage.
Without expressly stating so, the majority impliedly would have the appeals officer
calculate Jessop's average wage using Jessop's post-injury earnings. NAC 616.678(8)
provides: The period used to calculate the average monthly wage must consist of consecutive
days, ending on the date on which the accident or disease occurred, or the last day of the
payroll period preceding the accident or disease if this period is representative of the average
monthly wage. (Emphasis added.) The majority apparently advocates using employment
history which occurs after the injury to determine the average monthly wage. The majority's
view of history flies in the face of the express directive of NAC 616.678(8).
Public policy dictates that it is unwise to allow history to occur after the injury. The
majority's interpretation of a worker's earning history is subject to manipulation which could
unjustly increase benefits. The employer can easily hire the worker back, after an injury, at an
inflated wage in order to boost the calculation of the worker's average wage. An employer is
not necessarily disadvantaged by inflating the worker's wages upon rehiring. There is no
disadvantage to employers whose businesses are closing or employers who are about to
declare bankruptcy because they will no longer be paying into SIIS. Likewise, employers who
are already paying the statutory maximum premium (or close to it) will not be harmed by
hiring the injured worker back at a higher wage because they will not be required to pay more
for the insurance coverage.
The majority construes NAC 616.678 contrary to its clear meaning. Where the language of
a worker's compensation statute is clear and unambiguous, this court is not empowered to go
beyond the face of the statute and lend it a construction contrary to its clear meaning. Spencer
v. Harrah's Inc., 98 Nev. 99, 101-102, 641 P.2d 481, 482, (1982). It is not within this court's
province to question the wisdom of the statute, even where the court is sympathetic to a
worker's claim. Id.
Further, during oral argument, SIIS informed this court that its practice is to determine a
worker's average monthly wage using earnings up to the date of the injury. The construction
placed on a statute by the agency charged with the duty of administering it is entitled to
deference. Jones v. Rosner, 102 Nev. 215, 217, 719 P.2d 805, 806 (1986).
The majority's method of calculation will result in an undue administrative burden to SIIS
because a worker's duties and pay often change once the worker returns to work after an
injury. Unfair and unreasonable results may occur as well. Workers may be disadvantaged if
their pay decreases upon returning to work, especially for pieceworkers who may not be
able to produce at their pre-injury level.
107 Nev. 888, 893 (1991) Jessop v. SIIS
be disadvantaged if their pay decreases upon returning to work, especially for pieceworkers
who may not be able to produce at their pre-injury level.
The period used to calculate the average monthly wage ends on the date of the injury.
NAC 616.678(8). If a history of earnings for a pieceworker is unavailable for at least four
weeks, the appeals officer must calculate the average monthly wage based on the earnings of
other employees doing the same work. NAC 616.678(6). The majority's method of calculating
the average monthly wage is contrary to the regulations, is open to manipulation, and may
result in unfair and unreasonable results. I therefore dissent.
____________
107 Nev. 893, 893 (1991) Hartz v. Mitchell
MARVIN DALE HARTZ, MAXINE HARTZ, DIANE YVONNE THOLL, and HAZEL
HARTZ, Widow of HERBERT WAYNE HARTZ, Deceased, Appellants, v. RICKY
DEE MITCHELL, MARY D. FRANICK, ANNA FRANICK, THRIFTY
RENT-A-CAR SYSTEM, INC., McCOOL, ENTERPRISES, dba THRIFTY
RENT-A-CAR, and SECURITY INSURANCE COMPANY OF HARTFORD,
Respondents.
No. 21333
December 12, 1991 822 P.2d 667
Appeal from judgment of the district court.
1
Eighth Judicial District Court, Clark County;
Thomas A. Foley, Judge.
Lessees brought action against rental car agency and its insurer to recover for injuries
sustained in car accident. The district court granted summary judgment for defendants, and
lessees appealed. The supreme court held that agency and its insurer did not have duty to
offer or provide uninsured/underinsured motorist coverage to lessees.
Affirmed.
George T. Bochanis, Las Vegas, for Appellants.
Thorndal, Backus, Maupin & Armstrong, and Deborah A. Mann, Las Vegas, for
Respondents.
__________

1
The district court granted partial summary judgment and later entered a stipulated judgment resolving all
claims. As noted by this court in an earlier order issued on November 14, 1990, the procedural devices by which
appellants attempted to obtain finality, including a motion to dismiss, served to unduly complicate the issue of
appellate jurisdiction. A final order entered by the district court on May 8, 1990, is treated here as a summary
judgment in respondents' favor.
1. Insurance.
Automobile insurers are required to offer their insureds uninsured motorist/underinsured motorist coverage equal to limits of
insureds' bodily injury coverage. NRS 687B.145, subd. 2; NRS 690B.020, subds. 1, 2 (1985).
2. Insurance.
Rental car agency did not constitute insurance agent, and thus was not subject under statute to regulation and mandatory
obligation to offer uninsured motorist/underinsured motorist coverage through insurance contracts. NRS 683A.030, subd. 1.
3. Statutes.
When language of statute is plain and unambiguous, court may not add to or extend its ordinary meaning.
4. Insurance.
Uninsured and underinsured motorist coverage may be validly rejected by lessor of rental vehicle. NRS 690B.020, subd. 1 (1985).
5. Insurance.
Rental car agency declined to purchase both uninsured motorist and underinsured motorist coverage from its insurer, even though
form containing rejection covered only uninsured motorist coverage. NRS 690B.020, subd. 1 (1985).
6. Insurance.
Rental car agency and its insurer did not have duty to offer or provide uninsured/underinsured motorist coverage to lessees, where
agency had validly declined to purchase both uninsured and underinsured coverage from insurer, and such action was binding on
lessees. NRS 687B.145, subd. 2; NRS 690B.020, subds. 1, 2, (1985).
OPINION
Per Curiam:
Appellants were tragically victimized by an intoxicated driver who inflicted death and
injury on their family. Their quest for relief in the form of damages has been substantially
frustrated as neither the tortfeasor nor the liability coverage applicable to the vehicle he was
driving provided adequate sources of compensation to cover appellants' losses. Appellants
therefore turned to the rental car agency from which they obtained the vehicle they were using
at the time of the collision, and its insurer for additional sources of recovery.
Basically, appellants contend that respondents Security Insurance Company of Hartford
(Security) and McCool Enterprises, dba Thrifty Rent-A-Car (Thrifty) and Thrifty Rent-A-Car
System, Inc.
2
had statutory and contractual duties to offer or provide uninsured/underinsured
motorist (UM/UIM) coverage to appellants, and that respondents breached their
respective duties.
__________

2
Thrifty Rent-A-Car System, Inc. is a corporate entity unrelated to McCool Enterprises, dba Thrifty
Rent-A-Car. The district court granted the corporation's motion to quash and correctly determined that Thrifty
Rent-A-Car System, Inc. was never a party to the action below. Obviously, despite its appearance in the case
caption, it is not a party to this appeal.
lants, and that respondents breached their respective duties. After careful review, we conclude
that the district court was correct in granting summary judgment to respondents, and therefore
affirm.
In 1985, members of the Hartz family arrived in Las Vegas for a family vacation. Herbert
Wayne Hartz rented a vehicle from Thrifty. Appellants contend that although the Thrifty
rental agreement offered liability insurance and any other insurance under applicable law,
Herbert Hartz was not offered UM/UIM coverage as required by Nevada law. See NRS
687B.145(2);
3
NRS 690B.020(1) and (2).
4

[Headnote 1]
The referenced Nevada statutes require insurance companies to offer to their insureds
UM/UIM coverage equal to the limits of the insured's bodily injury coverage. See Baker v.
Criterion Ins. Co., 107 Nev. 25, 27, 805 P.2d 599, 600 (1991). NRS 690B.020(1) permits
only written rejection of UM insurance. NRS 687B.145, which covers the statutory
obligations applicable to both uninsured and underinsured motorist coverage, expressly
refers to NRS 690B.020, the earlier uninsured motorist statute.
__________

3
NRS 687B.145(2), as it existed when this cause of action arose, provided:
2. Insurance companies doing business in this state must offer uninsured motorist coverage equal to
the limits of bodily injury coverage sold to the individual policyholder. Uninsured motorist coverage
must include a provision which enables the insured to recover up to the limits of his own coverage any
amount of damages for bodily injury from his insurer which he is legally entitled to recover from the
owner or operator of the other vehicle to the extent that those damages exceed the limits of the bodily
injury coverage carried by that owner or operator.

4
The 1985 versions of NRS 690B.020(1) and (2) provided as follows:
1. No policy insuring against liability arising out of the ownership, maintenance or use of any motor
vehicle may be delivered or issued for delivery in this state with respect to any motor vehicle registered
or principally garaged in this state unless coverage is provided therein or supplemental thereto for the
protection of persons insured thereunder who are legally entitled to recover damages, from owners or
operators of uninsured or hit-and-run motor vehicles, for bodily injury, sickness or disease, including
death, resulting from the ownership, maintenance for use of the uninsured or hit-and-run motor vehicle;
but no such coverage is required in or supplemental to a policy issued to the State of Nevada or any
political subdivision thereof, or where rejected in writing, on a form furnished by the insurer describing
the coverage being rejected, by an insured named therein, or upon any renewal of such a policy unless
the coverage is then requested in writing by the named insured. The coverage required in this section may
be referred to as uninsured vehicle coverage.
2. The amount of coverage to be provided must be not less than the minimum limits for bodily injury
liability insurance provided for under the Motor Vehicle Safety Responsibility Act (chapter 485 of NRS),
but may be in an amount not to exceed the bodily injury coverage purchased by the policyholder.
(Emphasis added.)
to both uninsured and underinsured motorist coverage, expressly refers to NRS 690B.020, the
earlier uninsured motorist statute. The latter statute is silent as to whether a rejection of
underinsured motorist protection must be in writing.
Thrifty had previously rejected UM insurance coverage on an endorsement form provided
by its liability insurer, Security. Therefore, the Thrifty rental agreement does not provide its
customers with an option to purchase UM/UIM coverage.
5
Thrifty, having effectively
rejected UM coverage under its own master policy, had no such coverage to offer its
customers.
Unfortunately, two days after renting the Thrifty vehicle, Herbert Hartz, the driver of the
Thrifty vehicle, was killed in a collision with an intoxicated driver. Three other members of
the Hartz family were severely injured. The family was eventually paid the $30,000 statutory
minimum liability carried by the intoxicated driver. See NRS 485.185; NRS 485.105.
Obviously, the family's losses and damages substantially exceeded the available liability
coverage applicable to the multi-vehicle, multi-claimant accident.
Nevada has a strong public policy interest in assuring that individuals who are injured in
motor vehicle accidents have a source of indemnification. Our financial responsibility law
reflects Nevada's interest in providing at least minimum levels of financial protection to
accident victims.
[Headnote 2]
An insurance agent in Nevada is subject to statutory regulation, licensing, administrative
standards and financial safeguards.
6
Automobile rental agents are not expressly subject to
the provisions of NRS Chapter 683A which regulates insurance representatives in this state.
Moreover, Thrifty does not fall within Nevada's statutory definition of an insurance agent,
which otherwise would have subjected Thrifty to regulation and a mandatory obligation to
offer UM/UIM insurance through insurance contracts.
__________

5
The rental agreement did not specifically state that this protection was not available. There is no contention
in the record on appeal that any Thrifty employee expressly represented to Herbert Hartz that UM insurance was
provided by the automobile rental agreement.

6
NRS 683A.030(1) defines a resident agent as follows:
An agent is an individual, firm or corporation appointed by an insurer to solicit applications for
insurance or annuity contracts or to negotiate for such contracts on its behalf, and if authorized to do so
by the insurer, to effectuate and countersign insurance contracts.
NRS 683A.040(1) defines the role of a resident broker:
A broker is an individual, firm or corporation who, not being an agent of the insurer, as an
independent contractor and on behalf of the
[Headnote 3]
When the language of a statute is plain and unambiguous, a court may not add to or extend
its ordinary meaning. City Council of Reno v. Reno Newspapers, 105 Nev. 886, 891 784 P.2d
974, 977 (1989); Cirac v. Lander County, 95 Nev. 723, 729, 602 P.2d 1012, 1015 (1979).
Impliedly, the legislature recognized that automobile rental agencies offer their customers the
opportunity to acquire such coverage as the rental agency itself has, as a supplement to the
customers' own insurance.
7
Automobile rental agencies thus constitute, in effect,
intermediaries between their rental customers and the latters' own insurers.
[Headnotes 4-6]
In Nevada, uninsured, and by extension, underinsured, motorist coverage may be validly
rejected by the lessor of a rental vehicle. NRS 690B.020(1); see also 2 I. Schermer,
Automobile Liability Insurance 23.03[1A] (1991). Thrifty validly rejected Security's offer
of UM insurance in a signed writing. Although the form containing Thrifty's rejection
covered only UM insurance, we have previously held that when insurers are required to
make uninsured motorist coverage available, . . . that coverage must include coverage against
underinsured motorists. Hall v. Farmers Ins. Exch. 105 Nev. 19, 21, 768 P.2d 884, 885
(1989) (underinsured motorist coverage is merely a component of uninsured motorist
coverage and does not exist separately) (emphasis in text). In clear effect, Thrifty declined to
purchase both UM and UIM insurance from Security, its insurer. Furthermore, the lessor's
action has been held to be binding upon the lessee, even when the lessee was not aware of
the rejection.S See Darnaby v. Greenstein Trucking Co.,
__________
insured solicits, negotiates or procures insurance or annuity contracts or the renewal or continuation
thereof for insureds or prospective insureds other than himself.
Nevada's statutory scheme differs from that cited in Moon v. Guarantee Ins. Co., 764 P.2d 1331 (Okla.
1988), a case upon which appellants vigorously rely. The Moon court relied in part on Okla. Stat. tit. 36,
1422(3) which states that [a]ny person not duly licensed as an insurance agent . . . who solicits a policy of
insurance on behalf of an insurer shall be deemed as acting as an insurance agent within the intent of this act, . . .
and such company by issuing such policy of insurance shall thereby accept and acknowledge such person as its
agent in such transaction. Moon, 764 P.2d at 1336. In addition, the court cited Okla. Stat. tit. 36 1423(A)
which provides that [e]very agent . . . who solicits or negotiates an application for insurance of any kind shall . .
. be regarded as representing the insurer . . . . Moon, 764 P.2d at 1336.

7
Thrifty maintains that the majority of individuals renting automobiles also own vehicles covered by
insurance; as a result, a Nevada resident or a resident of a state with a statutory scheme similar to that of Nevada,
has mandatory liability insurance and has been offered uninsured motorist coverage up to the limits of liability
coverage. Any such coverage would apply to the insured's use of the rental vehicle.
when the lessee was not aware of the rejection.
8
See Darnaby v. Greenstein Trucking Co.,
425 So.2d 656, 658 (Fla.Dist.Ct.App. 1983).
Despite the additional hardship appellant may suffer, we are forced to conclude that
Thrifty did not violate either a contractual or a statutory duty to appellants as a matter of law.
It follows, therefore, that since Security dutifully offered UM coverage to Thrifty, Security
was also entitled to summary judgment. Accordingly, the judgment entered below is affirmed
in its entirety.
Mowbray, C. J., Springer, Steffen and Young, JJ., and Christensen, D. J.
9
, concur.
___________
107 Nev. 898, 898 (1991) State, Dep't Transp. v. Central Telephone
STATE OF NEVADA, on relation of its Department of Transportation, Appellant, v.
CENTRAL TELEPHONE COMPANY OF NEVADA, Respondent.
No. 21201
December 20, 1991 822 P.2d 1108
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Nancy A.
Becker, Judge.
Upon being sued by pedestrian who tripped and fell on pavement, Nevada Department of
Transportation (NDOT) cross-claimed for indemnity against company that installed television
conduit beneath intersection where pedestrian was injured. The district court granted
summary judgment in favor of conduit company based on statutes of repose, and NDOT
appealed.
__________

8
Other cases reaching a similar result are: Lapp v. Transport Indem. Co., 210 Cal. Rptr. 135, 136
(Cal.Ct.App. 1985) (truck rental company properly waived uninsured motorist coverage and the waiver was
binding upon the truck lessees who were permissive users lacking any direct contractual relationship with the
insurer); Darnaby v. Greenstein Trucking Co., 425 So.2d 656, 658 (Fla.Dist.Ct. App. 1983) (truck lease did not
lead the lessee to believe that the lessor would provide uninsured motorist coverage); cf. Shaffer v. Southern
Union Gas Co., 539 P.2d 902 (Ariz.1975) (legislature did not intend to give an additional insured the right to
accept or reject uninsured motorist coverage when he did not pay the premium or contract for the coverage); but
see Quittem v. National Car Rental Systems, 582 So.2d 1337, 1340 (La.Ct.App. 1991) (rental car agencies must
offer lessees the opportunity to accept or reject UM coverage); MacKenzie v. Avis Rent-a-Car Systems, 369
So.2d 647, 648 (Fla.Dist.Ct.App. 1979) (summary judgment was improper where the rental agreement was
ambiguous as to the key issue of whether UM coverage is a standard provision).

9
The Honorable Carl J. Christensen, Judge of the Eighth Judicial District, was designated by the Governor
to sit in the place of The Honorable Robert E. Rose, Justice. Nev. Const., art. 6, 4.
company based on statutes of repose, and NDOT appealed. The supreme court held that: (1)
genuine issue of material fact, precluding summary judgment, existed as to whether conduit
company had duty to maintain right-of-way in safe condition, and (2) statutes of repose were
inapplicable to relieve conduit company from duty to indemnify NDOT.
Frankie Sue Del Papa, Attorney General, and Roger D. Comstock, Deputy Attorney
General, Carson City, for Appellant.
Lefebvre, Barron & Oakes and Thomas J. Vivone, Las Vegas, for Respondent.
1. Judgment.
In Nevada Department of Transportation's (NDOT's) indemnity action against company that excavated and installed underground
television conduit beneath intersection where pedestrian was injured, genuine issue of material fact, precluding summary judgment,
was present as to whether conduit company had duty, pursuant to its permit to install conduit, to maintain right-of-way in safe
condition.
Nevada Department of Transportation's (NDOT's) indemnity action against company that excavated and installed underground
television conduit beneath intersection where pedestrian was injured was not barred by statutes of repose where conduit company had
ongoing obligation, pursuant to its permit, to maintain conduit in good and safe condition and to indemnify NDOT for injuries
resulting from exercise of its permit to install conduit. NRS 11.203-11.205.
OPINION
Per Curiam:
The Nevada Department of Transportation (NDOT) agreed to issue Central Telephone
Company of Nevada (CENTEL) a revocable encroachment permit in 1966. The permit
allowed CENTEL to install an underground conduit beneath the intersection of Las Vegas
Boulevard and Desert Inn Road. In exchange for the permit, CENTEL agreed to indemnify
NDOT from any personal injury liability arising from CENTEL's actions. CENTEL was to
indemnify for any injury or damage directly resulting from exercise of the permit (not limited
to negligence). CENTEL substantially completed the project by 1968.
In 1984, a pedestrian tripped and fell on the pavement over the area where CENTEL had
installed the conduit. The pedestrian sued NDOT, and NDOT cross-claimed against CENTEL
to enforce the indemnity agreement. CENTEL successfully sought summary judgment based
upon Nevada's statutes of repose.
summary judgment based upon Nevada's statutes of repose. Having concluded that summary
judgment was unwarranted, we reverse.
FACTS
In 1966, NDOT issued a revocable encroachment permit to CENTEL. The permit allowed
CENTEL to excavate and install an underground conduit for KLAS-TV beneath the
intersection of Desert Inn Road and U.S. Highway 91 (Las Vegas Boulevard).
A significant provision of the permit, critical to the resolution of this appeal, is an
indemnity agreement between NDOT and CENTEL. The provision reads:
The Permittee [CENTEL] shall indemnify the State of Nevada and save it harmless
from and against any liability for injury to person or damage to property, whether said
property may belong to the State or to third parties to which injury or damage is
sustained by reason of any cause directly resulting from the exercise of the privilege
herein granted.
The Permittee shall make any and all repairs to the installed underground conduit by
authority given in this permit as soon as the need therefore arises, and shall at all times
maintain said underground conduit in good and safe condition.
(Emphasis added.) CENTEL substantially completed the project no later than 1968.
In 1984, Helen Stolfi fell at the pedestrian crosswalk on Desert Inn Road. She tripped on a
patch of depressed pavement exactly above the place where CENTEL had installed the
conduit in 1966.
1

Mrs. Stolfi and her husband sued NDOT on October 22, 1986, and later amended their
complaint to include CENTEL as a party defendant. NDOT, citing its rights of indemnity
under the revocable permit, tendered the defense of the action to CENTEL. CENTEL refused,
contending that the permit did not impose an obligation on CENTEL to maintain the surface
of the roadway. NDOT thereafter cross-claimed against CENTEL, asserting its entitlement to
contractual and implied indemnity.
CENTEL moved for summary judgment of grounds that the Nevada statutes of repose
precluded NDOT's cross-claim, because NDOT was seeking relief 19 years after CENTEL
had substantially completed installation of the conduit. The trial court agreed and entered
summary judgment against NDOT.
__________

1
CENTEL does not admit she tripped on the exact area, but it claims this point is irrelevant on appeal.
DISCUSSION
It is elementary 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.
[Citations omitted.] 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, 292, 774 P.2d 432, 433 (1989).
[Headnotes 1, 2]
Summary judgment was improper for at least two reasons. First, there is a genuine issue of
material fact as to whether CENTEL had a duty to maintain the right-of-way in a safe
condition. Second, even if CENTEL had no duty of maintenance, a claim of immunity
attributable to statutes of repose is unavailing.
Nevada's statutes of repose prohibit actions 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 if commenced after specific periods of
time. NRS 11.203-.205. The statutes protect only those defendants falling within one of the
listed categories.
The permit issued in this case burdens CENTEL with the obligation of repairing the
underground conduit, and maintaining it in good and safe condition. The obligation is
ongoing and unconfined to a period of time specified in the revocable encroachment permit.
Moreover, we question, without presently deciding, whether the statutes of repose may be
read so broadly as to afford protection to parties charged with the basic duties of repair or
maintenance of a right-of-way. It is therefore questionable whether CENTEL even qualifies
for the protection afforded by the statutes of repose.
Furthermore, the agreement between CENTEL and NDOT was one of indemnity.
CENTEL's duty of performance does not arise until an event occurs that actuates the
provision for indemnification. This type of contract is not covered by the statute.
CENTEL cannot successfully assert as a matter of law that it did not have a duty of repair
or maintenance, because the language of the encroachment permit provides otherwise.
Therefore, under the ongoing obligation contained in the permit, CENTEL's only apparent
avenue of avoiding the continuing responsibility to maintain would be through the
presentation of evidence of an amendment to the permit that would alter or modify its
obligations.
tions. Accordingly, there is at the very least a genuine issue of material fact on the point.
Wiltsie, 105 Nev. at 292, 774 P.2d at 433. On summary judgment, NDOT was entitled to have
all inferences drawn in its favor, including the inference that, barring evidence to the contrary,
CENTEL owed a duty to repair and maintain the intersection. Therefore, summary judgment
was inappropriate.
Moreover, CENTEL's obligation to indemnify the State of Nevada is unaffected by the
statutes of repose because it is coextensive with the period of the encroachment authorized by
the permit. If, in fact, Helen Stolfi's injuries were caused by CENTEL's failure to maintain a
safe and solid surface directly above its conduit, and the evidence reveals that the unsafe
condition resulted from the presence or installation of the conduit, NDOT, if found liable for
damages, would be entitled to indemnification from CENTEL. Under such circumstances it
would not be relevant whether CENTEL could be viewed under the statutes of repose as
having designed, planned, supervised or observed the construction of the right-of-way.
Equally irrelevant would be the issue of whether CENTEL's installation of the conduit would
qualify as an improvement to real property.
In view of our ruling, we reverse the summary judgment entered below, and remand this
case for further proceedings consistent with this opinion.
____________
107 Nev. 902, 902 (1991) Squires v. Sierra Nev. Educational Found.
BRANDON SQUIRES, a Minor, By His Guardian and Next Friend BURKE SQUIRES,
BURKE SQUIRES and BONNIE SQUIRES, Appellants, v. SIERRA NEVADA
EDUCATIONAL FOUNDATION INC., dba CAMBRIDGE SCHOOL, Respondent.
No. 21666
December 20, 1991 823 P.2d 256
Appeal from an order of the district court dismissing appellant's complaint for failure to
state a claim upon which relief can be granted. Second Judicial District Court, Washoe
County; Brent T. Adams, Judge.
Parents of elementary school child sued private school in which he had been enrolled for
four years, alleging educational malpractice, misrepresentation and breach of contract. The
district court dismissed for failure to state cause of action. Appeal was taken. The supreme
court, Rose, J., held that: (1) parents presented triable case of breach of contract, and {2)
parents presented triable case of misrepresentation.
presented triable case of breach of contract, and (2) parents presented triable case of
misrepresentation.
Geoffrey White, Reno, for Appellants.
Erickson, Thorpe & Swainston, Ltd., and John A. Aberasturi, Reno, for Respondent.
1. Schools.
Parents of elementary school child presented triable case of breach of contract against private school; there was evidence school
had agreed to include certain specified services to child, such as appropriate individualized reading instructions and adequate
diagnostic and remediation services should reading problems develop, and that services had in fact not been provided.
2. Fraud.
Parents of elementary student presented triable case of misrepresentation against private school; parents alleged that principal had
made specific representations in response to parents specific questions concerning child's potential reading problems, and had sent
progress reports, which negligently or knowingly misrepresented he was not having academic difficulties.
OPINION
Brandon Squires (Brandon) attended Cambridge School from pre-kindergarten through
second grade. Brandon's parents, Bonnie and Burke Squires (the Squires), chose to send him
to Cambridge because they suspected that he might experience difficulties learning to read,
based upon his difficulties in articulating words and the difficulties his father had experienced
in learning to read. In her affidavit, Bonnie Squires states that she expressed this concern to
the principal of Cambridge, Linda Fisher, when she was choosing a school for Brandon. Ms.
Fisher specifically advised her that Cambridge had the capabilities and the facilities to
diagnose and remediate any reading difficulties which might develop. In addition, Bonnie
states that Ms. Fisher told her that Cambridge could provide an education superior to that
provided by public schools because of smaller classes, individualized instruction, and a
highly qualified staff.
The Squires contend that, in reliance upon Ms. Fisher's statements, they elected to send
Brandon to Cambridge, foregoing a public school education. Brandon appeared to be
progressing normally at Cambridge. All of his progress reports were positive, except his
second grade fourth quarter report, which noted that his reading ability was significantly
below grade level and recommended that he repeat the second grade.
his reading ability was significantly below grade level and recommended that he repeat the
second grade. The school had not provided the Squires with any previous indication that
Brandon was having difficulties. The Squires failed to detect this problem at home, in part
because Brandon was capable of memorizing stories and reciting them back to people, and in
part because of Burke Squires' own reading difficulties.
During part of the time that Brandon was attending Cambridge, Bonnie worked as a
secretary at the school. During this time, she personally observed Brandon's first grade
teacher, Betty Weiser, who was also the school's administrator, spending a great deal of time
on administrative duties. Consequently, many of Brandon's first grade classes were taught by
inexperienced teaching interns.
The Squires obtained an affidavit from Verlinda Thompson, an expert in the teaching of
reading, stating that Brandon's reading deficiencies were more likely than not the result of
inappropriate instruction and intervention, or lack thereof, during Brandon's four years at
Cambridge School. Ms. Thompson based her conclusion on the fact that the standardized
tests given to Brandon indicated that he is an extremely bright boy with language
comprehension skills far in advance of his chronological age, and that none of the documents
she reviewed indicated any evidence of an organic component to Brandon's reading disability.
After Brandon's second grade year at Cambridge, the Squires transferred him to a public
school where, as a result of his reading deficiencies, he was required to repeat the second
grade. As of last February, Brandon was twelve years old and in the fourth grade, and he had
been identified as a special education student. Brandon alleges injuries consisting of
permanent injury to his mental and emotional development and the pain, frustration, and
shame associated with being held back. Furthermore, according to Verlinda Thompson's
affidavit, Brandon is likely to suffer future harm because, as a very bright older child with
markedly discrepant reading skills, he possesses traits which would characterize him as being
at a high risk of dropping out of school. Brandon's parents also allege monetary damages in
the form of wasted tuition expenses, the cost of remediation services at the University of
Nevada at Reno's Reading Clinic, and three years of private tutoring.
Appellants brought several claims for relief before the district court, alleging primarily (1)
educational malpractice, (2) misrepresentation, and (3) breach of contract. Cambridge
submitted a motion to dismiss for failure to state a claim upon which relief can be granted,
pursuant to NRCP 12(b)(5). The district judge granted this motion, because he was persuaded
that there is no standard for instructing or testing students and because he concluded that as a
matter of policy, teachers should not be confined to a limited number of teaching
methods.
cluded that as a matter of policy, teachers should not be confined to a limited number of
teaching methods. We reverse and remand.
The standard of review of dismissals under NRCP 12(b)(5) is rigorous. The court must
construe the pleading liberally and draw every fair intendment in favor of the [appellant].
Merluzzi v. Larson, 96 Nev. 409, 411, 610 P.2d 739, 741 (1980) (citing San Diego
Prestressed Concrete Co. v. Chicago Title Ins. Corp., 92 Nev. 569, 573, 555 P.2d 484, 487
(1976)). However, the appellant must have presented some relevant legal authority in support
of his contention. Plankinton v. Nye County, 95 Nev. 12, 588 P.2d 1025 (1979). In addition,
all factual allegations of the complaint must be accepted as true. Hynds Plumbing v. Clark
Co. Sch. Dist., 94 Nev. 776, 777, 587 P.2d 1331, 1332 (1978). Under this standard of review,
the Squires have clearly alleged claims of breach of contract and negligent and intentional
misrepresentation upon which relief may be granted.
This case presents issues of first impression to this court. A cause of action in contract for
educational claims was recognized in dicta in Paladino v. Adelphi University, 454 N.Y.S.2d
868, 873 (N.Y.App.Div. 1982), which held that a cause of action in contract can exist against
a private educational institution when that institution provides no services or does not provide
certain specified services, such as an agreed upon number of hours of instruction. In
Paladino, parents sued a private elementary school because their fifth grader failed to
perform at grade level and had to repeat the fifth grade. Id. at 870. The court ruled in favor of
the school, but only because the parents' claim of misrepresentation based upon misleading
progress reports was contradicted by the record, which overwhelmingly demonstrated that the
parents were in fact aware of their child's academic deficiencies. Id. at 874. In addition, the
parents' claim that the school failed to provide necessary tutorial services was contradicted by
the record, which showed that the child had received tutoring in the fourth and fifth grades.
Id. at 875.
[Headnote 1]
The claims presented by appellants in the instant case are similar to those presented in
Paladino. The Squires allege that a contract existed, whereby they promised to pay tuition in
exchange for Cambridge's promise to provide Brandon with a quality elementary education.
Unlike the contract alleged in Paladino, the quality education for which the Squires
contracted was to include certain specified services, such as appropriate individualized
reading instruction and adequate diagnostic and remediation services should reading
problems develop. Thus, in the instant case, the contract is alleged to contain sufficiently
particularized services to support a claim for breach of contract.
[Headnote 2]
The allegations of misrepresentation in the instant case are also similar to those in
Paladino. The Squires allege that Ms. Fisher made specific representations as to the quality of
Cambridge's educational offerings in response to the Squires' specific questions concerning
Brandon's potential reading problems. As in Paladino, the Squires allege that Brandon's
teachers sent progress reports which negligently or knowingly misrepresented that he was not
having academic difficulties.
1
In Paladino, however, these claims of misrepresentation were
rejected because there was evidence suggesting the parents had actual knowledge of their
child's problems in school. In the instant case, interpreting the facts favorably to appellants,
there is no evidence contradicting appellants' claim. Therefore, appellants' claim of
misrepresentation is also valid.
Because we conclude that appellants have successfully articulated claims of breach of
contract and misrepresentation upon which relief may be granted, we decline to address the
justiciability of the claim for educational malpractice at this time. Accordingly, we reverse
and remand for trial.
____________
107 Nev. 906, 906 (1991) Int'l Assoc. Firefighters v. City of Las Vegas
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 1285, a Nevada
Corporation, Appellant, v. CITY OF LAS VEGAS, NEVADA, a Municipal
Corporation of the State of Nevada, Respondent.
No. 21745
December 20, 1991 823 P.2d 877
Appeal from a district court order denying appellant's motion to vacate an arbitration
award. Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
The district court denied union's motion to vacate arbitration award entered into pursuant
to collective bargaining agreement. Appeal was taken. The supreme court held that: (1)
collateral estoppel created by earlier arbitration proceeding precluded arbitrator from
concluding that municipality could use civil service rule violations as basis for disciplining
fire fighter, in addition to fire department rules; {2) collective bargaining agreement did
not prohibit municipality's use of demotion as alternative to discharge; and {3) dismissal
of criminal charges against fire fighter, which had been impetus for initial disciplinary
proceeding, did not require that grievance proceedings be discontinued.
__________

1
The allegations of misrepresentation sound in negligence, except for the claim that the statements made by
Cambridge were known to be false. For the purposes of this appeal, we will treat this cause of action as one for
negligent misrepresentation. If the appellants choose to proceed on the theory of intentional misrepresentation as
well as negligent misrepresentation and they believe they have stated a cause of action upon which to base such
relief, that matter can be resolved by the district court.
trator from concluding that municipality could use civil service rule violations as basis for
disciplining fire fighter, in addition to fire department rules; (2) collective bargaining
agreement did not prohibit municipality's use of demotion as alternative to discharge; and (3)
dismissal of criminal charges against fire fighter, which had been impetus for initial
disciplinary proceeding, did not require that grievance proceedings be discontinued.
Affirmed.
Hilbrecht & Associates and Jeffrey E. Fisher, Las Vegas, for Appellant.
Richard J. Bortolin, Las Vegas, for Respondent.
1. Labor Relations.
Arbitrator interpreting terms of collective bargaining agreement does not have freedom to contradict express language of contract.
2. Labor Relations.
Where labor contract expressly prescribes particular discipline for specified offenses, an arbitration award overturning or
modifying that discipline does not draw its essence from contract and is in excess of arbitrator's authority.
3. Labor Relations.
Arbitrator was collaterally estopped from deciding that collective bargaining agreement between municipality could rely upon civil
service rules in disciplining fire fighter; earlier arbitration between union and municipality on same question had been decided by
ruling that civil service rules could not be used as basis for fire fighter discipline.
4. Labor Relations.
Collective bargaining agreement between municipality and fire fighters union, which included fire department's positive discipline
manual, did not forbid city's use of demotion as an alternative to discharge, even though it did not expressly so provide.
5. Municipal Corporations.
Dropping of criminal charges of assault relating to fire fighter's stopping of motorist for traffic violation did not require dropping
of disciplinary charges against fire fighter, charges had been based not on criminal act but on violation of fire department procedural
rules prohibiting fire fighters from acting in peace officer capacity while off duty, and fire fighter's insubordination.
OPINION
Per Curiam:
FACTS
Appellant International Association of Firefighters, Local 1285 (Local 1285), represents
Grant K. Grove (Grove). Grove has been a fire investigator with the Fire Services
Department of the City of Las Vegas {"the City") since September S, 19S0.
has been a fire investigator with the Fire Services Department of the City of Las Vegas (the
City) since September 8, 1980. As a fire investigator, Grove carried a duty weapon and Las
Vegas Fire Department identification badges and held peace officer status. A City
memorandum dated December 19, 1985, advised Grove that peace officer status is effective
only while on duty and that neither duty weapons nor identification badges are to be carried
while off duty.
On September 12, 1988, Grove was off duty and driving his private automobile on
Flamingo Road in Las Vegas. Another motor vehicle, operated by Charles Vowell, swerved
in front of Grove and then slowed, causing Grove to brake suddenly. Believing Vowell's
actions to be illegal, Grove carried out a traffic stop. In executing the stop, Grove displayed
his identification badge to Vowell and represented that, as a sworn peace officer, he
possessed the authority to conduct a non-job-related traffic stop. According to Vowell, Grove
struck him and displayed his duty firearm in a threatening manner. Vowell subsequently filed
criminal charges based on these allegations. Grove denied the allegations but admitted to
carrying a handgun on the day of the incident.
The City learned of Grove's misconduct and notified him of its intention to take
disciplinary action. After a meeting between Grove and the Deputy Director of Fire Services,
the City issued a notice of decision making leave and demotion (the notice) in which the
City formally demoted Grove to firefighter and gave him one day of decision making leave.
1
The notice specified that Grove's misconduct constituted cause for discipline pursuant to
City of Las Vegas Civil Service Rule 510.2(H). The notice also expressly stated that the City
would not discipline Grove for the criminal charges filed by Vowell.
On November 29, 1988, the Las Vegas Justice Court dismissed the charges due to
Vowell's inability to identify Grove. The demotion and decision making leave outlined in the
notice remain the only disciplinary steps taken by the City against Grove for the September
12th incident.
Assisted by Local 1285, Grove filed a grievance pursuant to the procedures established by
the parties' collective bargaining agreement (the CBA). According to Grove, the City
violated the CBA by citing Civil Service Rule 510.2(H) as the basis for his discipline and by
failing to adhere to the disciplinary system outlined in the "Positive Discipline" manual.
__________

1
Decision making leave is the third step of the positive discipline system. See infra p. 8-9. This step consists
of a conversation between the supervisor and the employee about a discipline problem, which is followed by
giving the employee a day of leave during which he is to decide whether he wishes, and is able, to continue
working for the organization, obeying all of the rules and performing satisfactorily.
discipline and by failing to adhere to the disciplinary system outlined in the Positive
Discipline manual. Specifically, Grove and Local 1285 asserted that the City's use of
demotion violated the CBA. The City and Grove agreed to hold this grievance in abeyance
pending the outcome of a separate but related grievance between Local 1285 and the City.
In this separate grievance, Local 1285 contended that the CBA required the City to base
discipline on violations of fire department rules and regulations or fire department standard
operating procedures, rather than on civil service rules. The union further asserted that, in
determining what disciplinary steps should be taken, the City must follow the framework set
forth in a manual entitled Positive Discipline.
On April 28, 1989, Arbitrator Richard Calister ruled in favor of Local 1285, holding that
the CBA subsumes and encompasses the procedures and standards for discipline within the
[Fire] Department . . . through Rules and Regulations, Standard Operating Procedures and
Positive Discipline, thus estopping the [City] from relying on the . . . Civil Service Rules as a
basis for discipline.
In light of Arbitrator Calister's decision, the City reconsidered the disciplinary action taken
against Grove. On May 19, 1989, the City issued Grove an amended notice of decision
making leave and demotion (amended notice) which deleted any reference to the civil
service rules, but retained demotion and decision making leave as disciplinary measures for
his actions. Grove and Local 1285 ultimately requested arbitration.
Arbitrator George E. Marshall, Jr., heard the dispute on November 1, 1989. On December
6, 1989, he issued a decision denying Grove's grievance and upholding the City's disciplinary
action for the following reasons: (1) Despite Arbitrator Calister's decision to the contrary, the
City could properly rely on its civil service rules as the basis for disciplinary action against
Fire Department employees; (2) The City followed the steps contained in the positive
discipline manual in disciplining Grove; and (3) Although the City utilized Vowell's criminal
allegations in determining the seriousness of Grove's actions and deciding upon the
appropriate disciplinary response, the subsequent dismissal of these charges does not render
the disciplinary action inappropriate or unwarranted, as there was ample evidence to establish
cause for discipline.
On March 6, 1990, Local 1285 filed a motion requesting that the district court vacate
Arbitrator Marshall's award. The court denied the union's motion, concluding that Arbitrator
Marshall acted within his authority in sustaining Grove's demotion under the parties' CBA.
DISCUSSION
Local 1285 contends that Arbitrator Marshall exceeded the scope of his authority in
sustaining Grove's demotion.
In Int'l Assoc. Firefighters v. City of Las Vegas, 104 Nev. 615, 764 P.2d 478 (1988), we
held that disciplinary disputes between Local 1285 and the City are arbitrable pursuant to the
arbitration provisions contained in the parties' collective bargaining agreement. Any judicial
review of a resulting arbitration decision must be done according to Chapter 38 of the Nevada
Revised Statutes, the Uniform Arbitration Act. City of Boulder v. General Sales Drivers, 101
Nev. 117, 119, 694 P.2d 498, 499 (1985). The Uniform Arbitration Act, however, prescribes
a limited standard of judicial review for arbitration awards. NRS 38.145 enumerates several
grounds for vacating an award.
In the case before us, Local 1285 relies solely upon NRS 38.145(1)(c), which requires the
reviewing court to vacate an award if the arbitrator exceeded his powers. An arbitrator's
award must be based on the collective bargaining agreement, and must be enforced by the
courts even if the arbitrator's interpretation of the contract is ambiguous or would differ from
the court's interpretation. IBEW Local 396 v. Central Tel. Co., 94 Nev. 491, 493, 581 P.2d
865, 867 (1978); see also United Steelworkers of America v. Enterprise Wheel & Car Corp.,
363 U.S. 593, 597 (1960) (arbitral award is legitimate only so long as it draws its essence
from the collective bargaining agreement).
Courts have allowed arbitrators wide latitude in interpreting labor contracts. See, e.g.,
Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 581-582 (1960). This court has been
equally deferential, stressing that [w]hen an arbitrator is commissioned to interpret and apply
the collective bargaining agreement, he is to bring his informed judgment to bear in order to
reach a fair solution of a problem. Reynolds Elec. v. United Bhd., 81 Nev. 199, 208, 401
P.2d 60, 65 (1965) (quoting Enterprise Wheel & Car Corp., 363 U.S. at 597).
[Headnotes 1, 2]
The deference accorded an arbitrator, however, is not limitless; he is not free to contradict
the express language of the contract. See, e.g., Leed Architectural Products v. Local 6674,
916 F.2d 63, 65 (2nd Cir. 1990). This limitation on arbitral authority holds for disciplinary
disputes as well. Where a labor contract expressly prescribes particular discipline for
specified offenses, an arbitration award overturning or modifying that discipline does not
draw its essence from the contract and is in excess of the arbitrator's authority. Intern.
Broth. of Firemen v. Nestle Co., Inc., 630 F.2d 474 (6th Cir. 1980).
[Headnote 3]
Arbitrator Calister's award prohibited the City from relying upon Civil Service Rules as a
basis for disciplinary actions against firefighters.
2
Arbitrator Marshall expressly declined to
follow Calister's award and concluded that the City properly relied upon the civil service rules
in disciplining Grove.
Local 1285 asserts that the doctrine of collateral estoppel should apply in the arbitration
context and that Arbitrator Calister's decision thus was binding upon the parties in the
subsequent dispute. Local 1285 further argues that Arbitrator Marshall exceeded his authority
by expressly contradicting Arbitrator Calister's controlling interpretation of the CBA. The
City responds that although Calister's award had persuasive value, Arbitrator Marshall was
not bound by the previous contract interpretation.
The applicability of collateral estoppel to arbitration awards is an issue of first impression
for this court. Those courts that have considered the issue have held the doctrine to be
applicable, especially in the context of labor arbitration. E.g., Todd Shipyards Corp. v.
Industrial U. of Marine & Ship. Wkrs., 242 F.Supp. 606, 611 (D.N.J. 1965) (arbitrator acting
within the scope of his authority has the effect of a judgment and is conclusive as to all
matters submitted for decision); Cleveland v. Ass'n of Cleveland Fire Fighters, 485 N.E.2d
792 (Ohio App. 1984) (arbitration award has the same preclusive effect as a court judgment).
In these jurisdictions, the party seeking to avoid issue preclusion has the burden of showing
that the arbitrators did not decide that issue. Id.
Policy considerations underlie our conclusion that the doctrine of collateral estoppel
should apply to arbitration. The harmony sought by arbitration as a substitute for work
stoppage and elimination of strife between labor and management could be jeopardized if
repetitive submission to arbitration of the same issue was permitted. Todd Shipyards Corp.,
242 F.Supp. at 611. Here, the prior decision involves the interpretation of the identical
contract provision between the same employer and union. In such cases, every principle of
common sense, policy, and labor relations demands that [the decision] stand until the parties
annul it by a newly worded contract provisions.' " F.
__________

2
In support of Arbitrator Calister's decision, Local 1285 cites Int'l Assoc. Firefighters v. City of Las Vegas,
104 Nev. 615, 619-620, 764 P.2d 478, 480-481 (1988), for the proposition that the City may not proceed with
discipline against a firefighter based on the civil service rules. The primary issue in that case, however, was
whether the firefighter's grievance was within the arbitration agreement between the firefighters and the City; the
issue of whether the City could base disciplinary action on the civil service rules was not squarely before the
court.
newly worded contract provisions.' F. Elkouri and E.A. Elkouri, How Arbitration Works,
426 (4th ed. 1985) (quoting Pan Am. Ref. Corp., 2 ALAA 67,937, p. 69,464 (1948)).
Moreover, unless there is finality to an arbitration award, there is no inducement for parties to
accept a provision for arbitration in the labor agreement.
In the case at bar, Grove's demotion gave rise to an issue fully covered in Arbitrator
Calister's prior award; namely, what disciplinary measures and procedures were available to
the City under the prevailing labor contract. Accordingly, Arbitrator Marshall was bound by
the prior interpretation of the contract and Grove's demotion cannot be sustained on the basis
of the civil service rules.
[Headnotes 4]
The City contends that, notwithstanding Arbitrator Marshall's conclusion regarding the
civil service rules, his arbitration award did not exceed the scope of his authority.
Specifically, the City argues that because Grove's case was reconsidered in light of Arbitrator
Calister's award, all reliance upon the civil service rules was removed. The City further
claims that in reconsidering the case, it evaluated Grove's conduct in accordance with the
department of fire services rules and regulations, standard operating procedures, and the
positive discipline manual. The City asserts that because these disciplinary provisions allow
for demotion and decision making leave, the City properly reaffirmed Grove's discipline. The
union responds that the CBA, as construed by Arbitrator Calister, does not allow demotion.
Thus, the critical question is whether the disciplinary provisions of the parties' CBA, as
construed by Arbitrator Calister, permit the City to demote Grove. Arbitrator Marshall failed
to consider this issue.
Arbitrator Calister concluded that the disciplinary provisions of the CBA are embodied in
three documents: the department of fire service rules and regulations, the department's
standard operating procedures, and the positive discipline manual. The positive discipline
manual lays out the disciplinary actions available to the City. The system set forth in the
manual consists of three disciplinary steps, in ascending order of seriousness: oral reminder,
written reminder, and decision-making leave. Offenses subject to discipline are separated into
three categories depending on their gravity. The categories are entitled (1) minor violations,
(2) serious violations, and (3) major violations. Although an oral reminder is generally the
initial disciplinary response, discipline may begin at a higher level depending on the
seriousness of the employee's conduct.
While the civil service rules explicitly provide for disciplinary demotion3, the positive
discipline manual does not.
demotion
3
, the positive discipline manual does not. Demotion is mentioned only once in the
manual, and the mention is cursory and insignificant. Local 1285 contends that because
demotion is not expressly discussed in the manual, it is not part of the positive discipline
system. According to the union, the City is limited to the three-step progression outlined in
the manual, and if those steps fail to improve Grove's conduct, then discharge would be
appropriate. The union further submits that in upholding Grove's demotion, Arbitrator
Marshall contradicted the express provisions of the positive discipline manual and, as a
result, exceeded his arbitral authority.
In support of its position, Local 1285 cites Intern. Broth. of Firemen, which holds that
where a labor agreement provides particular discipline for specified offenses, an arbitrator
exceeds his authority by overturning or modifying that discipline. This case, however, is
distinguishable from the case before the court. In Intern. Broth. of Firemen, the arbitration
award was overturned for clearly contradicting an express provision of the collective
bargaining agreement. In the case before the court, the parties' CBA does not provide
particular discipline for specified offenses. Thus, it is not clear that sustaining the demotion
contradicts the express language of the positive discipline manual.
The language contained in the positive discipline manual is ambiguous with respect to
demotion. There is neither an express provision permitting demotion nor one forbidding it.
And nowhere in the manual is there an integration clause limiting the City to those
disciplinary steps specifically listed. Therefore, Grove's demotion does not contradict the
express provisions of the CBA. We must still consider, however, whether the demotion
draws its essence from the positive discipline manual. Enterprise Wheel & Car Corp., 363
U.S. at 597.
The City contends that the positive discipline manual must be read in conjunction with
article 9(C) of the CBA. This subsection reads as follows:
The City and the Union recognize and understand that the Fire Department Rules and
Regulations are general in nature and shall not be considered as all inclusive. No
inference will be drawn from the absence of a rule in the Fire Department Rules and
Regulations.
__________

3
Civil Service Rule 520(C) provides:
An employee whose conduct is unsatisfactory shall be subject to disciplinary action. According to the
gravity of the offense this may take the form of any one or combination of the following:
(A) Oral warning;
(B) Written reprimand;
(C) Transfer to a less responsible post;
(D) Suspension (see rule 530);
(E) Termination.
will be drawn from the absence of a rule in the Fire Department Rules and Regulations.
According to the City, article 9(C) renders the manual general in nature and, in doing so,
provides both the City and the arbitrator with flexibility in applying the manual to
disciplinary problems and fashioning appropriate remedies. Employing this concept of
flexibility, the City insists that demotion is properly included in the positive discipline
system as an alternative to discharge. The City points out that Grove could have been
discharged immediately because his misconduct and insubordination placed him in the
manual's crisis discharge category. Under this category the City can discharge an employee
without having to first proceed through the three steps in the positive discipline system.
4
The
City maintains it exercised leniency because of Grove's excellent record as a firefighter with
the department. Without the flexibility to use demotion as a disciplinary tool, the City
contends it would have had no choice but to discharge Grove.
Local 1285 responds that the general in nature and . . . not . . . all inclusive language
applies only to the fire department rules and regulations, not the positive discipline manual.
Thus, the union concludes, only those specific forms of discipline enumerated in the positive
discipline manual are available to the City.
We disagree with Local 1285's position. Arbitrator Calister concluded that article 9
subsumes and encompasses the positive discipline system, even though this article does not
refer to the positive discipline manual. In that Calister's decision effectively read the positive
discipline system into article 9 of the CBA, it is reasonable to conclude that subsection (C) of
this article applies to the system. Therefore, the City could demote Grove as an alternative to
discharging him. Grove's misconduct constituted a major violation under the positive
discipline system, which warrants immediate discharge. Ironically, if we were to accept Local
1285's position, Grove may well be discharged when his case is reconsidered by the City.
__________

4
Arbitrator Marshall found that the City had properly applied the positive discipline steps in disciplining
Grove. Marshall found that the City initiated the steps when it afforded Grove an opportunity to explain his
version of the events and counseled him relative to the inappropriateness of his conduct in light of City and Fire
Department directives, policies, and rules. Marshall also concluded that, because of Grove's insubordinate
responses relative to his peace officer duties and functions and his intention not to adhere to departmental
direction in the future, other steps in the positive discipline system were not warranted or necessary. This
finding supports the City's contention that Grove's behavior placed him in the crisis discharge category.
[Headnote 5]
Local 1285 contends that even if Arbitrator Marshall had the authority to sustain demotion
as a disciplinary action, he erred by upholding a demotion based in part on criminal charges
that ultimately were dismissed.
5
As authority, the union cites Int'l Assoc. of Firefighters. In
Int'l Assoc. of Firefighters, a City firefighter was suspended after being charged with theft.
Although the charges ultimately were dismissed, the City insisted it retained the right to
discipline the firefighter for the underlying conduct giving rise to the criminal charges.
Because the authorities dropped the charges against the firefighter, we concluded that he did
not commit the crime and thus was not subject to discipline. Int'l Assoc. of Firefighters, 104
Nev. at 621, 764 P.2d at 482.
Local 1285 overstates our holding in Int'l Assoc. of Firefighters. There, the firefighter's
suspension was based solely on the criminal charges. Here, as Arbitrator Marshall
determined, there remains ample evidence to establish cause for disciplinary action against
Grove, regardless of the dismissed criminal charges. The record supports the City's claim that
Grove's demotion was based only on his breach of Fire Department procedural orders and his
insubordination. Moreover, both the notice and amended notice of decision making leave
expressly state that Grove's demotion and decision making leave are not based on the criminal
charges filed by Vowell.
CONCLUSION
Public policy considerations and the prevailing trend in other jurisdictions persuade us to
apply the doctrine of collateral estoppel to arbitration. Therefore, Arbitrator Marshall was
bound by the prior contract interpretation of Arbitrator Calister.
We further conclude that the parties' bargaining agreement, specifically the positive
discipline manual, does not forbid the City's used of demotion as an alternative to discharge.
Here Grove's misconduct constituted a major violation warranting an immediate crisis
discharge. Rather than discharge an employee whose employment record was exemplary, the
City chose to impose the lesser penalty of demotion.
The record contains ample uncontroverted evidence justifying Grove's demotion.
__________

5
An arbitrator exceeds his arbitral authority when he has manifestly disregarded the law. American Postal
Workers v. U.S. Postal Service, 682 F.2d 1280, 1284 (9th Cir. 1982). Reviewing courts should vacate an award
which actually violates the law. George Day Const. v. United Broth. of Carpenters, 722 F.2d 1471, 1477 (9th
Cir. 1984); see also Broadway Cab Co-op. v. Teamsters & Chauf. Local, 710 F.2d 1379, 1382 (9th Cir. 1983).
Grove's demotion. Moreover, Grove received two official disciplinary documents in which
the City expressly declined to impose any discipline as a result of the pending criminal
charges.
Accordingly, we affirm the order entered below.
____________
107 Nev. 916, 916 (1991) Ikie v. State
DAN IKIE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21170
December 20, 1991 823 P.2d 258
Appeal from judgment of conviction of one count of larceny from the person. Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
Defendant was convicted in the district court of larceny from the person, and he appealed.
The supreme court, Rose, J., held that: (1) expert testimony on pickpocket crimes was
admissible in prosecution for larceny from the person by theft of cash from victim's pocket,
but (2) evidence would not support conviction of defendant under information alleging that
defendant aided and abetted taking of money from victim.
Reversed.
Morgan D. Harris, Public Defender and R. Michael Gardner, Deputy Public Defender,
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Expert testimony on pickpocket crimes was admissible in prosecution for larceny from the person by theft of cash from victim's
pocket.
2. Larceny.
Evidence would not support conviction of defendant for larceny from the person under information alleging that defendant aided
and abetted by taking money from victim rather than by any acts prior or subsequent to taking; defendant was not in vicinity when
woman suspected to be involved in larceny bumped into victim, and defendant did not join woman and her alleged partner until the
woman was away from the victim and they were exiting hotel. NRS 205.270.
3. Larceny.
Conviction cannot be buttressed by finding that there is sufficient evidence to prove aiding and abetting in ways other than those
charged in information.
107 Nev. 916, 917 (1991) Ikie v. State
State is required to set forth in information or indictment specific acts constituting means of aiding and abetting so as to afford
defendant notice to prepare defense.
OPINION
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
larceny from the person. The district court sentenced appellant Dan Ikie to a term of ten years
in the Nevada State Prison, to run consecutively to a sentence imposed for another conviction.
On November 13, 1989, Alberto Silva was staying at the Sands Hotel in Las Vegas,
Nevada. That evening, he left his room with $1,200 in cash in his pocket in a money clip. The
cash was in the form of nine one hundred dollar bills and fifteen twenty dollar bills. When
Mr. Silva and his wife stopped by a deli in the hotel and read the menu posted on the wall,
Mr. Silva noticed a man whom he later identified as Ikie, eating pizza in the deli with a black
woman. Mr. Silva also noticed another man in the deli, whom he later identified as Ralph
Kado.
Mr. Silva and his wife left the deli and walked down a flight of three stairs. As they
descended the stairs, a man whom Mrs. Silva later identified as Kado passed between them.
Then, the black woman they had seen in the deli bumped into Mr. Silva from behind. Mr.
Silva thought the woman had broken her ankle, and he held her up in an effort to assist her.
At that time, he noticed another black man whom he could not identify, standing nearby. The
woman quickly recovered her composure and walked away. Mr. Silva testified that Ikie was
not present at the time of the incident on the stairs.
Mr. Silva felt there was something wrong. He checked for his money and discovered it
was gone. Meanwhile, the black woman was joined by the man Mr. Silva had seen on the
stairs, and then by Ikie. As the three walked quickly towards the exit door of the hotel, Mr.
Silva called to his wife to get security because he thought he had been robbed, and he began
pursuing the three people. After leaving the hotel, the three suspects stopped in a liquor store
about one hundred feet away. Mr. Silva saw them exit the store, and he began to chase them.
Security guards from the Sands caught up with Mr. Silva, and he pointed out the three
suspects. He and the guards followed them across the street towards the Frontier Hotel. When
Mr. Silva entered the Frontier, the security guards had both Ikie and Kado in custody. He did
not see the woman who had bumped into him.
107 Nev. 916, 918 (1991) Ikie v. State
Marlin Barry Smith, a security officer from the Sands Hotel, testified that when Kado was
apprehended at the Frontier Hotel, he had five one hundred dollar bills and either five or six
twenty dollar bills in his hand. Officer Stephen Michael Carter of the Las Vegas Metropolitan
Police Department testified that he did a pat down search of Ikie, but he found no money.
After Carter transported Ikie to the Clark County Detention Center, Ikie was searched again.
At that time, one thousand and sixty dollars were found in his shoes. The money was in the
form of eight one hundred dollar bills and thirteen twenty dollar bills. An unknown number
of five and one dollar bills was also found in Ikie's shoes.
Ikie was arrested and charged by information with larceny from the person, a felony
pursuant to NRS 205.270.
1
The information charged both Ikie and Kado with personally
taking the money from Mr. Silva's pocket. Specifically, it stated that the larceny was
accomplished by:
[E]ach Defendant aiding and abetting the other and a third unnamed black female, in
the following manner, to-wit: by the unnamed black female feigning a fall directly in
front of the said ALBERT [sic] SILVA, thereafter Defendants DAN IKIE and/or
RALPH KADO bumping ALBERT [sic] SILVA from behind as he went to the aid of
the unnamed black female, thereby, causing confusing and allowing Defendants DAN
IKIE and/or RALPH KADO to extract lawful money of the United States from the said
ALBERTO SILVA'S pocket.
At trial, the facts previously recited were received in evidence and the Silvas confirmed that
Ikie was not present when the money was taken. Ikie's attorney moved for dismissal, but the
district court denied the motion. The jury returned a verdict of guilty, and the district court
sentenced Ikie to ten years in the Nevada State Prison, to run consecutively with the sentence
for another conviction.
On appeal, Ikie contends that the prosecutor improperly commented on his post-arrest
silence, in violation of the fifth amendment right against self-incrimination and the fourteenth
amendment right to a fair and impartial trial. Ikie does not identify the particular testimony or
argument he finds objectionable. We have carefully reviewed the record and are unable to
identify a time at which the prosecutor either improperly elicited comment on Ikie's
post-arrest silence or improperly commented on Ikie's post-arrest silence in closing
argument.
__________

1
1. Every person who, under circumstances not amounting to robbery, with intent to steal or
appropriate to his own use, takes from the person of another, without his consent, any money, property or
thing of value, 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.
107 Nev. 916, 919 (1991) Ikie v. State
identify a time at which the prosecutor either improperly elicited comment on Ikie's
post-arrest silence or improperly commented on Ikie's post-arrest silence in closing argument.
Therefore, we conclude that this argument lacks merit.
[Headnote 1]
Ikie also contends that the district court erred in admitting expert testimony on pickpocket
crimes. We conclude, however, that the testimony was properly admitted. See Townsend v.
State, 103 Nev. 113, 734 P.2d 705 (1987) (threshold test for admissibility of testimony by
qualified experts is whether expert's specialized knowledge will assist trier of fact to
understand evidence or determine fact in issue).
[Headnote 2]
Next, Ikie argues that the evidence presented at trial was insufficient to support the jury's
finding of guilt. We conclude that there was, in fact, insufficient evidence to indicate that Ikie
was guilty of taking property from the person of another as is required under NRS 205.270.
The information alleged that Ikie aided and abetted by taking the money from Mr. Silva. It
did not specifically allege that Ikie aided and abetted by any acts prior to or subsequent to the
taking. Ikie was not in the vicinity when the woman bumped into Mr. Silva. Only Kado was
standing on the stairs nearby, and Ikie did not join Kado and the woman until the woman was
away from Mr. Silva and they were exiting the hotel.
[Headnote 3]
The only evidence presented at trial connecting Ikie with the crime is the testimony that he
was with the woman before the crime, that he fled the hotel with the other two suspects, and
that he was found with one thousand sixty dollars in his shoe. The conviction cannot be
buttressed by finding that there is sufficient evidence to prove aiding and abetting in ways
other than those charged in the information.
[Headnote 4]
The State is required to set forth in the information or indictment the specific acts
constituting the means of aiding and abetting so as to afford the defendant notice to prepare
his defense. Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983). In Barren, the defendant was
convicted for murder, robbery, and burglary. On appeal, he challenged the indictment's
sufficiency, arguing that it failed to provide adequate notice of the offenses charged so as to
enable him to prepare an adequate defense. On its face, the indictment alleged that the
defendant was responsible for the victim's death because he personally struck her, and
committed robbery by personally taking property from the person or presence by force or
fear.
107 Nev. 916, 920 (1991) Ikie v. State
ence by force or fear. Despite the wording of the indictment, the State presented little or no
evidence that the defendant struck the victim or took property from her presence by force or
fear. Instead, the State proceeded primarily on a theory of vicarious liability. After careful
consideration of the varying legal views on this subject, we held that:
[W]here the prosecution seeks to establish a defendant's guilt on a theory of aiding and
abetting, the indictment should specifically allege the defendant aided and abetted, and
should provide additional information as to the specific acts constituting the means of
the aiding and abetting so as to afford the defendant adequate notice to prepare his
defense.
Id. at 668, 669 P.2d at 729. See also Skinner v. Sheriff, 93 Nev. 340, 566 P.2d 80 (1977)
(mere presence does not render defendant guilty of the crime, however reprehensible her
conduct was subsequent to the crime).
In the case at bar, the evidence failed to establish the State's theory that Ikie aided and
abetted the woman and Kado. In fact, the State disproved the criminal allegations asserted
against Ikie when Mr. Silva testified that Ikie was not present when he encountered the
woman.
The State might have charged and presented sufficient evidence of receiving stolen
property, possession of stolen property, aiding and abetting in larceny from the person, or
conspiracy to commit grand larceny. However, these offenses were not charged in the
indictment. Ikie was charged with taking property from the victim, but the proof clearly
established that Ikie had nothing to do with the specific taking, as he was never near enough
to Mr. Silva to take the money from his person, and he took no money from his person.
We hereby reverse the conviction entered against Ikie.
Springer and Young, JJ., concur.
Steffen, J., with whom Mowbray, C. J., agrees, dissenting:
Unfortunately, the majority has revitalized and extended the meaning of this court's
opinion in Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983), far beyond its original
intendment in order to invalidate what, in my view, is a sound conviction. I therefore
respectfully dissent.
By way of preliminary background, I note that two of the three justices signatory to the
majority opinion, including the author thereof, were not members of this court when Barren
was decided. Although the point has no relevance, I mention it in passing because it may
partially explain why the majority has misperceived the special office of the Barren ruling. In
short, Barren was conceived by this court as a means of restricting outrageous, purposeful
prosecutorial misconduct.
107 Nev. 916, 921 (1991) Ikie v. State
Barren was conceived by this court as a means of restricting outrageous, purposeful
prosecutorial misconduct. It was intended from the inception as a ruling with highly limited
application.
The youthful defendant, Barren, was befriended by a detective with respect to a
comparatively minor matter that was deemed not worthy of prosecution and which, in any
event, was unrelated to the murder involved in the Barren case. Moved by the fact that the
detective seemed genuinely concerned about his life and future, Barren volunteered
information to law enforcement officers concerning details of the brutal beating of an elderly
victim who died from the assault. At the time of Barren's disclosure, the young man was not
under threat of prosecution for any crime, and the police had no suspects concerning the
murder. As a result of Barren's unsolicited cooperation, the state obtained detailed
information concerning events surrounding the death of the elderly victim, Rose Shapiro,
including the very limited and non-violent, non-participatory role of Barren in the killing.
Notwithstanding the specific details of the murder thus revealed to the state, the prosecution
proceeded to obtain an indictment charging Barren with personally beating the victim to
death and personally and forcefully taking property from her death and personally and
forcefully taking property from her person or presence. See, Barren, 99 Nev. at 665, 669 P.2d
at 727. Moreover, despite its knowledge of Barren's true involvement in the crime, the state
did not indicate that it might prosecute Barren on an aiding and abetting theory until
immediately prior to the opening statements at trial. See, id. at 669, 669 P.2d at 730. Finally,
the state vacillated during trial as to its theory of prosecution, although the theme of vicarious
liability, which was not even mentioned in the indictment, predominated during the course of
the prosecution.
Occasionally, there are unseen hands that move the judicial pen in response to
intolerable circumstances. The Barren case constituted an example of an intolerable method
of prosecution. It is nevertheless extremely important to understand that Barren was fully and
purposefully intended to have a severely limited precedential effect. The key to both the scope
and thrust of Barren is found in footnote 4 of the opinion which qualifies the following
holding:
[W]e now hold that where the prosecution seeks to establish a defendant's guilt on a
theory of aiding and abetting, the indictment should specifically allege the defendant
aided and abetted, and should provide additional information as to the specific acts
constituting the means of the aiding and abetting so as to afford the defendant adequate
notice to prepare his defense.
Id. at 668, 669 P.2d at 729 (emphasis added). The qualifying footnote appearing at the end
of the quoted material revealingly stated: "As pointed out in Simpson v. State, SS Nev. at
65S, n.4, NRS 175.075{2) [an inaccurate reference to NRS 173.075{2) as properly cited in
Simpson] allows flexibility in pleading when the evidence is unclear as to the means by
which a crime has been committed," Id.
107 Nev. 916, 922 (1991) Ikie v. State
footnote appearing at the end of the quoted material revealingly stated: As pointed out in
Simpson v. State, 88 Nev. at 658, n.4, NRS 175.075(2) [an inaccurate reference to NRS
173.075(2) as properly cited in Simpson] allows flexibility in pleading when the evidence is
unclear as to the means by which a crime has been committed, Id. (emphasis supplied).
It was never intended that Barren have the effect, or be perceived as having the effect of
invalidating NRS 195.020, which, in pertinent part provides:
Every person concerned in the commission of a felony, gross misdemeanor or
misdemeanor, whether he directly commits the act constituting the offense, or aids or
abets in its commission, and whether present or absent; and every person who, directly
or indirectly, counsels, encourages, hires, commands, induces or otherwise procures
another to commit a felony, gross misdemeanor or misdemeanor is a principal, and
shall be proceeded against and punished as such.
At no point in Barren did we suggest or infer, let alone hold, that NRS 195.020 is
unconstitutional or otherwise infirm and therefore invalid. We did, however, overrule the
terse opinion of McWilliams v. State, 87 Nev. 302, 486 P.2d 481 (1971), to the extent that
McWilliams was inconsistent with our ruling in Barren. See, Barren, 99 Nev. at 668, 669
P.2d at 729. In brief, the rule of Barren is that prosecutors do not have the luxury of
withholding their true theories of prosecution until trial, thereby deliberately depriving a
defendant of the opportunity to most effectively prepare for the primary prosecutive thrust
against the defendant. Additionally, Barren requires the state to include within the charging
document facts by which an aiding and abetting occurred, if they are known.
However, as the referenced footnote in Barren makes clear, the state is allowed the
flexibility of a less particularized pleading under NRS 173.075(2) when the prosecution is
uncertain as to the means by which a crime has been committed. It is thus seen that while
NRS 195.020 confers upon an aider and abettor the status of a principal, the latter statute does
not constitute authority for general or imprecise pleading by the state when details of the
means of the commission of the crime are known. The former statute, NRS 173.075(2), does,
however, provide the pleading flexibility that the state may utilize in good faith when details,
including the precise role of various participants in a criminal enterprise, are unknown.
The majority is therefore in error in concluding that Barren requires the state to set forth
in the information or indictment the specific acts constituting the means of aiding and
abetting so as to afford the defendant notice to prepare his defense."
107 Nev. 916, 923 (1991) Ikie v. State
as to afford the defendant notice to prepare his defense. If the rule ascribed to Barren were
that rigid, no validity could be attached to either the qualifying footnote referenced above, or
the flexibility expressly provided by NRS 173.075(2). Moreover, under the view expressed by
the majority, unless the state can plead the specific acts by which an aiding and abetting is
accomplished, no prosecution may proceed. This extreme result was never intended by
Barren or any other ruling of this court. It is expressly foreclosed by the statutory latitude
accorded the state under NRS 173.075(2), a latitude which this court has never declared
unconstitutional or invalid in any of its cases, including Barren.
Applying the foregoing analysis of Barren and its impact on the instant case, I must
conclude that the majority has misperceived Barren and thus reached an erroneous result. The
only evidence that the state possessed was forthrightly presented in the information quoted by
the majority. There was no attempt by the state, and indeed the majority has cited to none in
the record, to withhold its theory of prosecution until the time of trial. Nor is there evidence
that the state, by its information and subsequent prosecution at trial, frustrated or prejudiced
Ikie's right to be informed of the charges against him and properly prepare his defense.
The trial record places Ikie in the company of the other two perpetrators immediately
preceding and following the consummation of the crime and during the attempted getaway.
Expert testimony properly admitted concerning the modus operandi of various pickpocket
schemes, revealed that frequently such crimes are committed by a team of three similarly
dressed confederates. The first is the stall, who creates the diversion or bumps into the
victim. The second, the mechanic or pick, is the one who actually picks the victim's
pocket, and the third, referred to as the mule, is the confederate who is immediately given
the money. A mule's role also includes serving as a lookout or a blocker in the event of a
chase.
After his apprehension, Ikie was found to be in possession of a large sum of money of the
same denomination taken from the victim. The jury reasonably could have concluded that
Ikie's possession of the money was consistent with the role assumed by a mule as
previously described to them by the expert witness.
The jury was free to accept the evidence of record and assign it the weight the jury deemed
proper. The totality of the evidence in the instant case, coupled with the guilty verdict,
indicate that the jury placed significant credibility in the expert testimony and reached a
determination both supportable by the evidence and reasonable in its result. Moreover, based
upon the evidence the jury rightfully considered, it is evident that Ikie's participation in the
crime was truly that of a principal, as opposed to either an aider and abettor or a recipient
of stolen property.
107 Nev. 916, 924 (1991) Ikie v. State
the crime was truly that of a principal, as opposed to either an aider and abettor or a recipient
of stolen property. He was part of the crime team that acted in concert to complete the
crime.
We have long adhered to the principle that [i]n reviewing the evidence supporting a jury's
verdict, the question is not whether this Court is convinced of the defendant's guilt beyond a
reasonable doubt, but whether the jury, acting reasonably, could have been convinced to that
certitude by the evidence it had a right to consider. Wilkins v. State, 96 Nev. 367, 374, 609
P.2d 309, 313 (1980). I believe that the jury performed its function reasonably and in full
accordance with the law as pronounced by this court. Because I do not agree with either the
legal analysis or the result of the majority opinion, I am constrained to dissent.
____________
107 Nev. 924, 924 (1991) Jeremiah B., a Minor v. State
JEREMIAH B., a Minor, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21232
December 20, 1991 823 P.2d 883
Appeal from a district court order transferring a minor to the adult criminal system. Third
Judicial District Court, Lyon County; Archie E. Blake, Judge.
The district court issued order transferring 17-year-old accused of vehicular homicide to be
transferred from custody of juvenile authorities and to be tried as an adult. Appeal was taken.
The supreme court Springer, J., held that crime was sufficiently heinous to warrant transfer.
Affirmed.
Sheerin, Walsh & Keele, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Keith Loomis, District Attorney,
Eileen Barnett, Deputy District Attorney, Lyon County, for Respondent.
1. Infants.
When transfer of juvenile to adult court system is to be based upon charged crimes alone, crimes must be serious, heinous and
egregious; mere commission of a felony does not, of itself warrant transfer. NRS 62.080.
2. Infants.
Causing death of another human being by willfully consuming alcohol and thereafter operating motor vehicle is of such heinous
and egregious nature as to justify transfer from juvenile to adult correction system. NRS 62.080.
3. Criminal Law.
In the event juvenile, transferred from juvenile to adult correction system in connection with charges of having killed two persons
while driving in drunken condition, was convicted for that offense, time spent incarcerated at juvenile detention center was to be
credited against any sentence imposed. NRS 176.055, subd. 1.
OPINION
The question in this appeal is whether the trial court abused its discretion in certifying,
under NRS 62.080,
1
a seventeen-year-old juvenile to the adult criminal court for prosecution
as an adult. We hold that the juvenile court did not err, and we affirm the order of transfer.
On April 1, 1990, when Jeremiah was seventeen years and four months old, he killed two
people while driving in a drunken and probably drug-impaired condition. A blood test taken
over two hours after the homicide showed a blood alcohol content of .143 percent, well over
the legal limit. A urine test showed that he had been using marijuana. Jeremiah ran into the
rear end of another car. The car's occupants were thrown out of the car, and they died as a
result of the collision.
With respect to each of the two homicides, Jeremiah faces felony charges of involuntary
manslaughter, driving while under the influence of alcohol or controlled substances and
causing death, driving while having 0.10 percent or more by weight of alcohol in his blood
and causing death, and reckless driving causing death. Jeremiah's principle contention is that
none of these crimes is so heinous and egregious as to justify a juvenile's transfer to the adult
court under the first criterion for transfer set out in the case, In the Matter of Seven Minors,
99 Nev. 427, 664 P.2d 947 (1983).
__________

1
NRS 62.080 provides as follows:
62.080 Procedure when person 16 years or older is charged with felony. If a child 16 years of age or
older is charged with an offense which would be a felony if committed by an adult, the juvenile division
of the district court, after full investigation, may in its discretion retain jurisdiction or certify the child for
proper criminal proceedings to any court which would have trial jurisdiction of such offense if committed
by an adult; but no child under 16 years of age may be so certified. After such 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 the child may
thereafter petition for transfer back to the juvenile division only upon a showing of exceptional
circumstances.
In Seven Minors we turned away from the traditional test applied in transfer cases, that is
to say, whether the minor was amenable to treatment in the juvenile court. Seven Minors,
99 Nev. at 433, 664 P.2d at 951. The traditional amenability or fitness rule formerly
followed by this court (Marvin v. State, 95 Nev. 836, 603 P.2d 1056 (1979)), and still
prevailing in most jurisdictions, focuses attention on the juvenile as a person rather than on
the offense committed by the juvenile; and, under this doctrine, if the juvenile court were to
conclude that a juvenile subject to transfer proceedings could be treated or rehabilitated by
the juvenile court, then the juvenile would be retained within the jurisdiction of the juvenile
court irrespective of the nature of the criminal conduct. Seven Minors changed the traditional
juvenile court approach and placed emphasis not on the juvenile's amenability to juvenile
court treatment nor on the juvenile's predicted response to the clinical armamentarium
supposed to be possessed by the juvenile court but, rather, on the necessity for holding older
youths accountable for the more serious, culpable and dangerous kinds of criminality. The
public interest and safety require that some youths be held accountable as adults for their
criminal misconduct and be subjected to controls, punishment, deterrence and retribution
found only in the adult criminal justice system. Seven Minors, 99 Nev. at 433, 664 P.2d at
951.
Since we made our ruling in Seven Minors, the juvenile court no longer bases transfer
decisions on the issue of whether a juvenile facing transfer is a suitable subject for the
juvenile court's rehabilitation efforts, but, rather, on the youth's criminal conduct and whether
under the circumstances the public interest and safety will permit the youth before the court
to be treated as a child. Id. The juvenile court has decided in the present case that this young
man should not be treated as a child; and we cannot say, as a matter of law, that the court
abused its discretion in coming to this conclusion.
The transfer process is based upon the sound idea that there is no arbitrary age at which
all youths should be held fully responsible as adults for their criminal acts and that there
should be a transition period during which an offender may or may not be held criminally
liable, depending on the nature of the offender and the offense. Seven Minors, 99 Nev. at
430, 664 P.2d at 949. Jeremiah's case is at the upper margin of the mentioned transition
period. Had Jeremiah been a few months older, he would, of course, have been held
criminally liable. As matters stand, because he falls slightly below the arbitrary statutory age,
he is entitled to a judicial determination as to whether, under the circumstances of this case,
he is entitled to the grace provided by the Juvenile Court Act." Id. at 433, 664 P.2d at 951.
by the Juvenile Court Act. Id. at 433, 664 P.2d at 951. In making the decision that Jeremiah
was not entitled to this grace, the juvenile court properly relied on the Seven Minors case.
In Seven Minors we established criteria for making the transfer decisions. These criteria
are: (1) the nature and seriousness of the charged offenses, (2) the persistency and seriousness
of past adjudicated or voluntarily admitted criminal offenses, and (3) the personal attributes
of the offender. [P]rimary and most weighty consideration will be given to the first two of
these categories. Id. at 435, 664 P.2d at 952.
[T]he transfer decision may be based on either or both of the first two categories. Id. at
435, 664 P.2d at 952. Jeremiah has no record of an adjudicated or voluntarily admitted past
criminal offense (Seven Minors, 99 Nev. at 434-435, 664 P.2d at 952).
2
Transfer in this
case must be based on the first criterion, nature and seriousness of the crime. [T]he nature
and seriousness of the crime upon which the transfer proceedings are based may be such that
the transfer proceedings may be based on this factor alone (Seven Minors, 99 Nev. at 435,
664 P.2d at 952); however, only the most heinous and egregious offenses would fall into this
category. Id. at 435, 664 P.2d at 952.
[Headnote 1]
To base transfer in the present case on the charged crimes alone, the crimes must be
serious, heinous and egregious. The mere commission of a felony does not, of itself, warrant
transfer; and in many instances where juveniles commit felonies, they do not deserve to be
sent to adult court and do not have to be held accountable as adults for their criminal
misconduct and be subjected to controls, punishment, deterrence and retribution found only
in the adult criminal justice system. Id. at 433, 664 P.2d at 951. The issue in this case
becomes a rather narrow one: Does this record support a conclusion that Jeremiah's criminal
conduct is so serious, heinous and egregious as to justify transfer to the adult court?
[Headnote 2]
Jeremiah strongly asserts that although his crimes are certainly serious, they cannot
properly be described as being among the most heinous and egregious crimes. Jeremiah
argues that his crimes must be willful and intentional and that nonintentional,
nonpredatory conduct may not be properly characterized as heinous or egregious. We must
agree that had Jeremiah's criminal conduct been entirely inadvertent, accidental or negligent
in nature, it would not have been so heinous as to justify transfer under the strict
standard set by Seven Minors.
__________

2
Voluntarily admitted refers to judicial admissions. An admission to a juvenile court petition charging
delinquency is analogous to a guilty plea in the adult court.
gent in nature, it would not have been so heinous as to justify transfer under the strict
standard set by Seven Minors. We conclude, however, that because Jeremiah has taken two
human lives and because there is an element of willfulness and intentionality present here, the
crimes committed in this case fall into the category of heinous and egregious.
Whether Jeremiah's crimes were heinous and egregious, whether Jeremiah is a youth who
should properly be kept in the juvenile court system . . . [or] should be sent to adult court
(Id. at 434, 664 P.2d at 952), is to a large extent determined by his having wrongfully and
unlawfully killed two human beings.
3
This fact, no doubt, was most seriously weighed by
the juvenile court.
The heinousness and egregiousness of a crime must certainly be viewed by the transferring
court with reference to the consequences flowing from the criminal conduct. It is very hard to
make a casewith the victims' families looking onthat this young man, on the cusp of
adulthood, should not be held accountable as an adult but, rather, should be sent to a juvenile
training center, there to be held for a relatively short time to be benefitted by the
reformatory educational discipline or other treatment provided by the school. NRS 210.182.
At first blush, it seems that justice requires more than this. Jeremiah's culpability, his
accountability, his just deserts, and, consequently, his susceptibility to being transferred is
necessarily dependent upon the fortuity of his having collided with a vehicle with human
occupants, rather than a tree or inanimate object. This is true because, very simply, our law
holds us all legally and morally responsible for the consequences of our bad acts. In some
instances heinousness may be found in the mental aspect of the crime, say an attempt with no
harmful consequences at all but very harmful intentions {for example, plan to kidnap a
group of small children for sexual purposes).
__________

3
In Seven Minors we stressed the need to hold juveniles accountable for their criminal misdeeds. This
accountability refers not only to youthful offenders' debt to society owed by virtue of their public offenses
against society as a whole but also to the debt owed to the victims of their crimes. Punitive just deserts must be
viewed in the light of both of these factors. Although we have tended to lose sight of the fact, in the early origins
of criminal law the sole purpose of the law was to compensate the victim, to bring peace to the realm by
supplanting the blood feud by means of inducing the victim or his kin to accept money instead of taking violent
revenge. There is a present-day trend to shift the law's emphasis more toward the rights of outraged victims than
to the inherent blameworthiness of the criminal conduct. It is plain that if Jeremiah had collided with a telephone
pole rather than with the deceased victims' automobile, he would not be in nearly as much trouble with the law.
That he killed two people is a very significant part of the transfer decision in this case. An almost-adult youth
with a history of illegal drug and alcohol use who kills two people while driving in a willfully drunken condition
probably, in the interest of the victim and in the interests of society, deserves to be held accountable in the adult
system.
very harmful intentions (for example, plan to kidnap a group of small children for sexual
purposes). In other instances, as here, the severity, the heinousness, of the crime is derived
from the consequences of relatively less serious intentions. The point is that we can
legitimately consider the fact of the deaths in this case in defining heinousness and
egregiousness. Under the circumstances of this case, we cannot disapprove of the trial court's
decision transferring Jeremiah to the adult system. We all understand that similar acts
sometimes generate great harm; sometimes not. A harmful result is conceptually independent
of the offender's act; yet penalties and consequences under our law are intimately connected
with the nature of the harm done.
If Jeremiah had gotten drunk and merely crashed his car into a telephone pole, we certainly
would not be talking here about a heinous or egregious offense. It is the actua reus rather
than the mens rea that brings this case into the ambit of transferability. The moral
reprehensibility of one who intentionally puts himself in the position of being an alcoholically
impaired motor vehicle operator may be essentially the same whether the alcoholic
impairment results in hitting a tree or hitting and killing a group of pedestrians; but the
consequences and price that must be paid by such an offender are far different in these two
situations. Crimes and punishments are by their very nature defined in terms of harmful
consequences. Arson is defined in terms of incinerated structures; battery in terms of physical
injury to another; homicide in terms of the death of a human being. Jeremiah, like all of us
living under the law as it now exists, must face the consequences of his wrongdoing.
Thus, although Jeremiah's counsel is correct in telling us that heinous and egregious
offenses are usually thought of in terms of willful and intentional wrongdoing and that
nonintentional, nonpredatory conduct is excepted, we now hold that causing the death of
another human being by a person who willfully consumes alcohol and thereafter operates a
motor vehicle is of such a heinous and egregious nature as to justify transfer under NRS
62.080 and under our case of Seven Minors.
The mere fact of the homicides does not in itself, however, bring these crimes into the
range of heinousness and egregiousness. If Jeremiah had caused these deaths by mere
carelessness or inattention, such conduct would not justify his transfer. But this is not the case
here; there is clearly an element of willful misconduct in this case. These crimes are not
crimes of purely unintended consequences. It appears from the statement of Deputy Juvenile
Probation Officer Moore that Jeremiah willfully intend[ed] to be under the influence of
alcohol and marijuana and willfully took control of and drove a motor vehicle under the
influence of these substances."
influence of these substances. In other words, Jeremiah drank and took drugs knowing that
he was going to be driving.
The word heinous means hateful or malicious. We find it persuasive that the legislature
has included one's driving a vehicle after consuming alcohol or drugs, knowing that the driver
was going to drive thereafter, as an act which, along with malice, subjects the offender to
punitive damages. NRS 42.010.
4

Under NRS 42.010, a person who kills or injures another 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, is subject
to a higher degree of civil responsibility than one who kills or injures as a result of mere
negligence. This is legislative recognition of the high degree of culpability which should be
attached to the conduct described in the statute. Few, if anyone, in today's world can be
unmindful of the dangers to life and bodily integrity which are inherent in
chemically-impaired driving. Jeremiah's intentionally drinking, knowing that he was going to
drive, and thereafter killing two human beings, constitutes the kind of heinous and egregious
criminal conduct that justifies transfer under the Seven Minors case.
The third Seven Minors criterion, come[s] into play principally in close cases in which
neither of the other two categories clearly impels transfer to adult court. The subjective
factors can include factors such as age, maturity, character, personality and family
relationships and controls. Seven Minors, 99 Nev. at 435, 664 P.2d at 952. Although the
nature and seriousness of these alcohol and drug-related homicides alone support transfer, the
subjective factors relating to Jeremiah appear to have been carefully considered by the
juvenile court, and we see no abuse of discretion in the juvenile court's not weighing these
factors in Jeremiah's favor so as to retain him in the juvenile court.
One of the tragic aspects of this case is the fact that Jeremiah has been involved in the use
of drugs and alcohol since he was twelve or thirteen years old. His parents either ignored or
tacitly approved of Jeremiah's conduct. These abuses, it is claimed, led to the arrest of
Jeremiah's emotional development and to a diminished responsibility on his part for his
criminal actions.
__________

4
Exemplary and punitive damages: Injury caused by operation of vehicle after consumption of alcohol
or controlled substance.
1. In an action for the breach of an obligation, where the defendant caused an injury by the operation
of a motor vehicle in violation of NRS 484.39 or 484.3795 after willfully consuming or using alcohol or
another substance, knowing that he would thereafter operate the motor vehicle, the plaintiff, in addition to
the compensatory damages, may recover damages for the sake of example and by way of punishing the
defendant.
to the arrest of Jeremiah's emotional development and to a diminished responsibility on his
part for his criminal actions. Still, Jeremiah was able to manage his parents' retail sales
business and generally conducted himself more as an adult than as a child. Jeremiah is
blessed with a high level of natural intelligence, and, to his credit, has displayed a rather
mature appreciation of the magnitude of his crimes and a sincere remorse for the harm that he
has inflicted on innocent victims. The record contains some earnest pleading by counselors
and others who believe sincerely that Jeremiah should be retained in the juvenile court and
that his transfer to the adult court to be prosecuted for crimes that call for mandatory prison
sentences would result in a waste of Jeremiah's life. We must, however, all face the bitter
truth: Jeremiah was, but for his not meeting the legal criterion for adulthood, an adult at the
time he committed these crimes. He has committed an adult crime; and he must face adult
punishment. It is too bad; but this is the truth of the matter.
[Headnote 3]
Jeremiah Bopko will now be treated by our law as an adult and not as a child. If Jeremiah
is convicted of any of the stated charges, he faces a mandatory term of imprisonment of at
least one year. Because of this, we make note of a fact made known to us at oral argument:
Jeremiah was placed in confinement at the time of his arrest on April 2, 1990. We are advised
that he has been locked up since this time in a juvenile detention facility. Even though these
juvenile institutions are not thought of as providing punitive confinement, there can be no
doubt that Jeremiah has been involuntarily incarcerated since April 2, 1990. If the time comes
that Jeremiah faces sentencing for felony convictions arising out of this incident, there is no
reason why he should not be given credit under NRS 176.055
5
for confinement time already
served; and we so hold.
The juvenile court concluded as a matter of law that the State has shown, by clear and
convincing evidence, that Jeremiah J. Bopko falls within the criteria set forth in Seven
Minors and that the State has shown by clear and convincing evidence that the public
safety and welfare require the granting of the Motion to Certify. . . ."
__________

5
1. Except as otherwise provided in subsection 2, whenever a sentence of imprisonment in the county
jail or state prison is imposed, the court may order that credit be allowed against the duration of the
sentence, including any minimum term thereof prescribed by law, for the amount of time which the
defendant has actually spent in confinement before conviction, unless his confinement was pursuant to a
judgment of conviction for another offense. Credit allowed pursuant to this subsection does not alter the
date from which the term of imprisonment is computed.
the public safety and welfare require the granting of the Motion to Certify . . . . The juvenile
court did not err in reaching this conclusion and in transferring this youth to the adult court.
The judgment of the juvenile court is affirmed.
Mowbray, C. J., Rose, Steffen and Young, JJ., concur.
____________
107 Nev. 932, 932 (1991) State v. Langarica
THE STATE OF NEVADA, Appellant, v. HERMELIO GARCIA LANGARICA,
Respondent.
No. 21828
December 20, 1991 822 P.2d 1110
Appeal from an order granting respondent post-conviction relief. Second Judicial District
Court, Washoe County; Peter I. Breen, Judge.
Following conviction for trafficking in 200, but less than 400, grams of cocaine, defendant
petitioned for post-conviction relief on grounds of ineffective assistance of counsel, seeking
to set aside guilty plea. The district court granted petition, and State appealed. The supreme
court, Young, J., held that defendant's guilty plea was knowing and voluntary.
Reversed.
Attorney, and Scott W. Edwards, Deputy District Attorney, Washoe County, for Appellant.
Plater & Picker, Reno, for Respondent.
1. Criminal Law.
To state claim of ineffective assistance of counsel sufficient to invalidate judgment of conviction based on guilty plea, defendant
must demonstrate reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going
to trial. U.S.C.A.Const. amend. 6.
2. Criminal Law.
Defendant's guilty plea was knowing and voluntary despite defense counsel's mistaken belief that trial court could impose sentence
below statutory minimum, where defendant was correctly informed by trial court and by his counsel of possible sentence and defendant
knew he was taking chance on receiving maximum penalty. U.S.C.A.Const. amend. 6.
3. Criminal Law.
There was no prejudice to defendant resulting from language barrier in connection with guilty plea; there was no evidence to show
that translation difficulties caused defendant any misunderstanding regarding his guilty plea and there were no allegations of inaccurate
translation.
OPINION
On August 25, 1989, Hermelio Garcia Langarica (Langarica) pled guilty to a reduced
charge of trafficking in 200, but less than 400, grams of a schedule II substance (cocaine). On
November 8, 1989, Judge Breen sentenced Langarica to six years imprisonment and imposed
the minimum mandatory fine of $100,000. Upon a petition for post-conviction relief, based
on ineffective assistance of counsel, Judge Breen set aside Langarica's conviction and guilty
plea and reinstated the charges. The State appeals.
DISCUSSION
[Headnote 1]
To state a claim of ineffective assistance of counsel sufficient to invalidate a judgment of
conviction based on a guilty plea, a defendant must demonstrate a reasonable probability that,
but for counsel's errors, he would not have pled guilty and would have insisted on going to
trial. Hill v. Lockhard, 474 U.S. 52 (1985); Warden v. Lyons, 100 Nev. 430, 683 P.2d 504
(1984), cert. denied, 471 U.S. 1004 (1985).
In his petition, Langarica asserted that he thought he would be sentenced to probation or
time served, and that his counsel told him that he would argue for probation at sentencing.
The sentencing range for Langarica was five to twenty years. When Langarica entered his
plea of guilty, the court specifically asked him what the punishment for the crime could be,
and Langarica answered through an interpreter, Five to 20 years. The court twice told
Langarica that he would take his chances on the maximum punishment and asked if
Langarica was willing to take such a chance. Langarica answered Yes both times. The court
informed Langarica that he would serve five years in prison as a minimum, unless Langarica
provided substantial assistance. Upon asking Langarica if he understood, Langarica answered,
Yes, I understand. The court asked Langarica if he was involved in the drug deal and if he
was guilty of the offense. Langarica answered Yes to both questions.
At the post-conviction relief evidentiary hearing, defense counsel testified that Langarica
repeatedly asked him if he could be sentenced to probation.
sentenced to probation. Defense counsel informed Langarica that he could not get probation,
but that he would argue for it at sentencing. Defense counsel felt that, even though there was
a minimum sentence of five years, the court had the inherent power to impose any sentence
the court saw fit.
In granting the petition for post-conviction relief, the district court stated that the canvas at
the guilty plea hearing was proper, but that the court was troubled about defense counsel's
position concerning the minimum sentence and the availability of probation, given defense
counsel's mistaken beliefs about the court's powers to impose sentence. The court also stated
that the language barrier complicated Langarica's plea.
[Headnote 2]
The State argues that, even if Langarica had relied on incorrect sentencing information, he
is not entitled to post-conviction relief. We agree. The controlling authority is Rouse v. State,
91 Nev. 677, 541 P.2d 643 (1975), wherein this court stated:
Rouse, however, has attempted to explain the contradiction between this testimony and
his present position by characterizing the taking of his plea as merely a pro forma
routine colloquy entered into the record solely for the sake of legal technicality, but
without any real substance in fact. We reject such an argument as entirely meritless. In
Bryan v. United States, 492 F.2d 775 (5th Cir. 1974), the Third Circuit Court of
Appeals [sic] observed that nullification of a plea on grounds similar to the one
advanced in the instant case would reduce solemn legal proceedings to a charade, which
would go far to undermine decisional finality, which is necessary to the effective
administration of justice. We agree. Were a plea to be considered involuntary because
of subjective reliance on advice of counsel regarding a potential sentence, no plea
would be immune from attack. Consequently, we hold that mere subjective belief of a
defendant as to potential sentence, or hope of leniency, unsupported by any promise
from the State or indication by the court, is insufficient to invalidate a guilty plea as
involuntary or unknowing.
Id. at 679, 541 P.2d at 644. In the case before us, Langarica was correctly informed, both by
the court and his counsel, of the possible sentence when he pled guilty. Judge Breen
thoroughly and precisely canvassed Langarica regarding the plea. Were we to hold that
post-conviction relief was proper here, we would be reducing the guilty plea canvas to a mere
pro forma routine colloquy. We are loathe to do so. Langarica knew the sentence
possibilities; he informed the court of the correct sentencing range in his own words.
range in his own words. He knew he was taking his chances on the maximum penalty. He
knew probation was not available unless he provided substantial assistance. With these facts
before us, we hold that Langarica's guilty plea was knowing and voluntary.
[Headnote 3]
We additionally find that there was no prejudice to Langarica imposed by the language
barrier. There are no allegations of inaccurate translation and no evidence to show that
translation difficulties caused Langarica any misunderstanding regarding his guilty plea.
Indeed, at the post-conviction hearing, Langarica expressly declined to call the interpreter as a
witness to testify regarding any communication difficulties.
Accordingly, we reverse the grant of post-conviction relief and reinstate Langarica's guilty
plea and sentence.
Rose and Steffen, JJ., concur.
I cannot join in the majority's decision to reinstate Langarica's guilty plea and sentence.
Based on his own observations as a distinguished trial judge, Judge Breen determined that
Langarica did not fully understand the full ramifications of the plea bargain into which he had
entered. I do not agree that Judge Breen abused his discretion by correcting what he believed
to be an inequitable situation. I would therefore uphold the judgment of the trial court.
I dissent because I do not think that Judge Breen was guilty of any abuse of discretion in
this case. The district judge advisedly made the informed observation that Langarica, who
does not speak English, was confused about probation availability. The judge further noted
that Langarica knew that he was facing more serious charges if the guilty plea were set aside
so that Langarica had no motivation to fabricate under these circumstances.
The district judge also concluded, based on his evaluation of Langarica's testimony and
other factors in the record, that counsel was ineffective concerning . . . one vital area,
namely, counsel's imparting to Langarica an incorrect belief relating to the Court's powers
concerning probation and sentencing in drug trafficking cases. The district judge took into
consideration defense counsel's inadequate argument at the sentencing hearing. The
inadequacy of counsel in this case was, according to the district judge, further complicated
by the language barrier. All of the foregoing brought Judge Breen to the reasoned
conclusion that the proceedings were "confusing and misleading" to Langarica.
of the foregoing brought Judge Breen to the reasoned conclusion that the proceedings were
confusing and misleading to Langarica. I do not see how we can say that Langarica was not
confused or misled when the judge who was sitting there says that he was. I see no breach of
discretion on the part of the trial judge and would uphold the judgment of the trial court.
____________
107 Nev. 936, 936 (1991) McKinzie v. Nev. Livestock Prod. Credit
JANET F. McKINZIE, Individually and as Trustee of the Duayne D. Christensen Living
Trust, Appellant, v. NEVADA LIVESTOCK PRODUCTION CREDIT ASSOCIATION,
Respondent.
No. 21873
December 20, 1991 822 P.2d 1113
Appeal from a district court judgment in an action seeking recovery on a deficiency
judgment and enforcement of a guaranty. Fourth Judicial District Court; Joseph O. McDaniel,
Judge.
Appeal was taken from judgment entered in the district court awarding compensatory and
punitive damages in action to recover deficiency judgment and for fraud. The supreme court
held that evidence in record on appeal did not support judgment.
Woodburn, Wedge & Jeppson and Lynne K. Jones, Reno, for Appellant.
Marvel & Hansen, Elko, for Respondent.
Bills and Notes.
Evidence in record on appeal did not support award of compensatory and punitive damages in action for deficiency judgment on
note and fraud, notwithstanding contention that award was based on oral and documentary evidence that had been presented at
unilateral prove-up hearing that was held before entry of original default judgment, which was subsequently vacated and then
reinstated by trial court; record of prove-up hearing was not included in record on appeal, and only evidence was 15 exhibits from
hearing that were not introduced at trial that resulted in court's award. NRCP 52(a).
OPINION
Per Curiam:
The underlying claim in this case involves a promissory note. Respondent, Nevada
Livestock Production Credit Association {Nevada Livestock), sued appellant, Janet
McKinzie {McKinzie), and others seeking a deficiency judgment.
(Nevada Livestock), sued appellant, Janet McKinzie (McKinzie), and others seeking a
deficiency judgment. Nevada Livestock also alleged fraud and sought punitive damages.
Eventually, a very short trial was held. McKinzie did not appear and was not represented at
the trial. In December of 1990, a previously vacated default judgment was reinstated against
McKinzie, awarding Nevada Livestock compensatory damages of more than $700,000.00 and
punitive damages of $1,000,000.00.
On appeal, McKinzie raises many issues, the most serious of which involves the lack of
evidence found in the record on appeal. Apparently, a unilateral prove-up hearing was held
before the original default judgment was entered in 1988. According to Nevada Livestock,
evidence was presented at that hearing, and it is that evidence which supports the judgment of
the district court. Unfortunately, an account of that 1988 hearing is not found in the record on
this appeal. Accordingly, we conclude that, based upon the lack of substantial evidence found
in the record on appeal, this court has little choice but to reverse and remand this case.
Under NRCP 52(a), the district court's judgment regarding questions of fact will generally
not be disturbed unless the judgment is clearly erroneous or not based upon substantial
evidence. Stickleman v. Moroni, 97 Nev. 405, 407, 632 P.2d 1159, 1161 (1981). The trial
conducted on December 4, 1990, was very short and without the presence of McKinzie or
counsel appearing on her behalf.
1
The transcript from the trial is less than four pages long.
No evidence was presented, and no exhibits were introduced by the complaining party. Based
upon McKinzie's failure to be in a position to present any evidence, the court simply
reinstated the default judgment entered on June 14, 1988.
Nevada Livestock contends that the court's decision was based upon the oral and
documentary evidence that had been presented in 1988. Unfortunately, the record of the
1988 hearing is not included in the record on appeal. The only evidence in the record
(which was not introduced at the December 4 trial) are fifteen exhibits, apparently from the
1988 hearing. McKinzie asserts that insufficient evidence was presented with respect to all of
the findings of the court.
Upon a thorough review of the record, we conclude that it is simply insufficient to support
the factual findings of the district court. Although sufficient evidence may have in fact been
presented at the 1988 hearing, it is impossible for this court to review that evidence when no
transcript of the 1988 hearing is found in the record on appeal. The record on appeal is very
incomplete.
__________

1
The record suggests that McKinzie did not receive notice of the trial date prior to the occurrence of the
trial.
incomplete. There is virtually no evidence in the record to support the findings of the district
court. Based upon the inadequacy of the record, we must reverse and remand this case.
____________
107 Nev. 938, 938 (1991) Chappaz v. Golden Nugget
RENE CHAPPAZ, Appellant, v. GOLDEN NUGGET, Respondent.
No. 21904
December 20, 1991 822 P.2d 1114
Appeal from a district court order affirming the decision of one administrative appeals
officer regarding worker's compensation and reversing the decision of another appeals officer.
Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
In workers' compensation case, appeals officer required that claimant undergo surgery as
prerequisite to recovery of temporary total disability (TTD) benefits, but a second appeals
officer after a rehearing ordered the employer to provide claimant with vocational
rehabilitation maintenance benefits and ordered referral of claimant to designated rating
physician for evaluation for permanent partial disability. Claimant petitioned for judicial
review of first officer's decision, and employer petitioned for judicial review of second
officer's decision. The district court affirmed the first officer's decision, but reversed the
second officer's decision, and claimant appealed. The supreme court held that: (1) evidence
supported conclusion that claimant reasonably refused to undergo recommended surgical
treatment for cervical disc and neurological problems, so that refusal to undergo
recommended surgery did not disqualify claimant from compensation benefits; (2) doctor's
report which specified past date from which claimant had been disabled was properly
considered in determining whether claimant had been unable to work at pre-accident
employment since date of injury; and (3) evidence supported having claimant evaluated for
permanent partial disability when claimant reasonably refused to undergo recommended
surgery.
Reversed.
King, Clark, Gross & Sutcliffe, Las Vegas, for Appellant.
Jerry Collier Lane, Las Vegas, for Respondent.
Court reviewing administrative adjudicator's decision may not substitute its judgment for that of adjudicator as to weight to be
given evidence on question of fact.
Court reviewing administrative adjudicator's decision should reverse appeals officer's decision where that decision has been
affected by error of law.
Evidence supported conclusion that workers' compensation claimant reasonably refused to undergo recommended surgical
treatment for cervical disc and neurological problems, so that refusal to undergo recommended surgery did not disqualify claimant
from compensation benefits. NRS 616.565, subds. 2, 3.
Competent medical authority must establish that because of industrial related injury, injured worker is physically unable to return
to preinjury employment, for claimant to be entitled to workers' compensation benefits.
Doctor's report which specified past date from which workers' compensation claimant had been disabled was properly considered
in determining whether claimant had been unable to work at preaccident employment since date of injury.
Evidence supported having workers' compensation claimant evaluated for permanent partial disability when claimant reasonably
refused to undergo recommended therapeutic surgery. NRS 616.605.
OPINION
Per Curiam:
On May 27, 1985, 53-year-old Rene Chappaz (Chappaz) was injured when he slipped on
the floor in the kitchen of the Golden Nugget hotel (Nugget), where he worked as a cook. The
first doctor to examine Chappaz determined that he had a cervical strain and should stay
home from work for one week. Chappaz complained of persisting pain, however, and after
seeing several other doctors, he ultimately came under the care of Dr. Gary Marrone.
On November 25, 1985, the Gibbens Company, representing the Nugget, a self-insured
employer, sent Dr. Marrone a letter stating that Chappaz was six months post-injury and still
disabled from work, and requesting that Dr. Marrone describe any objective medical findings
which continued to disable Mr. Chappaz. The following day, Dr. Marrone issued Chappaz a
return to work note.
Chappaz underwent several physical examinations and medical tests by other doctors, but
the results indicated nothing abnormal. On February 10, 1987, Dr. George Schanz wrote a
letter stating that Chappaz was suffering from a degenerative cervical disc disease and
that there may be some instability in the cervical spine.
that Chappaz was suffering from a degenerative cervical disc disease and that there may be
some instability in the cervical spine. He recommended myelographic investigation. Dr.
Schanz also stated that Chappaz had been disabled since May of 1985 and that he probably
would not be able to return to work unless something further could be done. Chappaz then
was referred to Dr. Richard Lewin, who described nerve root compression in the neck and
agreed with Dr. Schanz' recommendation for myelographic studies. An MRI revealed a
bulging disc at C4-5 and compression at C-5. On August 3, 1987, Dr. Lewin submitted a
report recommending an anterior cervical diskectomy and interbody fusion.
Chappaz requested retroactive temporary total disability (TDD) benefits, but the insurer
advised him that his benefits would be reinstated only when he had availed himself of
medical treatment necessary to relieve his condition. An administrative hearing officer
affirmed the insurer's denial of benefits, and the decision ultimately was affirmed by Appeals
Officer Charles York on March 6, 1989.
Meanwhile, the insurer had referred the case to a Medical Review Board (Medical Board)
comprised of surgeons, to determine the cause of the problem and the reasonableness of the
recommended surgery. The Medical Board met on August 29, 1988, and in a report dated
August 31, 1988, concluded that Chappaz's fall had caused the current disc or neurological
problem for which surgery was recommended. The report further stated that surgery was a
reasonable approach to Chappaz' pain and that a myelogram was recommended prior to any
surgical exploration. Finally, the report stated that the purpose of the surgery was to relieve
chronic pain and that there was a high probability of success.
On November 29, 1989, after a rehearing, Appeals Officer Michael Rowe ordered the
Nugget to provide Chappaz with vocational rehabilitation maintenance benefits commencing
July 8, 1988, the date of his request for benefits. It was brought to our attention at oral
argument that during the period in question, Appeals Officer York was replaced by Appeals
Officer Rowe. The appeal to Officer York involved the issue of whether Chappaz was able to
return to work, as he had been issued a return to work note from Dr. Marrone. The appeal
to Officer Rowe involved a later time period, after it became clear that Chappaz had declined
the recommended surgery. Officer York's decision dealt with the period beginning with
Chappaz' injury and ending with the surgery recommendation issued August 3, 1987.
Pursuant to Officer Rowe's ruling, Chappaz was referred to a designated rating physician,
who determined that Chappaz had a forty-six percent permanent partial disability.
Chappaz subsequently filed a petition for judicial review of the March 6, 1989 decision of
Appeals Officer York. Soon after this petition was filed, the Nugget filed a petition for
judicial review of the November 29, 1989 decision of Appeals Officer Rowe. Although the
appeal officers' decisions discussed different benefits and different time periods, the facts and
evidence presented to each were the same. Because the decisions conflict, they rendered
confusing Chappaz' entitlement to benefits.
The district court rendered judgment on both petitions. First, the court affirmed Appeals
Officer York's March 6, 1989, decision requiring surgery as a prerequisite to recovery of TTD
benefits. Next, the court found that the November 29, 1989, decision of Appeals Officer
Rowe misconstrued applicable law and thus was clearly erroneous. The court reversed the
decision, concluding that: (1) Officer Rowe's finding that Chappaz had been unable to work
at his pre-accident employment since the date of the injury constitutes an abuse of discretion
in that it was not supported by the record on appeal; (2) Dr. Marrone had issued a full-duty
return to work release, and no subsequent competent medical authority issued a disability slip
thereafter; and (3) Rowe improperly based one of his findings on the report of an
unauthorized physician who submitted a retroactive medical statement that Chappaz had been
disabled since May of 1985.
We conclude that Officer Rowe's decision was based on substantial evidence in the record
and that it was not affected by error of law. Moreover, because the appeals officers' decisions
conflict, and Officer Rowe's decision addresses the issues more thoroughly and more recently,
we are compelled to reverse the district court's approval of Officer York's decision.
DISCUSSION
[Headnotes 1, 2]
A court reviewing an administrative adjudicator's decision may not substitute its judgment
for that of the adjudicator as to the weight to be given the evidence on questions of fact.
Nevada Industrial Commission v. Hildebrand, 100 Nev. 47, 52, 675 P.2d 401, 404 (1984).
The reviewing court should reverse an appeals officer's decision, however, where the decision
has been affected by error of law. Warpinski v. SIIS, 103 Nev. 567, 570, 747 P.2d 227, 230
(1987).
Chappaz' Refusal to Undergo the Recommended Surgery
[Headnote 3]
2. No compensation is payable for the death, disability or treatment of an employee
if his death is caused by, or insofar as his disability may be aggravated, caused or
continued by, an unreasonable refusal or neglect to submit to or to follow any
competent and reasonable surgical treatment or medical aid.
insofar as his disability may be aggravated, caused or continued by, an unreasonable
refusal or neglect to submit to or to follow any competent and reasonable surgical
treatment or medical aid.
3. If any employee persists in insanitary or injurious practices which tend to either
imperil or retard his recovery, or refuses to submit to such medical or surgical treatment
as is reasonably essential to promote his recovery, his compensation may be reduced or
suspended.
(Emphasis added.) The Medical Board determined that the surgical treatment recommended
was a reasonable approach to Chappaz' problem. Therefore, the question presented is whether
Chappaz' choice to decline the surgery was reasonable. Chappaz cites 1 Larson, The Law of
Workmen's Compensation 13.22(f) (1991), which states in pertinent part:
Reasonableness of refusal of surgery
If the risk is insubstantial and the probability of cure high, refusal will result in a
termination of benefits. . . . But if there is a real risk involved, and particularly if there
is a considerable chance that the operation will result in no improvement or even
perhaps in a worsening of the condition, the claimant cannot be forced to run the risk at
peril of losing his statutory compensation rights. In such cases, and particularly in the
commonest operations presenting this problemhernia and intervertebral discmost
courts will not at present disturb a finding that refusal to submit to the operation is
reasonable, since the question is a complex fact judgment involving a multitude of
variables, including claimant's age and physical condition, his previous surgical
experience, the ratio of deaths from the operation, the percentage of cures, and many
others.
(Footnotes omitted; emphasis added.) In determining that Chappaz' refusal to undergo the
surgery was not unreasonable, Appeals Officer Rowe specifically discussed the risks
involved. Because Officer Rowe's decision addresses the facts and is based on substantial
evidence and a correct interpretation of the law, we conclude that he did not err in ruling as
he did.
Chappaz' Entitlement to Retroactive Vocational Rehabilitation Maintenance Benefits
Chappaz contends that, regardless of his decision not to undergo surgery, he is entitled to
TTD benefits because he has been disabled and unable to work since his accident. He asserts
that he should receive TTD benefits until he either receives a full duty release or acquires
skills which will enable him to return to gainful employment within the limitations imposed
by his accident.
gainful employment within the limitations imposed by his accident. Finally, Chappaz argues
that his ability to return to his pre-accident employment is a question of fact which properly
was addressed by Officer Rowe.
Appeals Officer York found that Chappaz was returned to work by Dr. Marrone on
March 5, 1986, and that no competent medical authority subsequently has found Chappaz to
be unable to work. Appeals Officer Rowe, however, found that Chappaz has been disabled
since May of 1985, and that he has been unable to work at his pre-accident employment since
the date of the injury. The district court found that Officer Rowe incorrectly accepted as fact
the retroactive application of Dr. Schanz' report.
[Headnote 4]
NRS 616.222 provides that when an injured worker is unable to return to pre-accident
employment, he is entitled to vocational rehabilitation until he can return to gainful
employment consistent with the limitations imposed by his industrial accident. Competent
medical authority must establish that because of the industrial related injury, the injured
worker is physically unable to return to his pre-injury employment. See Diaz v. Golden
Nugget, 103 Nev. 152, 734 P.2d 720 (1987); Nevada Industrial Comm. v. Taylor, 98 Nev.
131, 642 P.2d 598 (1982); NAC 616.076.
[Headnote 5]
Dr. Schanz' report was dated January 23, 1987, before either appeals officer's decision was
rendered. We are unable to determine why Officer York's decision does not discuss this
report. As the Nugget offers no authority forbidding a hearing officer from relying on a
retroactive medical report, we conclude that Officer Rowe did not err in considering Dr.
Schanz' report in reaching his decision.
Chappaz' Entitlement to The Permanent Partial Disability Evaluation
[Headnote 6]
Chappaz argues that, for the following reasons, Appeals Officer Rowe correctly
determined that Chappaz should be evaluated for permanent partial disability: (1) the risks of
surgery compelled Chappaz to decline to undergo the only remaining therapeutic option; (2)
no further medical treatment was offered, and (3) his condition was stationary and stable.
NRS 616.605 states in part:
1. Every employee, . . . who is injured by an accident arising out of and in the
course of employment is entitled to receive the compensation provided for permanent
partial disability.
2. The insurer shall select a physician from a group of rating physicians designated
by the administrator, to determine the percentage of disability in accordance with the
American Medical Association's Guides to the Evaluation of Permanent Impairment . . .
.
Because Chappaz reasonably refused to undergo the surgery, he is entitled to permanent,
partial disability benefits and thus properly received the evaluation.
CONCLUSION
We hereby reverse the district court's decision and hold that Appeals Officer Rowe's
decision of November 29, 1989, be reinstated.
____________
107 Nev. 944, 944 (1991) Johnston v. State
JOHN CLAY JOHNSTON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22177
December 20, 1991 822 P.2d 1118
Appeal from judgment of conviction upon a jury verdict of nine counts of possession of a
controlled substance, and one count each of conspiracy to sell, possession of, and trafficking
in a controlled substance. Eighth Judicial District Court, Clark County; Myron E. Leavitt,
Judge.
Defendant was convicted in the district court of conspiracy to sell, possession of, and
trafficking in methamphetamine and ephedrine. Defendant appealed. The supreme court held
that: (1) defendant had received required notice of his indictment before grand jury; (2) 12
member grand jury indictment was not improper; and (3) jury could have found that drugs
containing ephedrine discovered during search of defendant's apartment were not intended for
over-the counter sale.
Affirmed.
James Tufteland and Thomas L. Leen, Chief Deputy District Attorneys, Clark County, for
Respondent.
1. Grand Jury.
Defendant has right to testify in front of grand jury before he or she is indicted, and defendant must receive reasonable notice of
grand jury proceeding. NRS 172.095, subd. 1, 172.241.
2. Grand Jury.
Finding that defendant received proper notice of grand jury proceedings against him was not abuse of discretion where, although
defendant testified at preliminary hearing that he was never given notice, either orally or in writing, four other witnesses testified that
defendant had received required notice. NRS 172.095, subd. 1, 172.241.
3. Grand Jury.
Grand jurors are to participate in grand jury proceedings for fixed period of time, and there is no express statutory provision
prohibiting absence of grand juror from one meeting.
4. Grand Jury.
There is no express statutory provision requiring that 17 grand jury members be present every time grand jury meets, and there is
longstanding practice of carrying on proceedings, regardless of whether all 17 grand jurors are present.
5. Grand Jury.
As long as at least 12 grand jurors hear matter presented and vote to return indictment against defendant, court has complied with
statutory grand jury requirements. NRS 172.255.
6. Grand Jury; Indictment and Information.
District court complied with requirements for grand jury indictment where grand jury consisted of 13 members, at least 12 of
whom voted to indict defendant. NRS 172.255.
7. Drugs and Narcotics.
In prosecution for conspiracy to sell, possession of, and trafficking in ephedrine, jury could find that ephedrine which defendant
sold was not prepared with ingredients for over-the counter sale, even though substance seized by police officers during search of
defendant's apartment was not pure ephedrine.
OPINION
Per Curiam:
Detective Frederick Davis, an undercover narcotics officer with the Las Vegas
Metropolitan Police Department, was introduced to Ellen Wilhelmi (Wilhelmi), originally a
co-defendant in this case, through a confidential informant. He purchased drugs from
Wilhelmi on several occasions between January 23, 1990, and March 8, 1990. On each
occasion, Davis called Wilhelmi to arrange a meeting, picked her up at her home, gave her
money, and drove her to the residence of appellant John Clay Johnston (Johnston). Wilhelmi
would go into the apartment and return with narcotics which she purported to be
methamphetamine.
On March 8, 1990, Detective Sherri Getchman accompanied Davis and Wilhelmi and, in
order to meet Johnston, claimed she had to use the restroom in the apartment. While there,
Getchman arranged a meeting between Johnston and Davis. Davis and Getchman met
Johnston in a bar and talked about methamphetamine. According to both detectives, Johnston
told them that he wanted to produce and sell his own drugs and that he knew Ellen Wilhelmi
was selling his methamphetamine to someone.
On April 6, 1990, the narcotics unit searched Johnston's apartment, seized the drugs, and
arrested Johnston. On May 11, 1990, Johnston was indicted for the charges of conspiracy to
sell, possession of, and trafficking in methamphetamine and ephedrine. On August 13, 1990,
Johnston sought a writ of habeas corpus on the ground that he never received notice of the
grand jury proceedings. After an evidentiary hearing, the district court denied Johnston's
motion and ordered the writ discharged and dissolved. After a jury trial, Johnston was
convicted on all counts.
1
[Headnotes 1, 2]
First, Johnston argues that the State failed to give him notice and opportunity to be heard
before the grand jury. Because NRS 172.095(1) and NRS 172.241 provide a defendant with
the right to testify in front of a grand jury before he or she is indicted, the defendant must
receive reasonable notice of the grand jury proceeding. Sheriff v. Marcum, 105 Nev. 824,
826-827, 783 P.2d 1389, 1390 (1989). At the pretrial hearing, all parties agreed that it was a
matter of credibility of the witnesses as to whether Johnston received the required Marcum
Notice. Johnston testified that he was never given notice, either orally or in writing. The
State produced four witnesses, however, to support its contention that Johnston received
notice of the proceeding. Therefore, we conclude that the district court did not abuse its
discretion in finding in favor of the State.
[Headnotes 3-6]
Next, Johnston argues that he was indicted improperly because the grand jury was
comprised of thirteen people instead of seventeen. The record indicates that the grand jury
consisted of thirteen members, at least twelve of whom voted to indict Johnston. We
conclude that the district court properly complied with the requirements for a grand jury
indictment. In selecting the grand jury, the sheriff shall summon the proposed grand jurors,
and the district judge presiding over the impaneling of the grand jury shall select at random
from their number 17 persons to constitute the grand jury and 12 persons to act as alternate
grand jurors. NRS 6.110(3). If for any reason a person selected is unable to serve on the
grand jury until the completion of its business, the district judge shall select one of the
alternate grand jurors to serve in his or her place. NRS 6.110(5). The selected grand jurors are
to participate in grand jury proceedings for a fixed period of time, generally one to two
years, and there is no express statutory provision prohibiting the absence of a grand juror
from one meeting.
__________

1
Johnston was sentenced to serve in the Nevada State Prison as follows: For Count I, 3 years; Count II, 8
years; Count III, 8 years; Count IV, 8 years; Count V, 8 years; Count VI, 8 years; Count VII, 8 years; Count
VIII, 8 years; Count IX, 8 years; Count X, 8 years; Count XI, 8 years, Count XII, 8 years; Count XIII, 3 years;
and Count XIV, 9 years. He also must pay a fine of $50,000.00 plus restitution. Counts I-XIII are to run
concurrent to each other, and Count XIV is to run consecutive to Counts I-XIII.
to participate in grand jury proceedings for a fixed period of time, generally one to two years,
and there is no express statutory provision prohibiting the absence of a grand juror from one
meeting. Nor is there an express provision requiring seventeen members every time the
selected grand jury meets. In fact, there is a long-standing practice of carrying on the
proceedings, regardless of whether or not all seventeen grand jurors are present. As long as at
least twelve members hear the matter presented and vote to return an indictment against the
defendant, the court has complied with the requirements. See NRS 172.255.
[Headnote 7]
Finally, Johnston asserts that the State failed to present substantial evidence that the
ephedrine he sold was not compounded with ingredients for over-the-counter sale. Even
though the substance was not pure ephedrine, there is ample expert testimony and substantial
evidence to support the jury's inference that the drugs containing ephedrine were not prepared
for dispensing or over-the-counter sale. Accordingly, we hereby affirm the judgment of
conviction entered by the district court.
____________
107 Nev. 947, 947 (1991) Efrain M., a Minor v. State
EFRAIN M., a Minor, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22044
December 20, 1991 823 P.2d 264
Appeal from an order finding the appellant to be a delinquent child, suspending his
sentence, and placing him on formal probation; Juvenile Division of the Sixth Judicial
District Court, Humboldt County; Jerry V. Sullivan, Judge.
Juvenile was found guilty in the district court, of delinquent act of battery with intent to
commit sexual assault, and he appealed. The supreme court held that juvenile's notice of
intent to introduce extrinsic evidence of complaining witness' prior false accusations of
assault should not have been dismissed as untimely, and juvenile was entitled to evidentiary
hearing.
James J. Jackson, State Public Defender, James P. Logan, Deputy Public Defender,
Frankie Sue Del Papa, Attorney General, Carson City; Michael McCormick, District
Attorney, R. Griffy, Deputy District Attorney, Humboldt County, for Respondent.
1. Witnesses.
Rape shield statute prohibits person accused of sexual assault or seduction from presenting evidence of victim's previous sexual
conduct to impeach victim unless prosecutor has presented such evidence or victim has testified about such conduct. NRS 50.090.
2. Witnesses.
Collateral evidence rule allows questions on cross-examination concerning witness' past conduct; however, if witness denies past
conduct, extrinsic evidence contradicting denial is generally inadmissible. NRS 50.085, subd. 3.
3. Witnesses.
In sexual assault case, defense counsel may ask complaining witness about prior false sexual assault charges and, if witness denies
such behavior, defense counsel may introduce extrinsic evidence of false charges. NRS 50.085, subd. 3, 50.090.
4. Witnesses.
If defendant in sexual assault case wishes to cross-examine complaining witness about prior false accusations of sexual assault and
to introduce extrinsic evidence of such accusations, defendant must first file notice of intent to do so; upon filing of notice, trial court
must hold hearing outside jury's presence to determine whether cross-examination is warranted and whether extrinsic evidence is
admissible, and it is necessary for defendant to show at such hearing by a preponderance of the evidence that accusations were made,
that accusations were false and that extrinsic evidence is more probative than prejudicial. NRS 50.085, subd. 3, 50.090.
5. Witnesses.
In sexual assault case, accused's notice of intent to present extrinsic evidence of complaining witness' prior false accusations of
sexual assault should not have been dismissed as untimely; although defendant was required to file notice of intent and although
subsequent hearing had to be held outside jury's presence, no requirement as to timeliness has been established and case law suggested
that hearing could take place during trial. NRS 50.085, subd. 3, 50.090.
6. Witnesses.
In sexual assault case, defendant seeking to introduce extrinsic evidence of complaining witness' prior false accusations of sexual
assault does not have to describe specific prior accusations in his notice of intent to introduce such evidence. NRS 50.085, subd. 3,
50.090.
OPINION
Per Curiam:
Appellant Efrain M. (Efrain) was found guilty of a delinquent act, battery with intent to
commit sexual assault. Efrain was a minor at the time of the incident; the district court
ordered him committed to the Nevada Youth Training Center, stayed this order, and placed
him on formal probation for one year.
On appeal, Efrain argues that the district court should have ordered an evidentiary hearing
so that he could attempt to establish that the complaining witness had lodged prior false
accusations of sexual assault. Specifically, Efrain contends that the district court erred when
it dismissed his notice of intent to present extrinsic evidence of prior false accusations as
untimely.
district court erred when it dismissed his notice of intent to present extrinsic evidence of prior
false accusations as untimely. We agree.
[Headnote 1]
NRS 50.090, Nevada's rape shield statute, prohibits a person accused of sexual assault or
seduction from presenting evidence of the victim's previous sexual conduct to impeach the
victim unless the prosecutor has presented such evidence or the victim has testified about the
conduct. In Miller v. State, 105 Nev. 497, 501, 779 P.2d 87, 89 (1989), we explained that
prior false accusations of sexual abuse or sexual assault by complaining witnesses do not
constitute previous sexual conduct' for rape shield purposes; therefore, NRS 50.090 does
not bar the cross-examination of a complaining witness about prior false accusations
[concerning sexual behavior]. We specified that defense counsel may cross-examine a
complaining witness about previous fabricated accusations, and if the witness denies making
the allegations, counsel may introduce extrinsic evidence to prove that, in the past, fabricated
charges were made. Id.
[Headnotes 2, 3]
In Miller, we also noted that the introduction of extrinsic evidence of prior false
accusations encroaches on Nevada's collateral evidence rule, NRS 50.085(3). NRS 50.085(3)
allows questions, on cross-examination, of a witness's past conduct. If, however, the witness
denies the past conduct, extrinsic evidence contradicting the denial is generally inadmissible.
In Miller, we explained that [t]o the extent that our holding transcends the limitations of
NRS 50.085(3), we carve out an exception for sexual assault cases. Id., 779 P.2d at 90.
Thus, in a sexual assault case, defense counsel may ask the complaining witness about prior
false sexual assault charges, and if the witness denies this behavior, defense counsel may
introduce extrinsic evidence of the false charges.
[Headnote 4]
Under Miller, before extrinsic evidence of the complaining witness's false accusations can
be admitted, a threshold inquiry must establish both the fact of the accusations and the
falsity thereof, even before the defense counsel launches into cross-examination. Id. at 502,
779 P.2d at 90. Thus, if the defendant wishes to cross-examine the complaining witness about
prior false sexual abuse or sexual assault accusations and to introduce extrinsic evidence of
these false accusations, the defendant must first file a notice of intent to do so. The trial court
is then required to hold a hearing (outside the jury's presence) to determine whether the
cross-examination is warranted and whether the extrinsic evidence is admissible. Specifically,
the defendant must show, by a preponderance of the evidence, that: {1) the accusations
were made; {2) the accusations were false; and {3) the extrinsic evidence is more
probative than prejudicial.
show, by a preponderance of the evidence, that: (1) the accusations were made; (2) the
accusations were false; and (3) the extrinsic evidence is more probative than prejudicial. Id.
[Headnote 5]
In the present case, the district court erred when it determined that Efrain's notice of intent
to introduce extrinsic evidence was untimely. In fact, Miller does not discuss any timeliness
requirements and suggests that the evidentiary hearing may take place during trial. (Miller
requires the evidentiary hearing to take place outside the presence of the jury.)
[Headnote 6]
In addition, Miller does not require the defendant to describe the specific prior accusations
in the notice of intent to introduce extrinsic evidence. Miller simply provides an exception to
the collateral evidence rule and allows the defendant to impeach the complaining witness's
testimony. To impeach the complaining witness's testimony, the defendant must, in a separate
hearing, establish the complaining witness's prior false accusations and that the evidence is
more probative than prejudicial. Miller thus ensures that collateral evidence demonstrating
that the witness has lodged prior false allegations is reliable. In addition, under Miller,
extrinsic evidence of false accusations can only be presented if the witness denies or fails to
recall having made such accusations. Id.
In the present case, Efrain filed a proper notice of intent to introduce extrinsic evidence in
a timely manner, and the district court should have ordered a Miller evidentiary hearing.
Accordingly, we reverse the district court order and remand this matter to the district court so
that a Miller hearing may be held. During the hearing, Efrain must show, by a preponderance
of the evidence that, before lodging a complaint against him, the complaining witness made
prior false accusations of sexual assault. In addition, Efrain must demonstrate that the
extrinsic evidence is more probative than prejudicial.
If Efrain meets his burden of proof, he should then be allowed to question the complaining
witness about the prior false accusations. If she denies or does not remember the prior
accusations, Efrain should be permitted to introduce extrinsic evidence of the prior
accusations and to cast doubt upon the complaining witness's credibility. If the district court
determines that the complaining witness's credibility has been decreased because of prior
false accusations, it should carefully reconsider her testimony in light of this fact. Of course,
if Efrain fails to meet his burden of proof in the evidentiary hearing, the district court order
finding him to be a delinquent child should be reinstated.
____________
107 Nev. 951, 951 (1991) Silver Lake Water v. Public Serv. Comm'n
SILVER LAKE WATER DISTRIBUTION COMPANY, Appellant, v. THE PUBLIC
SERVICE COMMISSION OF NEVADA, Respondent.
No. 21781
December 20, 1991 823 P.2d 266
Appeal from an order of the district court denying a petition for review of a decision by the
Public Service Commission of Nevada. First Judicial District Court, Carson City; Michael R.
Griffin, Judge.
Water utility sought review of decision by Public Service Commission. The district court
upheld decision to use original cost method of valuation, and appeal was taken. The supreme
court held that, because city failed to provide any proof of cost of developing water rights, but
instead submitted only an unsupported letter estimating value at $1,000 per acre foot, Public
Service Commission was justified in finding that original cost and valuation would be based
only on application filed with state engineer.
Affirmed.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for Appellant.
Leslie T. Miller, General Counsel, Carson City, for Respondent.
Decisions of Public Service Commission will be upheld by courts if there is substantial evidence in record to support finding;
decisions of Commission will not be interfered with except if necessary to keep decisions within framework of law. NRS 703.373,
703.373, subd. 6.
For purposes of determining value of water rights, Public Service Commission had substantial evidence to find that water rights
were dedicated to public use as of date on which city deeded property to original owner and not on date on which utility served its first
customer. NRS 703.373, 703.373, subd. 6.
Public Service Commission has broad discretion to ascertain value of public utility assets and is not required to use any particular
kind of evaluation method. NRS 704.440.
Although terms original cost and value with regard to water rights may be synonymous if utility's cost is what it actually paid
for asset in arm's length transaction, original cost and value are not synonymous where water rights are under property owner's control
from beginning.
Value of water rights for public water utility could not be based on unsupported appraisal of value per acre foot
which was placed in utility's books absent adequate documentation as to actual investment in developing
rights.
unsupported appraisal of value per acre foot which was placed in utility's books absent adequate documentation as to actual investment
in developing rights.
Because Public Service Commission was given no means by which to determine costs of utility's water rights other than an
unsupported estimate of value per acre foot, the $75 cost of three applications would be the cost of developing the rights; the utility did
not provide any proof of costs of drilling wells, engaging engineers, or legal expenses, which could have been included in original cost
valuation.
OPINION
Per Curiam:
THE FACTS
Mr. William Lear (Mr. Lear) and the City of Reno (the City) began discussions
regarding the future development of the Reno-Stead area in 1966. The City deeded the first
piece of property to Mr. Lear in 1968. The Reno-Stead Development Company
(Reno-Stead) was established by Mr. Lear to manage the engineering and master planning
of the Reno-Stead property.
Pursuant to its agreement with the City, Reno-Stead began developing the water rights
associated with the land. Reno-Stead filed three applications with the State Engineer on
December 2, 1968. Sometime during 1971-1972, Reno-Stead was transformed into the
Leareno Development Company (Leareno), although the Reno-Stead name was later used
by Mr. Lear. On June 26, 1974, Mr. Lear, under the name of Reno-Stead, entered into an
agreement with Robert L. Helms Construction and Development Company (Helms) to
assign temporarily its water rights, which Helms utilized to construct a public highway.
Leareno's primary objective of this temporary assignment was to demonstrate some proof of
beneficial use to pave the way for Mr. Lear's perfection of the water rights.
1
The water rights
were eventually perfected and certificates issued by the State Engineer on August 15, 1975.
Silver Lake Water Distribution (Silver Lake) was incorporated by Mr. Lear on March 1,
1978. Mr. Lear died on May 14, 197S.
__________

1
The Commission summarized the steps necessary for perfecting water rights in Nevada as follows:
Simply stated, the filing of an application for water rights with the State Engineer is the first step . . . . If
the application is approved, a permit is issued to the applicant. A permit to appropriate water grants the
right to develop a certain amount of water for a particular purpose. In order to perfect the water right, an
applicant must file proof of beneficial use with the State Engineer. Once proof has been filed, the State
Engineer will issue a certificate in place of the permit.
1978. Silver Lake provided water to its first customer in June of 1978 and became a public
utility subject to the regulatory authority of the Public Service Commission of Nevada (the
Commission) in January, 1980. Silver Lake did not have formal ownership of the water
rights until February of 1980, when Leareno transferred the rights to it by quitclaim deed. In
August of 1980, Silver Lake recorded the figure of $732,000.00 in its financial records to
represent the value of its water rights.
The Commission conducted an investigation into the rates charged by Silver Lake in 1986,
after which it ordered Silver Lake to appear and provide justification for its rates and
practices. Hearings before the Commission began in April 14, 1987. The Commission
subsequently determined that Silver Lake had an inflated rate base.
2
The Commission's
conclusion rested on the appropriate valuation of Silver Lake's water rights. Silver Lake
claimed that its water rights were worth $1,000.00 per acre foot for a total of $732,000.00 No
reliable documentation was ever produced by Silver Lake in support of its claim, although
Silver Lake was given a two month continuance for that purpose. Consequently, based on the
original cost method of valuation, the Commission found that only $75.00 could be
included in Silver Lake's rate base as the cost of developing its water rights. This conclusion
rested on the Commission's determination that the only credible evidence of Silver Lake's
costs were the three applications filed in 1968 at $25.00 each.
The district court upheld the Commission's decision to use the original cost method of
valuation and determined that the Commission acted appropriately. We agree.
DISCUSSION
[Headnote 1]
The standard of judicial review for orders issued by the Commission is set forth in NRS
703.373(6).
3
Nevada courts have traditionally upheld decisions by the Commission "if
there is substantial evidence in the record to support its findings."
__________

2
The Commission explained the importance of the rate base for a utility as follows:
By placing an item into the rate base, a public utility is given the opportunity to earn a return on their
investment. The investment by the utility is the amount of money spent by the company to acquire the
item. The utility company is compensated for those expenses through the rates charged for utility service.
Since it is the consumer who is ultimately liable for the value of the item placed into rate base, an
accurate value for the item must be determined.

3
703.373 Judicial review: Petition; answer; scope of review; grounds for setting aside decision of
commission.
. . .
6. The court shall not substitute its judgment for that of the commission as to the weight of the
evidence on questions of fact. The
traditionally upheld decisions by the Commission if there is substantial evidence in the
record to support its findings. PSC v. Continental Tel. Co., 94 Nev. 345, 348, 580 P.2d 467,
468-469 (1978). We will not interfere with decisions by the Commission except when
necessary to keep them within the framework of the law. Nevada Power v. Public Service
Commission, 105 Nev. 543, 545, 779 P.2d 531, 532 (1989).
1. Date of Dedication.
[Headnote 2]
Silver Lake insists that Mr. Lear's intent to dedicate the water rights to public use was not
clear until 1978, when Silver Lake served its first customer. Therefore, Silver Lake argues
that its water rights should be valued according to its cost of reproduction or replacement as
of 1978. Conversely, the Commission maintains that Mr. Lear's intent to dedicate to public
use was clear in 1968, based on testimony and evidence demonstrating that a master plan had
been developed for the Silver Lake area in 1968.
The applications filed with the State Engineer in 1968 stated that Mr. Lear's intended use
of the water was quasi-municipal. No evidence indicates that the water rights were ever
intended for anything other that public use from the outset. We hold that the Commission had
substantial evidence to find that the water rights were dedicated to public use in 1968. In so
doing, however, we do not mean to infer that a utility is precluded from including verifiable
expenditures after the date of filing applications. Here, however, Silver Lake failed to submit
any costs beyond 1968. Consequently, the date of dedication is irrelevant for all practical
purposes under these unusual circumstances.
2. Original Cost Valuation.
[Headnote 3]
The Commission has broad discretion in ascertaining the value of public utility assets and
is not required to use any particular kind of valuation method.
__________
court may affirm the decision of the commission or set it aside in whole or in part if substantial rights of
the appellant have been prejudiced because the administrative findings, inferences, conclusions or
decisions are:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the commission;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
or
(f) Arbitrary or capricious or characterized by abuse of discretion.
kind of valuation method. See NRS 704.440.
4
The Commission's use of an original cost
method of valuation received approval from this court in Public Serv. Comm'n v. Ely L. & P.,
80 Nev. 312, 321-22, 393 P.2d 305, 309-310 (1964). Silver Lake contends that Ely L. & P.
stands for the proposition that the Commission could utilize reproduction costs
(replacement cost) as a means of valuating assets in the rate base. Certainly, the Commission
has the discretion to do so. However, in Ely L. & P., we overruled the trial court's attempt to
force the Commission to utilize a reproduction cost method. Ely L. & P., 80 Nev. at 322, 393
P.2d at 310. Therefore, any decision by this court directing the Commission to use one
acceptable method of valuation over another would amount to the substitution of our
judgment over the Commission's in violation of NRS 703.373(6).
Original cost represents a utility's investment in developing an asset, such as water
rights. The burden of proving the costs associated with the investment falls on the shoulders
of the utility, because the costs necessitate an increase in customer rates.
5
Original cost
and value may be synonymous under circumstances where a utility's costs is what it
actually paid for the asset in an arm's-length transaction. For example, had Silver Lake
purchased the water rights through an arm's-length transaction for $732,000.00, then its
original cost would be $732,000.00. Here, however, the water rights were under Mr. Lear's
control from the beginning.
[Headnote 4]
The record reveals that as of May, 1980, Silver Lake had inadequate documentation as to
Mr. Lear's actual investment into developing the water rights. Consequently, Silver Lake
accepted an unsupported appraisal, in the form of a letter, dated July 30, 1980, sent by
attorney Ross E. deLipkau, estimating a value of $1,000.00 an acre foot for the rights. This
figure was placed on the books of Silver Lake in August of 1980. In 1985, the Lear estate
began negotiations with the IRS to determine the estate's value for tax purposes, relying
on the $732,000.00 figure as the value for the Silver Lake water rights.
__________

4
704.440 Investigation and ascertainment of value of property of public utility.
1. The commission may, in its discretion, investigate and ascertain the value of all property of every
public utility actually used and useful for the convenience of the public.
2. In making such investigation the commission may avail itself of all information contained in the
assessment rolls of the various counties and the public records and files of all state departments, offices
and commissions, and any other information obtainable.

5
The United States Supreme Court endorses a reasonableness test, which allows for valuation based on
historical or actual legitimate costs. Duquesne Light Co. v. Barasch, 488 U.S. 299, 310 (1989); Bell Tel. Co. v.
Pub. Ser. Comm., 70 Nev. 25, 30-31, 253 P.2d 602, 604 (1953); Federal Power Comm'n v. Hope Natural Gas
Co., 320 U.S. 591, 602 (1944).
estate began negotiations with the IRS to determine the estate's value for tax purposes, relying
on the $732,000.00 figure as the value for the Silver Lake water rights. The record reflects
that the Internal Revenue Service stipulated to Silver Lake's stated value for the water rights
solely in an effort to establish a bottom line figure for the Lear estate and did not perform a
separate valuation. When Silver Lake appeared before the Commission, its own expert
admitted that the $732,000.00 figure was an estimate, founded on Mr. deLipkau's letter and
the Internal Revenue Service stipulation with the Lear estate. We agree with the
Commission's conclusion that: A chain is only as strong as its weakest link. The chain'
developed by Silver Lake to establish a value of $1,000.00 an acre foot must break because
the initial link is flawed. Clearly, accepting Silver Lake's figure of $732,000.00 based
entirely on Mr. deLipkau's letter would open the door to abuse.
[Headnote 5]
The Commission is obligated to make its determinations based on actual data; it may not
rely on mere assumptions. Public Serv. Comm'n v. Ely L. & P., 80 Nev. 312, 329, 393 P.2d
305, 314 (1964). In the applications to the State Engineer, Mr. Lear estimated that the costs of
developing the water rights would exceed $50,000.00 We do not doubt that Mr. Lear invested
more than $75.00 to develop the Silver Lake water rights. Costs of drilling wells, engaging
engineers, legal expenses, etc., are all expenditures which may be included in an original
cost valuation. However, those costs must be proven.
[Headnote 6]
The Commission was given no means by which to determine the costs of Silver Lake's
water rights at anything other than $732.000.00. In essence, Silver Lake has gambled on its
$732,000,00 figure, wagering that this court would find the $75.00 award unconscionable and
send this case back to the Commission. However, by remanding this case, we would be
endorsing a gambling mentality whereif the gamble failsa utility company could then
return to the Commission and provide responsible evidence. This we will not do. Silver Lake
has had sufficient opportunity to demonstrate its costs in developing the water rights. Silver
Lake's all or nothing proposition has left the Commission, the district court and this court
will no choice but to conclude that the original cost of its water rights is $75.00.
The result of the Commission's decision was to make a downward adjustment of
$731,925.00 in Silver Lake's capital structure. Silver Lake will still receive a 14.337 percent
rate of return on its revised capital structure. Consequently, we conclude that Silver Lake is
receiving a reasonable return.
Silver Lake is receiving a reasonable return. See Bell Tel. Co. v. Pub. Ser. Comm., 70 Nev.
25, 30-31, 253 P.2d 602, 604 (1953).
Accordingly, we conclude that there was no error below and affirm the decision of the
district court to uphold the Commission's opinion.
____________
107 Nev. 957, 957 (1991) Beets v. State
EDWARD LEE BEETS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20694
December 20, 1991 821 P.2d 1044
Appeal from convictions pursuant to jury verdict of first degree murder with use of a
deadly weapon, attempted murder with use of a deadly weapon, mayhem with use of a deadly
weapon, first degree kidnaping with use of a deadly weapon, sexual assault with use of a
deadly weapon, two counts of sexual assault with a minor, burglary, and a sentence of death
pronounced by a three-judge panel. Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge; Third Judicial District Court, Lyon County; Archie E. Blake, Judge; First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
Defendant was convicted, in the district court of first degree murder, attempted murder,
mayhem, first degree kidnapping, sexual assault, two counts of sexual assault with minor, and
burglary. Sentence of death was subsequently pronounced by panel consisting of J. Charles
Thompson, Archie, E. Blake, and Michael E. Fondi, Judges. Defendant appealed. The
supreme court, Mowbray, C. J., held that: (1) evidence was sufficient to support first degree
murder, first degree kidnapping, and mayhem convictions; (2) trial court's instruction to jury
on aggravating death penalty circumstance that murder was committed by person under
sentence of imprisonment for robbery was harmless beyond reasonable doubt, even though
defendant was under sentence of imprisonment for burglary; (3) aggravating death penalty
circumstance that murder was committed while person was engaged in commission of or
attempt to commit any sexual assault was supported by evidence, even though sexual assault
was committed upon murder victim's daughter; and (4) infirm aggravating death penalty
circumstance based on depravity of mind was harmless beyond reasonable doubt.
Affirmed.
[Rehearing denied March 3, 1992]
107 Nev. 957, 958 (1991) Beets v. State
Daniel M. Seaton, Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
Evidence in first degree murder trial was sufficient to allow jury to conclude beyond reasonable doubt that defendant killed victim
with premeditation, where, after defendant began to chase assault victim, homicide victim yelled, opened her bedroom door, told
defendant to stop and get out, and walked toward defendant, and defendant then hit homicide victim with hammer.
2. Criminal Law.
Defendant's acts of binding victim's hands and feet was sufficient to establish first degree kidnapping charge, where such acts
increased risk of harm to victim and had independent significance with regard to defendant's ability to commit sexual assault. NRS
200.310.
3. Mayhem.
Evidence was sufficient for jury to find that victim's injuries were permanent, and thus to support mayhem conviction, where
victim testified that she had nerve damage and had not regained full ability to lift her wrist at time of trial. NRS 200.280.
Jury instruction on reasonable doubt was not violation of defendant's due process rights; instruction stated, inter alia, that
reasonable doubt is one based on reason, is not mere possible doubt, and has to be actual and substantial. U.S.C.A.Const. amend. 5, 14.
5. Homicide.
Trial court's giving of aggravating death penalty circumstances instruction to jury, which asked whether murder was committed by
person under sentence of imprisonment for robbery, was harmless beyond reasonable doubt, even though defendant was under sentence
of imprisonment for burglary; three other aggravating circumstances were present, there were no mitigating circumstances, and
defendant's crimes were brutal and heinous.
6. Homicide.
Aggravating death penalty circumstance, that murder was committed while person was engaged in crime of or attempt to commit
any sexual assault, does not require that sexual assault be perpetrated against homicide victim. NRS 200.033, subd. 4.
7. Homicide.
Trial court properly gave jury instruction on aggravating death penalty circumstance that murder was committed while defendant
was engaged in commission of or attempt to commit any sexual assault, even though homicide victim was not sexually assaulted, but
rather homicide occurred in commission of sexual assault against homicide victim's daughter. NRS 200.033, subd. 4.
8. Homicide.
Aggravating death penalty circumstance based on depravity of mind was inapplicable, where there was no factual predicate for
finding of torture, mutilation or depraved physical abuse beyond the killing of victim by blow with hammer. NRS 200.033, subd. 8.
107 Nev. 957, 959 (1991) Beets v. State
9. Homicide.
Infirm aggravating death penalty circumstance based on depravity of mind was harmless beyond reasonable doubt, where there
were no mitigating circumstances, and two other aggravating circumstances, that murder was committed in basic conjunction with
brutal sexual assault and that defendant was under sentence of imprisonment for burglary, were applicable. NRS 200.033, subd. 8.
10. Homicide.
Death sentence was not excessive, where defendant had killed elderly victim by striking her with hammer, murder was committed
in basic conjunction with brutal sexual assault on victim's daughter, and defendant was under sentence of imprisonment for burglary at
time of murder.
OPINION
By the Court, Mowbray, C. J.:
Appellant Edward Beets was Vanita Hames' boyfriend for approximately four months.
Sometime after Christmas 1988, Vanita broke off her relationship with appellant. Vanita
lived in North Las Vegas with her mother, Oretha Hames, aged 71, her daughter, Nicole, aged
7, and her son, Christian, aged 1 1/2.
At approximately 3:00 or 4:00 a.m. on March 10, 1989, Vanita awoke to find appellant
standing over her. Vanita asked appellant what he was doing there and, when he did not reply,
she ran out of her room to the kitchen to use the telephone. The telephone did not work as the
telephone lines leading into the home had been cut.
Vanita then saw appellant walk toward her, enter her bedroom, and re-emerge with a
pillowcase which had been in the linen closet. Appellant withdrew a hammer from the
pillowcase, which Vanita recognized as one she kept in a kitchen drawer with other tools.
Appellant chased Vanita through the living room, caught her and hit her on her back two or
three times with the hammer. Vanita heard her mother, Oretha, yell, What's going on in
there. Oretha then opened her bedroom door, saw appellant, and told him to stop and get out.
When Oretha walked toward appellant, he hit her with the hammer once on the top part of her
body and she fell.
Vanita crawled around the furniture in an attempt to get away from appellant, but he
caught up with her in the hallway and dragged her into the bathroom. Vanita was crying and
screaming and appellant told her to be quiet before she woke up the children. Vanita could
hear her mother moaning and having difficulty breathing. Inside the bathroom, appellant
again hit Vanita with the hammer, including a blow to the back and a blow which broke her
arm. Appellant then tied Vanita's hands and feet with a torn sheet and then left, closing the
door.
107 Nev. 957, 960 (1991) Beets v. State
sheet and then left, closing the door. Vanita was unable to get loose from the bindings.
About ten minutes later, appellant returned to the bathroom with a sofa cushion which he
placed under Vanita's broken arm. Appellant then untied her, opened his fly, and took off her
underpants. Appellant knelt between Vanita's legs and waved the hammer around as if he was
going to hit her between her legs. He then turned the end of the hammer around and stuck the
handle up her vagina.
Appellant left the bathroom with the door open and returned about a minute later with a
kitchen knife. Appellant told Vanita he was going to kill her and then himself. Appellant
knelt in front of her and, with both hands on the knife, stabbed her near her left breast.
Appellant threw the knife down, turned off the bathroom light, and left, closing the door.
About ten minutes later, Vanita heard appellant walk toward the children's room. Vanita
felt around for the knife, left the bathroom, and lunged at appellant with the knife. Appellant
knocked the knife out of her hand and hit her across the face with his fist. He again dragged
Vanita to the bathroom, pushed her down and, with the hammer, hit her on the knees and on
the side of her head. Appellant closed the bathroom door and left. After a few minutes, Vanita
heard her daughter crying and heard her say, No, no.
Vanita got up and went to her daughter's room and found Nicole lying on the bed with her
ankles tied. Vanita went into the kitchen to get a knife to cut the bindings. Vanita gave the
knife to Nicole, who cut the bindings, and told Nicole to go to a neighbor's house for help.
Vanita then went into the living room where she found her mother lying face down on the
floor. She turned her over and knew she was dead.
1

Nicole testified regarding appellant's acts in her bedroom. Appellant entered Nicole's
bedroom with no clothes on. He climbed into bed with Nicole and removed her underwear.
Appellant then laid on top of Nicole and stuck his finger and penis in her vagina. Appellant
left the room and returned a few seconds later and tied her arms and legs. Appellant then left
again.
As a result of her injuries, Vanita still could not lift her wrist at trial on August 1, 1989,
due to nerve damage. Vanita testified she did not know if she would be able to use her wrist
again.
Appellant was charged with the following: burglary; first degree murder with use of a
deadly weapon, victim 65 years of age or order; attempted murder with use of a deadly
weapon; mayhem with use of a deadly weapon; first degree kidnaping with use of a
deadly weapon; sexual assault with use of a deadly weapon; and two counts of sexual
assault with a minor.
__________

1
Clark County Medical Examiner Dr. Nina Hollander performed the autopsy on Oretha and labeled the
cause of death as multiple blunt trauma and stab wounds of the head and neck.
107 Nev. 957, 961 (1991) Beets v. State
mayhem with use of a deadly weapon; first degree kidnaping with use of a deadly weapon;
sexual assault with use of a deadly weapon; and two counts of sexual assault with a minor.
At the close of the State's case at trial, appellant moved to dismiss the kidnapping and
mayhem charges. The district court denied the motion as to both charges. The jury found
appellant guilty on all counts. At the penalty hearing, the State introduced two judgments of
conviction, one for robbery in April 1980, and one for burglary in April, 1985. The defense
called witnesses who testified that appellant suffered several serious head wounds as a child
and testified regarding appellant's good character.
The jury was deadlocked and unable to reach a verdict after the penalty phase. In an order
filed August 15, 1989, we ordered a three-judge panel to conduct a penalty hearing pursuant
to NRS 175.556.
2
At the second penalty hearing, the judges indicated that they had reviewed
the transcripts of the previous proceedings, both the guilt and penalty phases.
The three-judge panel found no mitigating circumstances and the following four
aggravating circumstances: (1) the murder was committed by the defendant while under a
sentence of imprisonment, to wit: Burglary; (2) the murder was committed by the defendant
who was previously convicted of a felony involving the use or threat of violence to another,
to wit: Robbery; (3) the murder was committed while the defendant was engaged in the
commission of sexual assault; and (4) the murder was committed while the defendant was
engaged in the commission of burglary. On November 7, 1989, appellant was sentenced to
death.
On appeal, appellant contends: (1) insufficient evidence of premeditation was presented to
support the conviction of first degree murder; (2) the district court erred in denying his
motion to dismiss the kidnaping charge; (3) insufficient evidence was presented to support
the mayhem conviction; (4) the reasonable doubt instruction was unconstitutional; and (5)
three of the aggravating circumstances provided to the jury were improper and constituted
prejudicial error. For the reasons stated below, we conclude that all of appellant's contentions
lack merit.
[Headnote 1]
Appellant first contends that the evidence adduced at trial was insufficient to support the
first degree murder conviction because there was insufficient evidence as to the required
element of premeditation.
__________

2
NRS 175.556 states in pertinent part:
If a jury is unable to reach a unanimous verdict upon the sentence to be imposed, the supreme court shall
appoint two district judges from judicial districts other than the district in which the plea is made, who
shall with the district judge who conducted the trial, or his successor in office, conduct the required
penalty hearing to determine the presence of aggravating and mitigating circumstances, and give sentence
accordingly.
107 Nev. 957, 962 (1991) Beets v. State
insufficient to support the first degree murder conviction because there was insufficient
evidence as to the required element of premeditation. See Hern v. State, 97 Nev. 529, 532,
635 P.2d 278, 280 (1981). See also NRS 200.030(1)(a). We have previously stated that the
time lapse between the premeditation and deliberation and the act of killing need only be an
instant. Scott v. State, 92 Nev. 552, 555, 554 P.2d 735, 737 (1976). We conclude that a jury,
acting reasonably, could have been convinced beyond a reasonable doubt that appellant killed
Oretha with premeditation. Wilkens v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980).
[Headnote 2]
Appellant next contends the district court erred when it denied his motion to dismiss the
first degree kidnaping charge. Appellant argues that he was charged with kidnaping Vanita
for the purposes of committing sexual assault, pursuant to NRS 200.310, and contends that
the movement or asportation of Vanita was incidental to the physical attack against her.
In Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988), overruled on other grounds
Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990), we concluded that the physical
restraint of the victim is sufficient to establish kidnaping as an additional offense. Moreover,
we further stated: [t]he kidnapping was not incidental to the extortion because the restraint
increased the risk of harm. Finally, the restraint had an independent purpose and significance
as it was essential to the accomplishments of mayhem. Id. at 354, 760 P.2d at 105. We thus
conclude that the act of binding Vanita's hands and feet was sufficient evidence to establish
the kidnaping charge since these acts increased the risk of harm to Vanita and had
independent significance with regard to appellant's ability to commit the sexual assault.
[Headnote 3]
Appellant next contends there was insufficient evidence adduced at trial to support the
mayhem conviction because there was no evidence presented that Vanita's arm injury was
permanent. NRS 200.280 states in pertinent part that [m]ayhem consists of unlawfully
depriving a human being of a member of his body, or disfiguring or rendering it useless. If
any person cuts out or disables the tongue . . . or disables any limb or member of another . . .
that person is guilty of mayhem . . . .
Appellant argues the only evidence presented regarding the injury was Vanita's testimony
that she had nerve damage and had not regained full ability to lift her wrist at the time of trial.
We have previously stated: Whether the victim is disfigured, and whether the disfigurement
is permanent, are questions of fact for the jury. Lomas v. State, 98 Nev. 27, 29, 639 P.2d
551, 552 {19S2).
107 Nev. 957, 963 (1991) Beets v. State
(1982). We conclude that the jury had sufficient evidence to find that Vanita's injuries were
permanent. See Wilkens, 96 Nev. at 374, 609 P.2d at 313 (1980).
[Headnote 4]
Appellant next contends that Jury Instruction No. 32, which instructed the jury on
reasonable doubt, is unconstitutional.
3
We recently upheld the identical instruction in Lord
v. State, 107 Nev. 28, 806 P.2d 548 (1991). We decline appellant's invitation to re-examine
our holding in Lord.
Finally, appellant challenges the instructions regarding three aggravating circumstances
that were given to the jury during the first penalty hearing. We conclude that there was no
prejudicial error.
[Headnote 5]
Jury Instruction No. 46 contained the aggravating circumstances alleged by the State.
Alleged aggravating circumstance No. 1 stated that the murder was committed by a person
under sentence of imprisonment, to wit: Robbery. In support of this allegation, the State
offered two judgments of conviction during the penalty phase: an April 1980 robbery
conviction and an April 1985 burglary conviction.
At the second penalty hearing before the three-judge panel, the State again offered the
aggravating circumstance. At that time, the court pointed out that a pre-sentence report,
previously admitted during that proceeding, indicated the robbery conviction had expired on
July 18, 1987. Upon motion of the State, the court then amended the instructions to read to
wit: Burglary.
Appellant contends that, since he was not under a sentence of imprisonment for robbery
when he committed the murder, the court erred in giving Jury Instruction No. 46. We
conclude that the error was harmless beyond a reasonable doubt. See Chapman v. California,
386 U.S. 18 (1966). Appellant was under a sentence of imprisonment for burglary.
__________

3
Jury Instruction No. 32 states:
The defendant is presumed to be innocent until the contrary is proved. This presumption places upon
the State the burden of proving beyond a reasonable doubt every material element of the crime charged
and that the defendant is the person who committed the offense.
A reasonable doubt is one based on reason. It is not mere possible doubt but is such a doubt as would
govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire
comparison and consideration of all the evidence, are in such a condition that they can say they feel an
abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must
be actual and substantial, not mere possibility or speculation.
If you have a reasonable doubt as to the guilt of the defendant, he is entitled to a verdict of not guilty.
107 Nev. 957, 964 (1991) Beets v. State
tence of imprisonment for burglary. Three other aggravating circumstances were present.
There were no mitigating circumstances. Appellant's crimes were brutal and heinous.
Considering all of these circumstances, we cannot believe that the jury might have returned
an acquittal but for the instructional error.
[Headnotes 6, 7]
Aggravating Circumstance No. 3 in Jury Instruction No. 46 stated that [t]he murder was
committed while the person was engaged in the commission of or an attempt to commit any
sexual assault. Appellant contends that the aggravating circumstance is unsupported by the
evidence because, although appellant did commit a sexual assault, he did not kill the sexual
assault victim. We conclude that NRS 200.033(4) does not require the sexual assault to be
perpetrated against the homicide victim.
NRS 200.033(4) authorizes an aggravating circumstance for murder committed in the
commission of the following crimes: robbery, sexual assault, arson in the first degree,
burglary, invasion of the home or kidnaping in the first degree. See id. Nothing in the statute
implies that the victim of the robbery, kidnaping, or sexual assault must be the homicide
victim. Rather, the statute is intended to punish defendants who commit a murder while in the
commission of certain inherently dangerous felonies.
In the present case, appellant murdered Oretha Hames in the commission of a sexual
assault against Vanita. Since NRS 200.033(4) is not limited to cases involving sexual assaults
perpetrated against the homicide victim, the instruction regarding Aggravating Circumstance
No. 3 was proper.
[Headnote 8]
Appellant lastly contests the validity of the aggravating circumstance based upon depravity
of mind.
4
Appellant's contention has merit.
This court recently addressed the constitutionality of an aggravating circumstance based
upon depravity of mind. See Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990), cert.
denied,
------
U.S.
------
(1991). In Robins, we construed NRS 200.033(8) as requiring
[t]orture, 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." Id. at 629, 79S P.2d 570.
__________

4
NRS 200.033(8) states that an aggravating circumstance may be found where [t]he murder involved
torture, depravity of mind or the mutilation of the victim. Jury Instruction No. 47 states:
The condition 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.
107 Nev. 957, 965 (1991) Beets v. State
to an aggravating circumstance based in part upon depravity of mind. Id. at 629, 798 P.2d
570. Accord Jimenez v. State, 106 Nev. 769, 801 P.2d 1366 (1990). Since no factual
predicate for a finding of torture, mutilation or depraved physical abuse existed beyond the
killing of the victim by a blow with a hammer, we are forced to conclude that the aggravating
circumstance based upon depravity of mind must fail.
[Headnote 9]
Despite our rejection of the aggravating circumstance based upon depravity of mind, we
are convinced that the sentence of death should stand because of the weight properly accorded
to the remaining, valid aggravating circumstances. The murder was committed in basic
conjunction with a brutal sexual assault. Also, at the time of the murder, appellant was under
sentence of imprisonment for burglary. Considering these circumstances, and the lack of any
mitigating circumstances whatsoever, we conclude that the infirm aggravating circumstance
based upon depravity of mind is harmless beyond a reasonable doubt.
[Headnote 10]
Appellant's remaining contentions are meritless.
5
We therefore affirm appellant's
conviction and sentence of death.
Springer, J., concurring:
I concur in the majority's result in affirming the conviction in this case. With regard to the
penalty hearing, I again concur with the majority's result, but for different reasons from those
stated in the majority opinion.
The sentencing panel concluded that there were no mitigating circumstances and that there
were four aggravating circumstances. I do not think that any of the claimed errors relating to
jury instructions given at the penalty hearing have any bearing on this appeal, as any error in
sentencing by the jury is superseded by the proceedings before the three-judge panel. I do not
subscribe to any claim by Beets to the effect that if there had not been error at the jury penalty
hearing, it would not be necessary for the three-judge panel to have heard the matter at all.
The three-judge panel did hear and decide the penalty matter; therefore, I discuss only error
that might have infected the three-judge hearing. I conclude that there was no error.
Of the four aggravating circumstances found by the three-judge panel there is only one
that has any possible infirmity, and that is the charge that the murder was committed
while the murder convict was engaged in the commission of sexual assault.
__________

5
Pursuant to NRS 177.055, we have considered all errors enumerated by way of appeal. We also determine
that the evidence was sufficient to establish the existence of aggravating circumstances and holds that appellant's
sentence was not imposed under the influence of passion, prejudice, or any arbitrary factor. Additionally, we
conclude that appellant's sentence of death is not excessive, considering both the crime and the defendant.
107 Nev. 957, 966 (1991) Beets v. State
panel there is only one that has any possible infirmity, and that is the charge that the murder
was committed while the murder convict was engaged in the commission of sexual assault. I
agree with the majority that the statute does not require that the murder victim be the same
person that was being sexually assaulted. There is an argument in this case that the homicide
was so isolated from the sexual assault that it cannot be rationally maintained that the
homicide occurred while the person was engaged in the commission of . . . any sexual
assault. My reading of the record tells me that sexual assault and the homicide were
sufficiently connected so as to have justified the panel in concluding that the homicide was
committed during an episode closely associated with Beets' sexually assaultive activity. I
think that the panel was justified in concluding that the homicide was committed while
Beets was engaged in the commission of a sexual assault. For the reasons stated, I would
affirm the judgment of the trial court.
I concur with the majority in its reasoning and conclusions in affirming the results of the
guilt and penalty phases of this case. I am concurring to address the concern Justice Young
has expressed in his dissent regarding NRS 175.556.
The jury convicted Beets of first degree murder, but was unable to agree upon the
punishment to be assessed in the penalty phase, and the jury was declared deadlocked. At the
penalty phase, the jury was instructed that three circumstances could be found to be
aggravating to the first degree murder conviction. I agree with the majority's opinion that the
only aggravating circumstance that was improperly presented to the jury was the instruction
stating that depravity of mind could be an aggravating circumstance.
We have no idea why the jury deadlocked in this case and was unable unanimously to
assess a penalty against Beets. The jury may well have rejected the improperly given
aggravating circumstance of depravity of mind, or it may have deadlocked on that precise
issue. At most, the improperly given aggravating circumstance could have prejudiced the
defendant by contributing to an inconclusive result, thus requiring that the sentence be
imposed by a three-judge panel.
At the subsequent penalty hearing before the three-judge panel, the findings were made of
three aggravating circumstances. Only the aggravation for depravity of mind was improperly
found. Given the gruesome facts of this case and that we will affirm a death penalty
assessment even if one aggravating circumstance is properly found, see Ybarra v. State, 100
Nev. 167, 679 P.2d 797 {19S4), I have no problem in finding that a factual basis exists for
the assessment of the death penalty.
107 Nev. 957, 967 (1991) Beets v. State
(1984), I have no problem in finding that a factual basis exists for the assessment of the death
penalty.
The focus of our attention at a later time should be on NRS 175.556. This statute provides
that a three-judge panel shall sentence a defendant convicted of first degree murder when the
jury is unable to reach a unanimous verdict. As stated in his dissent, my colleague Justice
Young has a legitimate concern about the effect of this statute. If defendants are consistently
more likely to get the death penalty from a three-judge panel than a jury, then it may well be
that Nevada's sentencing procedure creates a substantial risk that the ultimate punishment will
be inflicted in an arbitrary or capricious manner. This result would be a violation of the
Nevada and United States Constitutions.
However, evidence on this issue was not presented by the parties in the proceedings below,
nor has this issue been raised on appeal. Before deciding such an important issue, we should
have an actual case and controversy from which to make a decision, along with the arguments
of the prosecution and the defense. While the statistics cited by Justice Young support his
conclusion, I would defer making this decision until the issue is formally presented to this
court.
For the reasons stated, I concur with the majority's opinion and would affirm the death
sentence assessed against Beets.
I concur in the majority opinion affirming Beets' convictions and penalty, but feel
compelled to address the non-issue raised by my colleague, Justice Young, in his dissent and
tangentially credited by my colleagues Justices Springer and Rose in their separate opinions.
Unfortunately, statistics invite numerous conclusions in almost any area where they are used,
and frequently the same statistics may be cited in support of diametrically opposite
conclusions. I suggest that the conclusions reached by the dissenting justice are unreliable and
simplistic. As a preface to my analysis of the dissent's conclusions, I will add to the chart
supplied by my colleague, the following information:
CASE NAME
1. PAINE. This matter is awaiting decision by this court. Factual basis for guilty plea and
imposition of death penalty involved shooting two taxicab drivers in the head without
provocation. The one driver survived, the other was killed.
2. JONES. Factual basis for guilty plea involved shooting and bludgeoning the victim in
the head in order to steal the victim's recreational vehicle. Sentencing panel heard eye-witness
testimony of the daughter of two victims who were murdered in Florida by Jones.
107 Nev. 957, 968 (1991) Beets v. State
3. REDMEN. This matter is awaiting decision by this court. Factual basis for conviction
involved allegations of the execution of the male victim by shooting the victim three times,
cutting off the victim's hands and disfiguring the victim's face with a piece of wrought iron.
4. BEETS. In this, the instant case, Beets bludgeoned and stabbed the one female victim
to death, and stabbed and bludgeoned the other female victim and inserted the end of a
hammer up her vagina. The latter victim survived.
5. KIRKSEY. Beat his victim to death. Evidence admitted concerning other violent
crimes, including a shotgun murder and the stabbing to death of his estranged girlfriend in
California. State presented a letter written by Kirksey stating that if he had the power to bring
life back to all his victims, he would do it so he could murder them again.
6. BAAL. Repaid his victim's kindness in giving him money by stabbing her repeatedly,
thus causing her death. Murder was committed in the course of a robbery and while Baal was
under a sentence of imprisonment.
7. FLANAGAN I & II. Flanagan strangled and beat his first victim to death and then
dismembered the victim's body, placing the head, arms, legs, and chopped torso in garbage
bags which he later deposited in dumpsters. He later met and strangled his second victim to
death, taking his wallet and clothes and disposing of the body in a remote area.
8. WILLIAMS. Broke into his victim's home while she was asleep. The young woman,
who was eight months pregnant, was first tortured by Williams and then brutally stabbed
thirty-eight times. The fetus also expired from a lack of oxygen resulting from its mother's
death.
9. MORAN I & II. Without warning or provocation, Moran shot two victims, a woman
and a man. Each victim was shot four times. Moran also shot and killed his former wife nine
days later. Moran was sentenced to death for all three killings, but we found the aggravating
circumstances infirm as to the former wife and ordered that sentence reduced to life without
10. HILL. Killed an elderly, paralyzed woman by repeatedly thrusting a long, wooden
stick into her rectum and vagina, perforating her vulva, perineal septum, sigmoid colon, and
kidney.
11. COLE. Murdered his female victim in Nevada by strangulation. Was also convicted
by jury verdicts in the State of Texas with the murder of three female victims, each by
strangulation.
12. WILSON. Stabbed to death an undercover narcotics officer; evidence indicated that
the victim pleaded for his life, but survived only approximately 20 minutes after being
stabbed nine times. The body was taken to a remote area and buried in a shallow grave.
107 Nev. 957, 969 (1991) Beets v. State
13. OLAUSEN. Participated with Wilson in the stabbing death of the undercover
narcotics officer. The dissent failed to note, however, that this court eventually granted
Olausen post-conviction relief for ineffective assistance of counsel, and upon resubmission to
another three-judge panel, Olausen was sentenced to life without the possibility of parole.
14. FARMER. Killed his victim by repeated stabbings in furtherance of burglary and
robbery.
15. MERCADO. Strangled an inmate to death with a rope. The three-judge panel
sentenced Mercado to life without the possibility of parole.
16. PRICE. Involved with Mercado in the strangling of an inmate. Was sentenced by the
three-judge panel to life with the possibility of parole.
17. BISHOP. Shot two people while robbing a cashier at a casino. The one victim died;
the other survived. At time of murder, Bishop was under a sentence of imprisonment for
armed robbery in California. He had also been previously convicted of a felony involving the
use or threatened use of violence to the person of another.
I have burdened this concurrence with abbreviated details of the homicides committed by
each of the defendants appearing in the statistical chart provided by the dissent because I do
not believe a purely statistical analysis without such detail can have any meaning. I also note
that this court specifically determined, in Baal v. State, 106 Nev. 69, 787 P.2d 391 (1990),
and Hill v. State, 102 Nev. 377, 724 P.2d 734 (1986), that Nevada's three-judge panel
sentencing procedure under NRS 175.556 and NRS 175.558 is constitutional. In my opinion,
our recent rulings in Baal and Hill were correct and constitute sound law.
In reviewing once again the nature of the crimes for which fifteen of the seventeen capital
defendants identified by the dissent were sentenced to death, I am unable to perceive any
basis for concluding that the fairness or objectivity of any of the three-judge panels is subject
to serious doubt. Indeed, excluding the two cases as yet undecided by this court, the judgment
of each of the sentencing panels has been reviewed by this court and affirmed.
Although we are keenly aware of the problems inherent in an elective system for selecting
judges, I find no basis under the statistical data supplied by the dissent for concluding that any
of the judges sitting on these cases betrayed their sworn duty to fairly and impartially apply
the law. If the dissent's position has merit, then it must be equally clear that we, as appellate
judges, have been equally lacking in the fair and impartial application of the law since we
have reviewed and affirmed the decisions of each of the panels imposing death on the subject
defendants. It appears to me that if we are to conclude that elected district court judges
sitting in panels of three are unfit to consider penalties in capital cases, then, as elected
appellate judges who have reviewed and scrutinized their deliberations and conclusions,
we must be equally unfit to perform our sworn duties of review.
107 Nev. 957, 970 (1991) Beets v. State
to me that if we are to conclude that elected district court judges sitting in panels of three are
unfit to consider penalties in capital cases, then, as elected appellate judges who have
reviewed and scrutinized their deliberations and conclusions, we must be equally unfit to
perform our sworn duties of review.
I suggest that the statistics cited by the dissent as evidence of bias on the part of
three-judge panels in favor of death prove nothing of the sort. One need only review the
details of each case resulting in the imposition of death to understand why both the
three-judge panels and the members of this court on review found that the ultimate penalty
was justified. Unless we have been mindlessly fulfilling our responsibilities, we have
determined, after careful review in each of these cases, that [n]othing contained in the record
indicates that the sentence of death was imposed under the influence of passion, prejudice, or
any arbitrary factor, and that the sentence of death is not excessive . . . considering both the
crime and the defendant. Hill, 102 Nev. at 380, 724 P.2d at 736. See NRS 177.055(2)(c) and
NRS 177.055(2)(d). In short, we have validated the judgment of each of these three-judge
panels, and I am unaware of any basis for impeaching the quality or bona fides of our review
in any of the cases. Accordingly, there is no basis whatsoever for concluding that capital
defendants have been subjected to biased treatment by any of the three-judge sentencing
panels.
Moreover, the statistical conclusions reached by the dissent are inaccurate. There were
actually 19 sentences (excluding the cases of Paine and Redmen which we have not yet
decided) imposed by three-judge panels involving the defendants listed in the chart contained
in the dissent. Moran was actually sentenced to death for each of the three killings, and this
court ordered the one death sentence reduced to a sentence of life without the possibility of
parole. Additionally, Olausen's capital sentence was vacated by this court after
post-conviction proceedings and remanded for a new sentencing which included death as an
option. The second three-judge panel sentenced Olausen to life without the possibility of
parole. Based upon my computations, defendants appearing before three-judge panels have
received sentences other than death in sixteen percent of the cases, not eleven percent as
found by my dissenting colleague.
Furthermore, I am unable to fathom, given the real-life details involved in the murders
involving these capital defendants, how anyone could objectively or empirically derive from
these statistics the conclusion that they represent dire statistical odds that call into question
the constitutionality of our sentencing procedures. Capital cases, which are comparatively few
in number in the first place, are simply not susceptible to meaningful statistical analysis in a
vacuum. Nor may a determination of the odds of a capital sentence be computed merely
by adding up the type of sentences meted out by our three-judge panels.1 Such panels
had to bring to bear the same careful analysis of the crime, aggravating and mitigating
factors, and background evidence concerning the defendants that we have had to
consider in reaching just determinations.
107 Nev. 957, 971 (1991) Beets v. State
a capital sentence be computed merely by adding up the type of sentences meted out by our
three-judge panels.
1
Such panels had to bring to bear the same careful analysis of the crime,
aggravating and mitigating factors, and background evidence concerning the defendants that
we have had to consider in reaching just determinations. None of these cases are of a garden
variety. I must conclude from the statistical fact that this court has validated the sentences of
all but one of eighteen (there was no basis for our reviewing the life sentence given Olausen
by the second panel) imposed by our three-judge panels, that they have been correct in at least
ninety-four percent of their deliberations. Moreover, in the one Moran death sentence we
ordered reduced, we did so on the basis of infirm aggravating circumstances rather than a
determination that death was unwarranted, a premise proved by our affirmation of Moran's
other two death sentences.
Significantly, the United States Supreme Court, in Spaziano v. Florida, 468 U.S. 447
(1984), affirmed a sentence of death imposed by the trial judge despite the jury's
recommendation that the defendant received a life sentence. Pertinent to the instant subject is
the following language from Spaziano:
The sentencer, whether a judge or jury, has a constitutional obligation to evaluate the
unique circumstances of the individual defendant and the sentencer's decision for life is
final. . . . More important, despite its unique aspects, a capital sentencing proceeding
involves the same fundamental issue involved in any other sentencing proceedinga
determination of the appropriate punishment to be imposed on an individual. . . . The
Sixth Amendment never has been thought to guarantee a right to a jury determination of
that issue.
__________

1
Unless the dissenting justice has in mind some type of sentencing body other than judges or juries, it seems
clear to me that in no case could the statistical analysis involving three-judge panels have any validity without
comparing them with the results of jury deliberations in cases where the state is seeking the death penalty. For
example, the case of Harvey v. State, 100 Nev. 340, 682 P.2d 1384 (1984), readily comes to mind where a jury
sentenced the sixteen-year-old defendant to death for a spur of the moment shooting that occurred as the young
man was fleeing from a robbery he had committed and suddenly encountered a security guard in the vehicle he
intended to use for escape. We concluded that the death penalty was excessive, vacated it and imposed a
sentence of life without the possibility of parole. Although I would personally view the comparison as irrelevant,
I suggest that without determining whether three-judge panels impose the death penalty significantly more
frequently than juries, the conclusions arrived at by the dissenting justice cannot even have colorable validity.
Moreover, such a comparison would have to include a determination of the ratio of death penalty affirmances by
this court on capital sentences imposed by both sentencing bodies.
107 Nev. 957, 972 (1991) Beets v. State
. . . .
In light of the facts that the Sixth Amendment does not require jury sentencing, that
the demands of fairness and reliability in capital cases do not require it, and that neither
the nature of, nor the purpose behind, the death penalty requires jury sentencing, we
cannot conclude that placing responsibility on the trial judge to impose the sentence in
a capital case is unconstitutional.
Id. at 459, 464.
By way of summary, neither the United States Constitution nor the Nevada Constitution
requires criminal defendants, including capital defendants, to be sentenced by a jury. Nor
does either constitution permit only non-elected judges to participate in the sentencing
process. Indeed, if it is constitutional for a single judge to override a jury recommendation of
life and thereafter impose a sentence of death, then, a fortiori, it is certainly constitutional for
three-judge panels who are not overriding jury recommendations, to impose capital sentences.
Moreover, I view Nevada's system as enlightened, because it attenuates any political
pressure on a single judge to impose the ultimate penalty.
2
Finally, the conclusion I reach
from the statistics presented by my dissenting colleague is that our three-judge panels are
responsibly approaching the difficult task which they occasionally are called upon to perform
in these very difficult, gut-wrenching cases. This court has officially agreed with the premise
by almost invariably placing its imprimatur on the decisions reached by these panels.
Finally, I also part company with my dissenting colleague concerning his conclusion that
NRS 200.033(4) requires the sexual assault victim to also be the murder victim. A literal
reading of the statute comprehends murder 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 . . . sexual assault. NRS 200.033(4) (quoted in pertinent part). My
colleague's position deprives the statute of its entire scope, for he would find no violation of
this statute if a defendant, after raping a mother in the home, then encountered a teen-age son
while leaving the scene and killed him. In the instant case, Beets interrupted his approach to
sexual assault long enough to kill the sexual assault victim's mother, who had sought to
intervene in Beets' criminal conduct. The killing was, in effect, an integral part of the
planned sexual assault on Beets' former girlfriend.
__________

2
Importantly, the trial judges (circuit court judges) in Florida are also elected. Fla. Const. art. 5, 15. It
should be evident that single elected judges empowered to override jury recommendations and impose capital
sentences would be far more susceptible to political pressure than panels of three elected judges who are not
empowered to override jury determinations.
107 Nev. 957, 973 (1991) Beets v. State
an integral part of the planned sexual assault on Beets' former girlfriend. At no place in the
statute does the language state or infer that a murder committed during or after a sexual
assault or attempted sexual assault has to befall the sexual assault victim.
As noted above, I concur in the majority opinion affirming both the judgment of
convictions pursuant to the jury's verdict, and the sentence of death imposed by the
three-judge panel.
Respectfully, I dissent, I conclude that three aggravating circumstances provided to the
jury at the first penalty hearing were improper and therefore I cannot join in the majority
opinion affirming the sentence.
Preliminarily, I note that, because the jury was improperly instructed during the first
penalty hearing, appellant must be afforded a new penalty hearing. The second penalty
hearing before the three-judge panel did not serve to cure the errors. Appellant correctly
argues that, if the jury had been properly instructed, the jury may have been able to sentence
appellant and the matter may not have proceeded to the three-judge panel. Thus, I conclude
that the errors at the first penalty hearing before the jury require a new penalty hearing before
a jury.
Jury Instruction No. 46 contained the State's alleged aggravating circumstances.
Aggravating Circumstance No. 1 stated [t]he murder was committed by a person under
sentence of imprisonment, to wit: Robbery. In support of this aggravating circumstance, the
State offered an April 1980 robbery conviction. At the second penalty hearing before the
three-judge panel, it became clear that the robbery conviction had expired on July 18, 1987.
Therefore, the instruction was incorrect because appellant was not under imprisonment for
robbery when he killed Mrs. Oretha Hames. Hence, Aggravating Circumstance No. 1 had no
basis in fact and was improperly presented to and considered by the jury. We have previously
held that a penalty phase was flawed by reversible error where a jury found aggravating
circumstances with no basis in fact. Jimenez v. State, 105 Nev. 337, 343, 775 P.2d 694, 698
(1989) (Jimenez I).
Aggravating Circumstance No. 3 in Jury Instruction No. 46 stated that [t]he murder was
committed while the person was engaged in the commission of or an attempt to commit any
sexual assault. Appellant correctly contends that the aggravating circumstance is
unsupported by the evidence because, although appellant did commit a sexual assault, he did
not kill the sexual assault victim. Rather, he killed someone else, whom he did not sexually
assault. No evidence was presented at trial to suggest that appellant killed Oretha during the
commission of, or during the attempt of the commission of, the sexual assault against
Vanita.
107 Nev. 957, 974 (1991) Beets v. State
the attempt of the commission of, the sexual assault against Vanita.
Moreover, I conclude that construing NRS 200.033(4),
1
strictly in favor of the accused
and construing the words in their usual and ordinary sense, allows for the aggravating
circumstance only when the victim of sexual assault is also the murder victim. McKay v.
Board of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (words in a statute will be given
their plain meaning unless this would violate the spirit of the act); Demosthenes v. Williams,
97 Nev. 611, 614, 637 P.2d 1203, 1204 (1981) (a penal statute should be construed in favor
of the accused). Therefore, the district court erred in giving Aggravating Circumstance No. 3
in Jury Instruction No. 46 to the jury.
I turn now to the depravity of mind aggravating circumstance in Jury Instruction No. 46
and attendant Jury Instruction No. 47, defining depravity of mind. I conclude that instruction
No. 46 was improperly given. We have recently stated that 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. Robins v.
State, 106 Nev. 611, 629, 798 P.2d 558, 570 (1990). Accord Jimenez v. State, 106 Nev. 769,
801 P.2d 1366 (1990) (Jimenez II). In this case, no instruction regarding torture, mutilation or
other serious and depraved physical abuse beyond the act of killing itself was provided to the
jury; only the depravity of mind instruction was given. Therefore, the depravity of mind
instruction was erroneous pursuant to our recent decisions in Robins and Jimenez II.
The majority's conclusion that the depravity of mind aggravating circumstance is harmless
error is mistaken. While I maintain that two other aggravating circumstances were
erroneously supplied to the jury, the fact remains that, had the jury not received even one
erroneous aggravating circumstance, it might have been able to sentence appellant and the
three-judge panel would not have been appointed. I am most reluctant to conclude that the
error is harmless when the stakes are a person's life.
Lastly, I wish to remark on the constitutionality of NRS 175.556 and NRS 175.558. NRS
175.556 provides for the appointment of a three-judge panel to sentence a defendant
convicted of first degree murder when the jury is unable to reach a unanimous verdict.2
Similarly, NRS 175.55S provides for the appointment of a three-judge sentencing panel
when a defendant pleads guilty to first degree murder.
__________

1
NRS 200.033(4) authorizes an aggravating circumstance for murder committed in the perpetration of
sexual assault. It states in pertinent part:
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, invasion of the home or kidnaping in the first degree . . . .
107 Nev. 957, 975 (1991) Beets v. State
appointment of a three-judge panel to sentence a defendant convicted of first degree murder
when the jury is unable to reach a unanimous verdict.
2
Similarly, NRS 175.558 provides for
the appointment of a three-judge sentencing panel when a defendant pleads guilty to first
degree murder.
We have previously upheld NRS 175.556 as constitutional. Hill v. State, 102 Nev. 377,
724 P.2d 734 (1986). Accord Baal v. State, 106 Nev. 69, 787 P.2d 391 (1990). I have since
informally researched the cases decided by this court or pending before this court since the
enactment of the statutes in which a three-judge panel was appointed following a guilty plea
or a split jury. It is an extreme rarity for a three-judge panel to deliver a sentence other than
death. A three-judge panel sentenced the defendant to death in eighty-nine percent of the
cases. Only eleven percent of the cases resulted in a sentence of life with or life without the
possibility of parole. These statistics are illustrated by the following chart.
CASE NAME CITE/CASE#/YR.
PLEA/
SPLIT JURY SENTENCE
1. PAINE 21983 Guilty Plea Death
2. JONES 21796 Guilty Plea Death
3. REDMEN 21729 Split Jury Death
4. BEETS 107 Nev 957 (1991) Split Jury Death
5. KIRKSEY 107 Nev 499 (1991) Guilty Plea Death
6. BAAL 106 Nev 69 (1990) Guilty Plea Death
7. FLANAGAN I 105 Nev 135 (1989) Guilty Plea Death
8. FLANAGAN II 105 Nev. 135 (1989) Guilty Plea Death
9. WILLIAMS 103 Nev 227 (1987) Guilty Plea Death
10. MORAN I 103 Nev 138 (1987) Guilty Plea Death
11. MORAN II 103 Nev 138 (1987) Guilty Plea Death
12. HILL 102 Nev 377 (1986) Split Jury Death
13. COLE 101 Nev 585 (1985) Guilty Plea Death
14. WILSON 101 Nev 452 (1985) Guilty Plea Death
15. OLAUSEN 102 Nev. 452 (1985) Guilty Plea Death
16. FARMER 101 Nev 419 (1985) Guilty Plea Death
17. MERCADO 100 Nev 535 (1984) Split Jury Life
Without
18. PRICE 100 Nev 535 (1984) Split Jury Life With
19. BISHOP 95 Nev 511 (1979) Guilty Plea Death
Given these dire statistical odds, I have no alternative but to conclude that our present
sentencing procedures fail to meet constitutional standards as established by the United
States Supreme Court.
__________

2
NRS 175.556 states:
If a jury is unable to reach a unanimous verdict upon the sentence to be imposed, the supreme court shall
appoint two district judges from judicial districts other than the district in which the plea is made, who
shall with the district judge who conducted the trial, or his successor in office, conduct the required
penalty hearing to determine the presence of aggravating and mitigating circumstances, and give sentence
accordingly. A sentence of death may be given only by unanimous vote of the three judges, but any other
sentence may be given by the vote of a majority.
107 Nev. 957, 976 (1991) Beets v. State
conclude that our present sentencing procedures fail to meet constitutional standards as
established by the United States Supreme Court.
The Court has stated: In Furman v. Georgia, 408 U.S. 238, the Court held that the penalty
of death may not be imposed under sentencing procedures that create a substantial risk that
the punishment will be inflicted in an arbitrary and capricious manner. Godfrey v. Georgia,
446 U.S. 420, 427 (1979). Further, the Court has stated that [a] capital sentencing scheme
must, in short, provide a meaningful basis for distinguishing the few cases in which [the
penalty] is imposed from the many cases in which it is not. Id. at 427 (citations omitted).
Nevada has a system of elected judges. If recent campaigns are an indication, any laxity
toward a defendant in a homicide case would be considered a serious, if not fatal, campaign
liability. With sixty-one people on death row, Nevada has the highest per capita number of
inmates under sentence of death of any state. Candidates, almost without exception, seek to
be known for their tough stances on crime. A three-judge panel statistically imposes the death
penalty with far greater frequency than a jury.
3
If through the element of caprice, the jury is
unable to reach a decision in the penalty phase and determination of the penalty in a death
case is given to a three-judge panel, the outcome is fairly predictable. This portion of
Nevada's capital sentencing scheme, therefore, fails to distinguish cases in which the death
penalty is imposed from those in which it is not.
Furthermore, Nevada and Indiana are the only jurisdictions in which a defendant may be
sentenced to death by a judge after a jury is unable to unanimously sentence the defendant.
4
In all other jurisdictions in which the jury sentences the defendant, after the jury is unable to
reach a unanimous sentence, the judge must sentence the defendant to life without the
5
In four jurisdictions, the court alone imposes the sentence and, in
three jurisdictions, the judge may override a jury's recommendation of life.6 Because in
all but one other jurisdiction a defendant is sentenced to life without the possibility of
parole after a jury is split, I am further persuaded that NRS 175.556 is probably not
constitutional.
__________

3
The Clark County Public Defender's Office advises the court that, since July of 1988, seven defendants
were represented before a three-judge panel and one-hundred percent of the defendants received a sentence of
death. In contrast, defendants appearing before a jury received a sentence of death in only forty-five percent of
the cases.

4
Moreover, Indiana is one of the three states in which the judge may override the jury's sentence. Ind. Code
35-50-2-9 (Supp. 1990); Ala. Code 13A-5-46 (1982); Fla. Stat. Ann. 921.141 (West 1985). Therefore,
although Indiana is teamed with Nevada in defaulting to a judge when the jury is split, the jury's sentence
remains only a recommendation even when it is unanimous.

5
See Ark. Stat. Ann. 5-4-603(c) (1977 and Supp. 1987); Cal. Penal Code Ann. 190.4 (West 1988); Colo.
Rev. Stat. 16-11-103 (1986); Conn. Gen. Stat. 53a-46a (1991); Del. Code Ann., Tit. 11, 4209 (1987); Ga.
Code Ann. 17-10-31 (1990); Ill. Rev. Stat., ch. 38, 9-1 (West Supp. 1991); Ky. Rev. Stat. 532.025 (1990);
La. Code Crim. Proc. Ann., Art.
107 Nev. 957, 977 (1991) Beets v. State
four jurisdictions, the court alone imposes the sentence and, in three jurisdictions, the judge
may override a jury's recommendation of life.
6
Because in all but one other jurisdiction a
defendant is sentenced to life without the possibility of parole after a jury is split, I am further
persuaded that NRS 175.556 is probably not constitutional.
As far as the constitutionality of NRS 175.558 providing for sentencing by a three-judge
panel following a guilty plea, I conclude that it is similarly infirm. While other jurisdictions
with capital sentencing procedures provide for sentencing by a judge or a panel of judges
after a guilty plea, more than half of the jurisdictions extend the defendant's right to be
sentenced by a jury after the entry of a guilty plea.
7
While I do not deny that such procedural
schemes could pass constitutional muster in other jurisdictions, I remain unconvinced
that allowing a three-judge panel to sentence a defendant following a guilty plea is
constitutional in Nevada in light of the statistical odds of receiving death from the panel
in Nevada.S Thus, I conclude that NRS 175.55S is of doubtful constitutionality.
__________
905.8 (West Supp. 1991); Md. Ann. Code, Art. 27, 413 (1988); Mass. Gen. Laws Ann., ch. 279, 70 (Supp.
1991); Miss. Code Ann. 99-19-101 (Supp. 1990); Mo. Rev. Stat. 565.030 (West Supp. 1991); N.H. Rev.
Stat. Ann. 630.5 (Supp. 1990); N.J. Stat. Ann. 2C:11-3(c) (West Supp. 1991); N.M. Stat. Ann. 31-20A-3
(1990); N.C. Gen. Stat. 15A-2000 (1988); Ohio Rev. Code Ann. 2929.03 (1987); Okla. Stat., Tit. 21,
701.11 (West Supp. 1991); Or. Rev. Stat. 163.150 (1989); 42 Pa. Cons. Stat. 9711 (West 1982); S.C. Code
16-3-20 (Supp. 1990); S.D. Comp. Laws Ann. 23A-27A-4 (1979); Tenn. Code Ann. 39-2-203 (Supp. 1990);
Tex. Code Crim. Proc. Ann., Art. 37.071 (West Supp. 1991); Utah Code Ann. 76-3-207 (1990); Va. Code
19.2-264.4 (1990); Wash. Rev. Code 10.95.080 (West 1990); Wyo. Stat. 6-2-102 (1988).

6
See note 4 supra.

7
Sixty-two percent of the jurisdictions provide that a defendant will be sentenced by a jury after a guilty plea
unless the defendant waives the right. See Ark. Stat. Ann. 5-4-103 and 5-4-6015-4-609 (1977); Cal. Penal
Code Ann. 190.4 (West 1988); Del. Code Ann., Tit. 11, 4209 (1987); Ill. Rev. Stat., ch. 38, 9-1 (West
Supp. 1991); Ky. Rules Ann. CR 9.84 (1990); La. Code Crim. Proc. Ann., Art. 557 (West Supp. 1991); Md.
Ann. Code, Art. 27, 413 (1988); Ann. Laws Mass. GL, ch. 263, 6 (1980) and ch. 279, 70 (Supp. 1991);
Miss. Code Ann. 99-19-101 (Supp. 1990); N.H. Rev. Stat. Ann. 630.5 (Supp. 1990); N.M. Stat. Ann.
31-20A-1 (1990); N.C. Gen. Stat. 15A-2001 (1988); Or. Rev. Stat. 163.150 (1989); 42 Pa. Cons. Stat.
9711 (West 1982); Tenn. Code Ann. 39-13-205 (Supp. 1990); Tex. Code Crim. Proc. Ann., Art. 37.071 (West
Supp. 1991); Utah Code Ann. 76-3-207 (1990); Wash. Rev. Code 10.95.050 (West 1990).
Thirty-eight percent provide for sentencing by a judge or a panel of judges following a plea of guilty. See
Colo. Rev. Stat. 16-11-103 (1986); Conn. Gen. Stat. 53a-46a (1991); Ga. Code Ann. 17-10-32 (1990); Mo.
Rev. Stat. 565.006 and 565.030 (West Supp. 1991); N.J. Stat. Ann. 2C:11-3(c) (West Supp. 1991); Ohio
Rules of Crim. Proc. CR 11 (1987); Okla. Stat., Tit. 21, 701.10 (West Supp. 1991); S.C. Code 16-3-20
(Supp. 1990); S.D. Comp. Laws Ann. 23A-27A-4 and 23A-27A-6 (1979); Va. Code 19.2-257 (1990);
Wyo. Stat. 6-2-102 (1988).
Additionally, of the remaining jurisdictions which impose the death penalty, out of the three which provide
for a judicial override of the jury's recommended sentence, two provide for sentencing by a jury after a guilty
plea. See Fla. Stat. Ann. 921.141 (West 1985); Ala. Code 13A-5-42
107 Nev. 957, 978 (1991) Beets v. State
procedural schemes could pass constitutional muster in other jurisdictions, I remain
unconvinced that allowing a three-judge panel to sentence a defendant following a guilty plea
is constitutional in Nevada in light of the statistical odds of receiving death from the panel in
Nevada.
8
Thus, I conclude that NRS 175.558 is of doubtful constitutionality.
Moreover, returning to the case at bar, the erroneous aggravating circumstances supplied
to the jury may well have been the determinant factor in the jury's inability to sentence the
appellant. Because of these erroneous instructions, therefore, appellant was then required to
be sentenced by a three-judge panel which almost assuredly would sentence him to death. I
am mindful that the appellant's acts in this case were particularly reprehensible. However,
Justice Hugo Black appropriately wrote: Bad men, like good men, are entitled to be tried and
sentenced in accordance with law . . . . Green v. United States, 365 U.S. 301, 309-310
(1961). The sentencing procedures utilized in this case were not in accordance with law
because they contained a substantial risk that the punishment would be inflicted in an
arbitrary and capricious manner.
In sum, I believe the three aggravating circumstances given to the jury were erroneous and
require a new penalty hearing. I dissent because I cannot join the majority in affirming the
sentence when the jury received these erroneous instructions and when the sentencing
procedures used were of dubious constitutionality.
__________
13A-5-53 (1982). In Indiana, the third judicial override jurisdiction, the court sentences the defendant following
a guilty plea. See Ind. Code 35-50-2-9(d) (Supp. 1990).

8
The United States Supreme Court has held that there is no constitutional right to be sentenced by a jury.
Spaziano v. Florida, 468 U.S. 447 (1984). In Spaziano, a Florida judge overrode the jury's recommendation of
life and sentenced the defendant to death. The Supreme Court upheld Florida's sentencing scheme as
constitutional. Id. at 466.
While there is no constitutional right to be sentenced by a jury, there is a constitutional right to be fairly
sentenced. I dissent in the instant case because I believe our sentencing procedures are probably
unconstitutionally applied. I do not believe that our sentencing scheme is unconstitutional on its face. If the
three-judge panel did not sentence a defendant to death in virtually all of the cases, I could confidently assert that
the scheme is constitutional. However, this unfortunately is not the case.
It would thus appear that although the Florida sentencing scheme is constitutional on its face, a similar as
applied challenge could be made if in Florida the judges always overrode a jury's recommendation of life and
sentenced the defendant to death.
____________
107 Nev. 979, 979 (1991) Beenstock v. Villa Borega
ROBERT BEENSTOCK, ROGER J. CHIUPPI, ROBERT D. BENSON; RUSSELL STONE,
JR.; LAWRENCE CYGANEK AND KAY TRICOLI, Appellants, v. VILLA
BOREGA MOBILE HOME PARKS; MOBILE HOME PARKS WEST; MARJORIE
INVERSON; WILLIAM IVERSON, Respondents.
No. 21202
December 26, 1991 823 P.2d 270
Appeal from a district court judgment denying appellants relief from a lease in
respondents' mobile home park. Eighth Judicial District Court, Clark County; Thomas A.
Foley, Judge.
Tenants of mobile home park brought action against landlords to recover on ground that
rent adjustment under long-term leases did not afford same rent increases to all residents. The
district court dismissed claims. Tenants appealed. The supreme court held that statutory
prohibition against landlords of mobile home park increasing rent unless increase is same
amount for each space did not apply to long-term leases.
Affirmed.
Leslie Mark Stovall, Las Vegas, for Appellants.
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Respondents.
Supreme court may affirm decision of lower court based upon issue that was not found to be deciding issue below.
Statutory prohibition against landlords of mobile home park increasing rent unless increase is same amount for each space did not
apply to long-term leases. NRS 118B.150, subd. 1(a).
OPINION
Per Curiam:
In 1980, respondents (landlords) opened a 293-space mobile home park in Las Vegas,
Nevada. The landlords offered new residents promotional long-term leases of three to five
years in duration, featuring predetermined rental increases and rents below those in
comparable spaces in other parks in the Las Vegas area (market rate). Tenants holding
long-term leases would become month-to-month tenants when their leases expired. Based on
a slow adjustment policy, over a period of time, these month-to-month tenants eventually
would be paying the market rate.
As of July 1, 1987, approximately one hundred and forty-seven promotional leases were
still in effect, and rents charged to tenants whose promotional leases had expired varied
from $32 to $129 per month below the market rate.
promotional leases were still in effect, and rents charged to tenants whose promotional leases
had expired varied from $32 to $129 per month below the market rate. In the fall of 1987, the
landlord's issued month-to-month tenants notice of rent increases. These increases varied
from tenant to tenant and were consistent with the park policy of taking into consideration the
desirability of the space rented, as measured by its size, configuration, location, and
accessibility to recreation facilities. In October of 1987, as a result of these notices, residents
filed a complaint with the Division of Manufactured Housing (Division).
Under the law as it existed before July 1, 1987, the landlords were permitted to increase
rental rates of month-to-month tenants upon ninety days notice, so long as the new rental rate
applied in a non-discriminatory manner to tenants who were similarly situated. Effective
July 1, 1987, however, NRS 118B.150(1)(a) was amended to require rental increases to be
the same amount for each space in the park.
1
The Division found that the landlords' rental
increase notices violated NRS 118B.150(1)(a), because the increases were not the same
amount for each month-to-month tenant. Consequently, the landlords withdrew the rental
increase notices and served all month-to-month tenants with a notice that their rent would be
increased by $70 per month, effective April 1, 1988. This amount represented the median
between the highest and the lowest rent discrepancies from the market rate. This approach,
however, left certain month-to-month tenants paying rent above the market rate.
Also as a result of the Division's decision, the landlords accelerated their plan to begin
offering long-term leases. In January of 1988, they began offering ten-year leases to those
month-to-month tenants whose promotional long-term leases had expired.
__________

1
At the time of the complaint, NRS 118B.150(1)(a) stated:
The landlord or his agent or employee shall not:
1. Increase rent or additional charges unless:
(a) The rental increase is the same amount for each space in the park, except that a discount may be
selectively given to persons who are handicapped or who are 62 years of age or older, and any increase in
additional charges for special services is the same amount for each tenant using the special service.
(Emphasis added.) This statutory provision was amended again in 1991 to state:
The landlord or his agent or employee shall not:
1. Increase rent or additional charges unless:
(a) The rental increase applies in a uniform manner to mobile homes or lots of the same size, except
that a discount may be selectively given to persons who are handicapped or who are 62 years of age or
older, and any increase in additional charges for special services is the same amount for each tenant using
the special service.
(Emphasis added.)
expired. For tenants whose rent was below market rate, those leases provided for gradual rent
increases over an extended period until the rents equaled the market rate, with cost of living
adjustments thereafter, based on a formula set forth in the lease. The landlords distributed the
lease to all month-to-month tenants for review and held six formal meetings over a six-month
period to discuss and explain the lease to the tenants. Although the tenants did not attend
these meetings, they submitted a list of questions and concerns. After the lease was modified
and again distributed to all month-to-month tenants, certain tenants contacted the Division
and were advised that NRS 118B.150 did not apply to the lease because the lease was a
long-term contract negotiated between the parties.
On March 28, 1988, sixteen tenants filed a complaint against the landlords, alleging that
the rent adjustment under the long-term leases violated NRS 118B.150(1)(a) because it did
not afford the same rent increases to all residents of Villa Borega. The tenants sought entry of
a declaratory judgment as to the rights, duties, and responsibilities of the parties with respect
to the notice of the rent increase, the threatened rent increase, and the lease and rent
assistance program.
The landlords filed a motion for summary judgment. On November 10, 1988, the district
court dismissed the tenants' claims regarding most sections of chapter 118B of Nevada
Revised Statutes. The only issue remaining for trial was whether NRS 118B.150(1)(a) applies
to long-term leases and, if so, whether it is constitutional as applied to this case. The court
ruled that although NRS 118B.150(1)(a) applies to long-term leases, the statute
unconstitutionally violates the due process clause, as it applies to the facts of this case.
[Headnote 1]
Although the district court's decision was based upon the constitutionality of the 1987
amendment to NRS 118B.150(1)(a), we may not consider that issue in this opinion because
we conclude that this statute does not apply to long-term leases. This court may affirm a
decision of the lower court based upon an issue that was not found to be the deciding issue
below. Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981).
[Headnote 2]
The landlords argue that NRS 118B.150(1)(a) is inapplicable to long-term leases based
upon (1) the statutory goal of protecting month-to-month tenants, and (2) the statute's
interpretation by coordinate branches of government. With respect to the purpose of NRS
118B.150(1)(a), the landlords argue that the purpose of this statute was to protect
month-to-month tenants. They note that NRS 11SB.150{1){b) requires a ninety-day notice
of the rent increase, and that this subsection also does not expressly exempt long-term
leases.
NRS 118B.150(1)(b) requires a ninety-day notice of the rent increase, and that this subsection
also does not expressly exempt long-term leases. However, if NRS 118B.150(1)(b) were held
to apply to long-term leases, it would conflict with two other provisions which expressly
address the termination of long-term leases. See NRS 118B.040(2)(a)
2
and NRS
118B.190(5).
3

Next, the landlords argue that coordinate branches of government have interpreted NRS
118B.150(1)(a) as not applying to long-term leases. This court has held that:
Where a doubt may exist as to the proper construction to be placed on a
constitutional or statutory provision, courts will give weight to the construction placed
thereon by other coordinate branches of government and by officers whose duty it is to
execute its provisions.
State v. Brodigan, 35 Nev. 35, 39, 126 P. 680, 682 (1912). In the instant case, the
administrator of the Division, the agency responsible for enforcing NRS 118B.150(1)(a),
testified that the Division interpreted the provision as being inapplicable during the duration
of a long-term lease. Thus, we conclude that NRS 118B.150(1)(a) does not apply to long-term
leases in mobile home parks, and we affirm the district court's decision.
Mowbray, C. J., Springer, Rose and Young, JJ., and Sullivan, D. J.
4
, concur.
____________
107 Nev. 982, 982 (1991) Salazar v. State
MARCO ANTONIO SALAZAR, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21473
December 30, 1991 823 P.2d 273
Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of sale of
a controlled substance. Fourth Judicial District Court, Elko County; Joseph O. McDaniel,
Judge.
Defendant was convicted of sale of controlled substance after jury trial in the district court.
Defendant appealed. The supreme court held that limiting defense counsel's voir dire to 30
minutes was unreasonable and constituted reversible error.
__________

2
NRS 118B.040(2)(a) states that written rental agreements for mobile homes must specify the duration of
the agreement.

3
NRS 118B.190 provides rules for the termination of oral or written leases.

4
The Honorable Jerry v. Sullivan, Judge of the Sixth Judicial District Court, was designated by the Governor
to sit in place of The Honorable Thomas L. Steffen, Justice. Nev. Const. art. VI, 4.
court held that limiting defense counsel's voir dire to 30 minutes was unreasonable and
constituted reversible error.
Reversed and Remanded.
Gary D. Woodbury, Elko, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Marshall Smith, District Attorney,
Elko County, for Respondent.
Criminal Law; Jury.
Limiting defense counsel's voir dire to thirty minutes clearly amounted to unreasonable restriction of counsel's examination of
prospective jurors and constituted reversible error; limitation was completely arbitrary, having no relation to circumstances of case, and
resulted in defense counsel being deprived of opportunity to examine eleven of the prospective jurors. NRS 175.031.
OPINION
Per Curiam:
Appellant was arraigned in district court on April 16, 1990, on two counts of sale of a
controlled substance. NRS 453.321. Appellant entered a plea of not guilty. Following a jury
trial, the district court convicted appellant of both counts and sentenced appellant to serve two
concurrent five-year terms in the Nevada State Prison. The district court further ordered that a
certified copy of the judgment of conviction be sent to the Department of Immigration and
Naturalization with the recommendation that appellant be deported as an undesirable alien.
On appeal, appellant challenges the method by which defense counsel was allowed to
examine the potential jurors. Specifically, appellant contends that the district court
improperly limited the time which counsel had to examine the potential jurors, and thereby
effectively deprived appellant of his right to conduct supplemental voir dire. We agree.
On the first day of trial, Judge McDaniel informed the prospective jurors that he was going
to use the Arizona method of jury selection.
1
Judge McDaniel seated twenty-three
prospective jurors and conducted his own voir dire.
__________

1
No explanation of the Arizona method of jury selection appears in the record. We note, however, that
Arizona Rule of Criminal Procedure 18.5 provides in part:
d. Voir Dire Examination. The court shall conduct the voir dire examination, putting to the jurors all
appropriate questions requested by counsel. The court may in its discretion examine one or more jurors
apart from the other jurors.
If good cause appears, the court may permit counsel to examine an individual juror.
After reading this rule, it is unclear to us why the district court referred to the
jurors and conducted his own voir dire. Judge McDaniel first addressed each prospective
juror separately, asking each person where he lived, his occupation, his spouse's occupation,
and how long he had lived in the Elko area. Judge McDaniel asked a series of questions of the
group as a whole, asking the prospective jurors to raise their hands if their answer to any
question was positive. The questions related generally to whether the prospective jurors had
knowledge of the case or the parties, and whether they felt they could not be fair and
impartial.
Following a short break, defense counsel began his voir dire of the prospective jurors.
After counsel had questioned one woman and passed her for cause, the following exchange
occurred:
THE COURT: You have got to go at the whole panel. You have got 15 minutes on
your first
. . .
DEFENSE COUNSEL: Court intends to impose the half hour limitation? Can I make a
record that I object to that. That leaves us slightly over a minute for each juror. There
are 23 jurors seated, and we are having imposed upon us a half hour limitation for voir
dire. We believe that's an unreasonable limitation.
THE COURT: You may proceed, I will consider whether or not to give you additional
time. You are supposed to complete your examination in 20 minutes, Mr. Stermitz will
have 30 minutes, then you will have an additional 10 minutes to go back and pick up
loose ends. You may proceed.
Defense counsel proceeded to examine eleven more prospective jurors. Judge McDaniel then
informed counsel that he had used up his thirty minutes and asked counsel to be seated. After
the prosecutor completed his voir dire, Judge McDaniel and the attorneys retired to chambers
to exercise their peremptory challenges. A lengthy exchange took place regarding the
propriety of limiting voir dire to thirty minutes. During that discussion, defense counsel
moved for a stay to seek an order from this court granting him additional voir dire. The
district court denied counsel's motion, stating:
My ruling is that you hadyou have been allowed to reasonably participate in the voir
dire examination. And I let you go beyond the half hour, and you still didn't finish. So
we ran out of time.
__________
method of jury selection it employed as the Arizona method. Further, to use the method of voir dire
established by Arizona Rule of Criminal Procedure 18.5 would be a violation of NRS 175.031. While the
Arizona rule provides that the district court may permit counsel to examine an individual juror if good cause
appears. NRS 175.031 provides that defendants are entitled to supplement the examination by such further
inquiry as the court deems proper.
ran out of time. It was time for exercising peremptory challenge [sic]. . . .
Your motion is denied. Your request to get a writ is denied. You will have to do it
on appeal. . . .
The court shall conduct the initial examination of prospective jurors, and defendant or
his attorney and the district attorney are entitled to supplement the examination by
further inquiry as the court deems proper. Any supplemental examination must not be
unreasonably restricted.
This court has stated that [b]oth the scope of voir dire (Cunningham v. State, 94 Nev. 128,
575 P.2d 936 (1978)) and the method by which voir dire is pursued (Wilkins v. State, 96 Nev.
367, 609 P.2d 309 (1980)) are within the discretion of the district court. Summers v. State,
102 Nev. 195, 199, 718 P.2d 676, 679.
Under the facts of this case, the district court abused its discretion in limiting defense
counsel's voir dire to thirty minutes. The limitation was completely arbitrary, having no
relation to the circumstances of the case, and resulted in defense counsel being deprived of
the opportunity to examine eleven of the prospective jurors. Such a restriction clearly
amounted to an unreasonable restriction of counsel's examination of the prospective jurors.
See NRS 175.031. Further, we are unable to conclude that the district court's abuse of
discretion did not prejudice appellant.
Accordingly, we reverse appellant's judgment of conviction, and we remand this case to
the district court for a new trial.
____________
107 Nev. 985, 985 (1991) Ebarb v. State, Dep't of Mtr. Vehicles
JAMES D. EBARB, Appellant, v. STATE OF NEVADA, DEPARTMENT OF MOTOR
VEHICLES AND PUBLIC SAFETY, Respondent.
No. 22004
December 30, 1991 822 P.2d 1120
Appeal from an order of the district court affirming the Nevada Department of Motor
Vehicles and Public Safety revocation of appellant's driving privileges. Eighth Judicial
License of driver, convicted of driving under influence of alcohol, was suspended by
Department of Motor Vehicles.
Driver petitioned for judicial review. The district court denied review and affirmed. Driver
appealed. The supreme court held that arresting officer determined that driver had prior
driving under influence convictions, driver no longer had right to refuse blood test, and thus,
officer was justified in requiring driver to take blood test without first giving him option of
refusing or offering him election between blood test and breath test.
Affirmed.
John G. Watkins, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Grenville Thomas Pridham and
Laurie Foremaster, Deputy Attorneys General, Las Vegas, for Respondent.
Automobiles.
Once arresting officer determined that driver had prior driving under influence convictions, driver no longer had right to refuse
blood test, and thus, officer was justified in requiring driver to take blood test without first giving him option of refusing or offering
him election between blood test and breath test. NRS 484.383(2), (5), (8).
OPINION
Per Curiam:
Appellant James D. Ebarb was arrested for driving under the influence of alcohol. A
record check through dispatch revealed two prior convictions for DUI in the past seven years.
The officer did not read appellant the implied consent law. Instead, he informed appellant that
appellant was required to submit to a chemical test. Appellant then submitted to a blood test.
The blood test revealed appellant's alcohol level to be .327 percent. Based on the results of
the blood test, the Department of Motor Vehicles and Public Safety revoked appellant's
driver's license. The district court denied appellant's petition for judicial review and affirmed
the Department's revocation decision. This appeal followed. Because we conclude that once
an arresting officer has determined that a suspect has prior DUI convictions the suspect no
longer has a right to refuse a blood test, we affirm the decision of the district court.
DISCUSSION
Appellant argues that the result of his blood test was improperly admitted at the revocation
hearing because the officer did not substantially comply with the provisions of NRS 484.383,
as required under 4S4.3S9{2).1 Specifically at issue is the interpretation of NRS
4S4.3S3{S), which provides:
required under 484.389(2).
1
Specifically at issue is the interpretation of NRS 484.383(8),
which provides:
If a person to be tested fails to submit to a required test as directed by a police officer
under this section, none may be given, except that if the officer has reasonable cause to
believe that the person to be tested was driving . . . while under the influence of
intoxicating liquor . . . and that person:
. . . .
(b) Has been convicted of an offense, as defined in subsection 7 of NRS 484.3792,
within the previous 7 years, the officer may direct that reasonable force be used to the
extent necessary to obtain a sample of blood from the person to be tested.
Also relevant are NRS 484.383(2), which requires the arresting officer to inform a suspect
that if he refuses to submit to a test his license will be revoked, and NRS 484.383(5), which
requires the officer to offer the suspect a choice between a breath test and a blood test.
Appellant argues that according to the language of NRS 484.383(8), only after the suspect
is warned of the consequences of refusal under NRS 484.383(2), is offered a choice of a
blood test or breath test under NRS 484.383(5), and has refused to submit to any test, may the
officer then require the suspect to submit to a blood test. Therefore, appellant contends, the
officer did not substantially comply with the Nevada implied consent law, the results of the
blood test should have been excluded, and the revocation was improper.
Appellant's reading of NRS 484.383(8) is erroneous. Statutes should be construed with a
view to promoting, rather than defeating the legislative policy behind them. State, Dep't of
Mtr. Vehicles v. Brown, 104 Nev. 524, 526, 762 P.2d 882, 883 (1988). The clear intent of
NRS 484.383(8) is to obtain a blood test if there is reasonable cause to believe a DUI suspect
has committed a felony. Further, this court has consistently held that the implied consent
statute should be liberally construed so as to keep drunk drivers off the streets. State, Dep't
of Mtr. Vehicles v. Kinkade, 107 Nev. 257, 259, 810 P.2d 1201, 1202 (1991). See also Davis
v. State, 99 Nev. 25, 27, 656 P.2d 855, 856 (1983). It would frustrate the purpose of the
statute to require an officer to inform a suspect of the consequences of refusing a test when
the suspect may not refuse a test, or to offer the suspect a choice between a blood test
and a breath test when the suspect has no choice.
__________

1
[A] court or hearing officer may not exclude evidence of a required test . . . if the police officer . . .
substantially complied with the provisions of NRS 484.383 to 484.393, inclusive.
suspect may not refuse a test, or to offer the suspect a choice between a blood test and a
breath test when the suspect has no choice.
The officer was justified in requiring appellant to take a blood test without first giving him
the option of refusing, or offering him an election between a blood test and a breath test,
because appellant's prior convictions made a blood test inevitable under 484.383(8). Because
the officer advised appellant that he was required to take a blood test, as required by NRS
484.383(8), we conclude that the officer did comply with the provisions of NRS 484.383 and
thus the blood test result was admissible and the revocation proper.
Appellant's other claims being without merit, we affirm the decision of the district court.
____________
107 Nev. 988, 988 (1991) Matter of the Estate of Kern
IN THE MATTER OF THE ESTATE OF DORSEY A. KERN, Deceased. ROBERT D.
KERN, RONALD D. KERN, and MARY KERN, Appellants, v. KAY F. KERN, Executrix,
Respondent.
No. 21237
December 30, 1991 823 P.2d 275
Appeal from a district court order granting Executrix Kay F. Kern the authority to
complete conveyance of a Colorado ranch. Eighth Judicial District Court, Clark County;
Thomas A. Foley, Judge.
Executrix of estate sought order to complete conveyance of property from estate to
corporation of which decedent and executrix had been sole shareholders. The district court
granted authority, and appeal was taken. The supreme court held that: (1) executrix lacked
standing to bring action, as conveyance in question would not be in best interest of estate, and
(2) in any event there was no contractual obligation on part of estate to complete conveyance.
Michael R. Mushkin & Associates and Mark C. Hafer, Las Vegas, for Appellants.
Christopher G. Gellner, Las Vegas; Vannah, Roark & Costello, Las Vegas, for
Respondent.
1. Executors and Administrators.
Decedent's spouse lacked standing, as administrator of estate, to have estate convey real property to corporation of which she and
decedent had been sole shareholders; administrator could seek conveyance only in best interest of estate, and estate had no interest in
seeing property transferred to corporation. NRS 148.090.
Decedent's estate was not under a contractual obligation to convey real property to a corporation of which decedent and his spouse
had been sole shareholders, even though there were corporate minutes reflecting purported transfer and a purchase contract had been
signed on behalf of corporation by spouse; minutes and contract did not reflect adequately terms of contract such as price, description
of property, and payment terms, and there was no consideration for conveyance other than worthless shares.
3. Corporations.
Corporate minutes reflecting purported agreement on the part of corporate president to transfer property to corporation, if
otherwise sufficient, would not constitute contract to convey sufficient to require landowner's estate to issue deed after president died;
corporate minutes were signed in his capacity as president and temporary chairman, and had never been signed in his individual
capacity. NRS 111.210(1).
OPINION
Per Curiam:
On April 19, 1985, Dorsey A. Kern (Dorsey), a Nevada resident, executed a will
bequeathing most of his personal and real property physically located in Nevada to his wife,
Kay Kern (Kay).
1
The will also provided that Dorsey's real and personal property in
Colorado, including a ranch in Cheyenne Wells, Colorado, would be placed in a trust which
would be administered by Kay as trustee.
2

On June 27, 1987, Dorsey retained a Las Vegas Attorney to form a Nevada corporation
named DorKay, Inc. Dorsey and Kay each owned fifty percent of the shares in the
corporation. On June 29, 1987, the directors of the corporation held their first meeting.
3
At
the meeting, which took place in the attorney's office, it was decided that the corporation
would issue 2,500 shares of capital stock to Dorsey and Kay in exchange for all right, title,
and interest in the Cheyenne Wells ranch.
__________

1
Kay Kern was Dorsey Kern's second wife. They were married on February 28, 1982. Appellants are
Dorsey's children from his first marriage.

2
Under the terms of the trust, Kay was to receive the income from the Colorado properties for the rest of her
life or until she remarried, at which time the trust would terminate and the undistributed income and corpus
would be paid to Dorsey's adult children.

3
DorKay, Inc.'s board of directors consisted of two members: Dorsey and Kay Kern.
and interest in the Cheyenne Wells ranch. The minutes stated in pertinent part:
After due consideration of the offer and by unanimous vote, the following resolution
was adopted:
WHEREAS, DORSEY A. & KAY F. KERN
4
has [sic] offered to transfer [the
ranch] to this corporation, upon the terms and conditions as more fully appears in the
offer which has been heretofore set forth in these minutes in return for the issuance to
DORSEY A. and KAY F. KERN . . . 2500 shares of capital stock of said corporation.
(Footnote added.) These minutes were signed on June 29, 1987, as was the purchase
agreement. The purchase agreement, however, was signed only by Kay and offers no
specificity, terms, or description of the property in question. It simply states in relevant part:
The propert [sic] situated in Cheyenne Wells Colo described as followes [sic].
Abstracts to same have been approved to transfer property into DorKay Corporation.
It is resolved that all mineral, oil, gas rights herewithin [sic] as described in the
abstracts go with the land purchased by DorKay Corporation.
Although the corporation transferred the 2,500 shares of stock to Dorsey and Kay as joint
tenants with the right of survivorship, the real property was never transferred to the
corporation.
Dorsey died on April 4, 1989, and Kay was appointed as executrix of the estate. She
sought an order from the district court to complete conveyance of the Cheyenne Wells ranch
from Dorsey's estate to DorKay, Inc. Such conveyance would render complete title to Kay as
the sole shareholder of DorKay, Inc. Even though the corporation was not a party to this suit
and the estate would not benefit from the transfer, the district court granted the order. We
conclude that the district court erred.
NRS 149.110 provides the probate court with discretionary power to make a decree
authorizing and directing the executor or administrator of an estate to convey real property to
persons entitled, if the decedent: (1) is bound by a written contract to do so; and (2) if living,
might have been compelled to make such a conveyance. The statute clearly demonstrates the
legislative intent to satisfy the right of either the estate or a third party in completing a
conveyance which has been affected or delayed by the conveyor's death.
__________

4
Kay Kern had no interest in the property.
[Headnote 1]
We conclude that Dorsey was neither bound by a written contract to convey his property,
nor could he have been compelled to make the conveyance.
5
Finally, we conclude that Kay,
as executrix of Dorsey's estate, has no standing to bring this suit. Cf. Washoe Broadcasting
Co. v. Neuhoff, 102 Nev. 464, 726 P.2d 338 (1986) (only a party with an actual interest has
standing to petition for a sale under NRS 148.090). Although this type of action generally is
filed by a third party, the executrix or administrator may seek a conveyance in the best
interests of the estate. Id. Dorsey's estate, however, had no interest in seeing the Cheyenne
Wells ranch transferred to DorKay, Inc. Rather, it was in the estate's best interest to retain the
property in the trust. Therefore, the estate was without standing to seek the relief requested.
[Headnote 2]
While we conclude that reversal is warranted on the issue of standing alone, we also find
that as a matter of law, an order of specific performance should not have been granted in this
case.
In the case at bar, several essential elements of a valid contract are missing. First, neither
the corporate minutes nor the purchase agreement adequately indicate the terms of the
contract or provide necessary details as to the description of the property. In addition, material
terms such as subject matter, price, payment terms, quantity, and quality are either altogether
lacking or insufficiently certain and definite to support specific performance. See Calamari &
Perillo, Contracts 2-9 (3rd ed. 1987). Moreover, there is no adequate consideration binding
the parties. DorKay, Inc. offered 2,500 shares of worthless stock (the corporation had no
assets) in exchange for valuable property. While courts of law generally need not concern
themselves with the adequacy of the consideration, courts of equity must. See LaGue v.
District Court, 68 Nev. 125, 127, 227 P.2d 436, 437 (1951) (court found that petitioner
properly stated cause of action by arguing that alleged contract sought to be specifically
enforced was incomplete and neither fair nor reasonable, and that consideration was
inadequate). Because the consideration in the case at bar was inadequate, we refuse to violate
principles of equity by upholding specific performance.
[Headnote 3]
Finally, the agreement was not signed by the party to be bound. NRS 111.210(1) states that
a contract for the sale of land shall be void unless the contract, or some note or
memorandum thereof, expressing the consideration, be in writing, and be subscribed by
the party by whom the lease or sale is to be made."
__________

5
In order to compel conveyance, Dorsey, in his corporate capacity as President of DorKay, Inc., would have
had to sue himself in his individual capacity as owner of the Cheyenne Wells ranch. We find this scenario
implausible.
thereof, expressing the consideration, be in writing, and be subscribed by the party by whom
the lease or sale is to be made. (Emphasis added.) Kay suggests that the corporate minutes of
the first meeting of the directors of DorKay, Inc. are sufficient for this purpose. We disagree.
Dorsey signed the corporate minutes in his capacity as President and Temporary
Chairman. He never signed them in his individual capacity. It is incumbent upon one
seeking to extend personal liability to a corporate officer for corporate debt, to show that the
officer intended to be personally bound or that the creditor was looking to the officer as
guarantor of the debt. Trident Construction v. West Electric, 105 Nev. 423, 428, 776 P.2d
1239, 1242 (1989) (corporation officer's signature, without statement acknowledging he was
acting for corporation, was insufficient to support finding of personal guarantee for debt of
corporation); Gross v. Lamme, 77 Nev. 200, 204-205, 361 P.2d 114, 116 (1961) (where
instrument contains signature words indicating that subscriber is signing on behalf of
principal, or in a representative capacity, subscriber is not liable on the instrument if duly
authorized to sign). Therefore, we conclude that because Dorsey was the owner and alleged
seller of the land in question, his signature as an individual was required.
We also note that although there is evidence indicting that Dorsey intended to transfer the
property to the corporation, such evidence is insufficient and does not establish an intent to be
bound by a contract. Kay's efforts appear to be an attempt to compel conveyance of an inter
vivos gift rather than to complete a contract. We therefore reverse the order of the district
court and remand for further proceedings consistent with this opinion.
Respectfully, I dissent. I believe the majority's conclusions that Ms. Kern had no standing
to seek relief and that the corporate minutes fail to constitute a contract are erroneous.
Because I conclude that there was indeed an enforceable contract, I would affirm the district
court's order authorizing the executrix to complete the conveyance.
Standing
The majority concludes that Ms. Kern, as executrix of the estate, had no interest in seeing
the ranch transferred to Dorkay, Inc., and, therefore, she had no standing to seek the requested
relief. While I do not dispute that it may have been in the interest of the estate to retain the
property in the trust, it is also in the interest of the estate to determine the precise composition
of the estate. Surely, Ms. Kern should not be penalized for seeking an order that would legally
determine the property in the estate. Not only does the estate have an interest in the proper
resolution of any questions, it would appear to be sound public policy to encourage an
executrix to promptly seek an order determining assets in an estate if there is a dispute.
only does the estate have an interest in the proper resolution of any questions, it would appear
to be sound public policy to encourage an executrix to promptly seek an order determining
assets in an estate if there is a dispute. Perhaps the majority is disturbed by the appearance of
a conflict of interest that Ms. Kern may have as the executrix. If this is indeed the case, a
discussion of standing does little to help settle the underlying dispute. I respectfully submit
that Ms. Kern had standing to request the relief.
The Existence of a Contract
In support of its conclusion that the corporate minutes fail to constitute a contract to
transfer the ranch to DorKay, Inc., the majority states that Mr. Dorsey Kern did not sign the
minutes in an individual capacity, but rather as the president and temporary chairperson of
DorKay, Inc. I am unaware of any requirement under NRS 111.210(1) that Mr. Kern must
have signed the contract as an individual. The majority cites cases which do not address this
issue and are inapposite in this instance.
The majority next concludes that the evidence does not indicate an intent on the part of
Mr. Kern to enter into a contract, but rather merely indicates an intent to transfer his property
to DorKay, Inc. I venture the suggestion that this semantic splitting of hairs is premised on
faulty logic. The subject of the offer concerned the transfer of Mr. Kern's ranch to DorKay,
Inc. If there was an intent to transfer the ranch for certain consideration, it would seem to
follow that there was an intent to enter into a contract.
I note that the corporate minutes contain the following language:
The chairman suggested that the meeting consider the proposal of DORSEY A. KERN
and KAY F. KERN, said proposal being as follows: to transfer all of their right title
and interest in and to that certain ranch at Cheyenne Wells, Colorado, known as the
Cheyenne Wells Ranch. After due consideration of the offer and by unanimous vote,
the following resolution was adopted:
WHEREAS, DORSEY A. & KAY F. KERN has [sic] offered to transfer this
corporation, upon the terms and conditions as more fully appears in the offer which has
been heretofore set forth in these minutes in return for the issuance to DORSEY A. and
KAY F. KERN, or [sic] of 2500 shares of capital stock of said corporation. . . .
(Emphasis added.) Intent is a necessary element for the formation of a contract. The
above-quoted language contains all of the requisite elements of a contract, an agreement
which creates an obligation: intent, offer, acceptance, consideration, mutuality of
agreement and obligation.
requisite elements of a contract, an agreement which creates an obligation: intent, offer,
acceptance, consideration, mutuality of agreement and obligation. Restatement of Contracts
19-24 (1932); Lamoureux v. Burrillville Racing Ass'n, 161 A.2d 213, 215 (R.I. 1960).
Thus, considering exclusively the language and the terms of the corporate minutes, I conclude
that there was an enforceable contract.
Considering the events and the conduct of Mr. Kern before his death, I am further
persuaded that ample evidence of an intent to be bound existed. Apparently, the learned trial
judge was likewise convinced. DorKay, Inc., took possession of and managed the ranch. The
corporation received income from the farming, grazing and oil operations of the ranch and
paid expenses associated with these operations. Furthermore, the corporation paid property
taxes on the ranch and listed the ranch as an asset in its 1988 corporate tax return. Moreover,
Mr. Kern instructed an accountant to establish and maintain separate books of account for the
corporation and retained an attorney to prepare the deeds in order to transfer the ranch to the
corporation.
All of these facts support one conclusion: Mr. Kern intended the transfer of the ranch,
treated the ranch as if it had been transferred, and directed an attorney to effect a formal
transfer. These facts comprise a prima facie case for part performance which obviates the
requirement that the agreement satisfy the statute of frauds. Hence, even if the corporate
minutes fail to satisfy the statute of frauds, the doctrine of part performance dispenses with
the requirements of the statute. See Summa Corp. v. Greenspun, 96 Nev. 247, 253, 607 P.2d
569, 572 (1980).
Turning to the issue of consideration, my brethren in the majority conclude that
consideration was lacking because the 2,500 shares of stock exchanged for the ranch were
worthless. This conclusion is flawed in two respects. First, it ignores the fact that the
corporation treated the ranch as its asset. When Mr. Kern entered into the contract, the
DorKay, Inc., stock had expectancy value resulting from the anticipated transfer of the ranch,
and, consequently, the corporate stock had value. Second, it fails to take into account that Mr.
Kern obviously wanted DorKay, Inc., and not himself, to own the ranch in question. Ms. Kern
testified at trial that Mr. Kern wanted to transfer ownership to the corporation because he
thought this arrangement would make it harder for his children to obtain the ranch. Our role is
not to pass judgment on the merits of Mr. Kern's reasons, but rather to review the legal issues
on appeal. The consideration to Mr. Kern, the owner of the ranch prior to the contract, was a
subsequent change in ownership of the ranch, in addition to the stock certificates.
Conveyance to Complete Contract (NRS 149.110)
The majority incorrectly determines that the elements of NRS 149.110 are not met because
Mr. Kern, if living, could not have been compelled to make the conveyance. On the contrary,
as an officer of the corporation, Ms. Kern could have brought an action on behalf of the
corporation compelling Mr. Kern to convey the ranch. Accordingly, I conclude that the
elements of NRS 149.110 are met.
Finally, I wish to note that, after an evidentiary hearing, the district court found that Mr.
Kern had the intent to complete the conveyance at the time of his death. It has long been
recognized that we will not disturb a trial court's findings of fact unless they are clearly
erroneous. Hermann v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 591-92
(1990); Pink v. Busch, 100 Nev. 684, 688, 691 P.2d 456, 459 (1984). As I stated above, there
exists ample evidence in the record to support the district court's findings of fact. I cannot join
with my brothers in their eager willingness to re-weigh the facts of this case and in essence to
perform the function of the trial court. Moreover, in doing so, the majority reaches a result
which, I submit, is contrary to the evidence.
For the foregoing reasons, I respectfully dissent.
____________
107 Nev. 995, 995 (1991) Truck Ins. Exchange v. SIIS
TRUCK INSURANCE EXCHANGE, Appellant, v. STATE INDUSTRIAL INSURANCE
SYSTEM, a Public Agency of The State of Nevada, Respondent.
No. 21840
December 30, 1991 823 P.2d 279
Appeal from a judgment granting subrogation of worker's compensation benefits against
uninsured motorist carrier. Eighth Judicial District Court, Clark County; Addeliar D. Guy, III,
Judge.
Employer's automobile insurer appealed from judgment of the district court allowing State
Industrial Insurance System (SIIS) to subrogate workers' compensation benefits paid to
employee against employer's underinsured motorist policy. The supreme court held that SIIS
was not entitled to subrogation.
Reversed.
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel F. Polsenberg, Las Vegas, for
Appellant.
Riley M. Beckett and Laurie A. Yott, Carson City, for Respondent.
State Industrial Insurance System (SIIS) was not entitled to subrogation against employer's underinsured motorist policy after
paying workers' compensation benefits to employee for work-related injuries. NRS 616.560, 616.560, subd. 1.
2. Insurance.
Offset provision in insurance policy which reduces insurance benefits by amount of workers' compensation benefits insured
receives from State Industrial System (SIIS) is valid.
OPINION
Per Curiam:
On November 4, 1986, Jericho DeGrave (DeGrave), an employee of Hanna-Epphrecht
Nissan, was injured while driving his employer's vehicle within the scope of his employment.
He received $7,105.26 from the State Industrial Insurance System (SIIS) in compensation for
his injuries. SIIS brought suit against Truck Insurance Exchange (TIE) for subrogation against
the uninsured/under-insured motorist (UM) proceeds available to DeGrave under his
employer's insurance policy. The district court granted judgment in favor of SIIS.
[Headnote 1]
TIE argues on appeal that SIIS is not entitled to subrogation against an employer's UM
policy. We agree.
NRS 616.560 grants subrogation rights to worker's compensation insurers. NRS 616.560
provides in relevant part:
Liability of third parties for damages; reduction of compensation; subrogation of
insurer to employee's rights; lien on proceeds of recovery; jury instructions.
1. When an employee coming under the provisions of this chapter receives an injury
for which compensation is payable under this chapter and which injury was caused
under circumstances creating a legal liability in some person . . . to pay damages in
respect thereof:
(a) The injured employee . . . may take proceedings against the person to recover
damages, but the amount of the compensation to which the injured employee or his
dependents are entitled under this chapter . . . must be reduced by the amount of the
damages recovered . . . .
(b) If the injured employee . . . receive[s] compensation under this chapter, the
insurer has a right of action against the person so liable to pay damages and is
subrogated to the rights of the injured employee . . . .
. . . .
2. In any case where the insurer is subrogated to the rights of the injured employee
or one of his dependents as provided in subsection 1, the insurer has a lien upon the
total proceeds of any recovery from some person other than the employer, whether
the proceeds of such recovery are by way of judgment, settlement or otherwise.
provided in subsection 1, the insurer has a lien upon the total proceeds of any recovery
from some person other than the employer, whether the proceeds of such recovery are
by way of judgment, settlement or otherwise. The injured employee, or in the case of his
death his dependents, are not entitled to double recovery for the same injury . . . .
(Emphasis added.) This court has considered whether subrogation is allowed against a UM
policy in Continental Casualty v. Riveras, 107 Nev. 530, 814 P.2d 1015 (1991). There, this
court questioned SIIS' authority to assert a lien against a UM insurance carrier. Id. at 532
n.2, 814 P.2d at 1017 n.2. We stated that NRS 616.560 subsection (1).
addressed SIIS's right of subrogation against a recovery obtained by the injured
employee against a third-party tortfeasor. The injured employee's entitlement to
coverage from his own insurance policy is based upon contract; therefore, SIIS is not
authorized to reduce worker's compensation benefits by the amount recovered under the
employee's policy.
Subsection (2) does allow SIIS to place liens upon the total proceeds recovered from
some person other than the employer. NRS 616.560(2). However, this subsection also
provides no basis for an assertion of the right by SIIS to impose a lien against the [UM]
payments. Subsection (2) only applies to those persons as provided in Subsection (1).
Because [the UM carrier] is not a tortfeasor, it does not fall within the purview of either
subsection (1) or (2).
Id. Riveras is the controlling authority for the case before us. A UM carrier is not a third-party
tortfeasor which owes a duty to SIIS. Here, Hanna-Epphrecht Nissan sought to protect its
employees by purchasing UM coverage. TIE, as the UM carrier, is not a third-party tortfeasor
against whom subrogation is allowed as contemplated by NRS 616.560. We hold that SIIS
may not subrogate against UM proceeds available to DeGrave through his employer's
insurance policy.
[Headnote 2]
The remaining issue in this case has also been settled by Riveras. There, we held that an
offset provision in the policy which reduces the insurance benefits by the amount the insured
receives from SIIS is valid. Riveras, 107 Nev. at 534, 814 P.2d at 1018. The goal of UM
coverage is to make the claimant whole. The offset clause prevents a double recovery by the
claimant.
Accordingly, the judgment of the district court is reversed.
____________
107 Nev. 998, 998 (1991) Paine v. State
FREDERICK LAVELLE PAINE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21983
December 30, 1991 823 P.2d 281
Appeal from a sentence of death imposed by a three-judge panel, resulting from a guilty
plea to one count of first-degree murder with use of a deadly weapon. Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge; Fifth Judicial District Court, Esmeralda,
Mineral & Nye Counties, William P. Beko, Judge; First Judicial District Court, Carson City;
Michael R. Griffin, Judge.
Defendant was convicted of capital murder in the district court. The sentence of death was
imposed by a three-judge panel. Appeal was taken. The supreme court held that: (1)
aggravating factor, that defendant had acted randomly and without apparent motive, was
established by evidence that he had killed taxi cab driver unnecessarily in order to complete
robbery, and (2) new sentencing hearing would be required, following evidence that one of
sentencing judges may have been inattentive during hearing.
Norman J. Reed and Nathaniel J. Reed, Las Vegas, for Appellant.
1. Homicide.
There was sufficient evidence to conclude that killing of taxi driver by capital murder defendant was not necessary to complete
robbery, so as to support aggravating circumstance that defendant had acted randomly and without apparent motive; upon arriving at
destination, defendant had shot driver two times in head from point blank range. NRS 200.033, subd. 9.
2. Criminal Law.
Remand was required for new sentencing hearing in capital murder case, following allegations of defendant that one of three
sentencing judges appeared to be inattentive during hearing; action was necessary to promote public confidence in integrity and
impartiality of judiciary. Code of Jud. Conduct, Canon 2, subd. A.
OPINION
Per Curiam:
Frederick Lavelle Paine (Paine) was charged with the robbery and murder of Las Vegas
cab driver Kenneth Marcum {"Marcum").
107 Nev. 998, 999 (1991) Paine v. State
bery and murder of Las Vegas cab driver Kenneth Marcum (Marcum). On the morning of
January 19, 1990, Paine and his partner, Marvin Doleman (Doleman), entered a cab driven
by Marcum at the Hotel Continental in Las Vegas. Upon arriving at their destination, Paine
shot Marcum two times in the head from point blank range. Paine and Doleman then robbed
Marcum of $45.00 and a wristwatch. Paine and Doleman then returned to the Hotel
Continental, where they were apprehended by Las Vegas Metropolitan Police later that day.
1
Paine ultimately pled guilty to all counts against him on August 17, 1990.
2

Paine's penalty hearing took place over a two-day period, beginning on October 15, 1990,
before a three-judge panel consisting of Judge Joseph S. Pavlikowski, Judge William P. Beko
and Judge Michael R. Griffin. At the conclusion of the hearing, following a ten minute
deliberation, the three-judge panel recommended that Paine be sentenced to death, finding
two aggravating circumstances and one mitigating circumstance.
3
Following the penalty
hearing, Paine brought a motion for an evidentiary hearing to determine whether he was
prejudiced by the alleged inattentiveness of panel member Judge Beko, who had been seen
closing his eyes at various times throughout the hearing. Paine's motion was denied. Paine
now maintains that he was denied a fair penalty hearing. Paine claims that the alleged
inattentiveness of Judge Beko and the short deliberation of the three-judge panel
demonstrates that the imposed sentence of death was motivated by prejudice. Paine also
contends that the three-judge panel erred in finding that the murder of Kenneth Marcum was
random and without motive.
[Headnote 1]
First, we hold that the three-judge panel did not err in finding that Paine acted randomly
and without apparent motive pursuant to NRS 200.033(9). We have previously concluded
that a killing may properly be found to be random and without apparent motive if the robbery
could have been completed without killing the victim. Bennett v. State, 106 Nev. 135, 143,
787 P.2d 797, 802 (1990) (citing Moran, 103 Nev. 138, 143, 734 P.2d 712, 714
__________

1
Doleman was subsequently found guilty by a jury and sentenced to death, which this court recently upheld
on appeal. See Doleman v. State, 107 Nev. 409, 812 P.2d 1287 (1991).

2
Paine pleaded guilty to the following: attempted murder with the use of a deadly weapon of Walker;
robbery with the use of a deadly weapon of Walker; first-degree murder of Marcum; and, robbery with the use of
a deadly weapon of Marcum.

3
The two aggravating circumstances were felony-murder, pursuant to NRS 200.033(4), and a random
commission of a murder without apparent motive, pursuant to NRS 200.033(9). The single mitigating
circumstance recognized was that Paine was nineteen years old at the time of the crime, pursuant to NRS
200.035(6).
107 Nev. 998, 1000 (1991) Paine v. State
(1987), cert. denied, 111 S.Ct. 307 (1990)). William Robert Walker, a Las Vegas cab driver
who miraculously survived a similar attack by Paine and Doleman on the evening of January
9, 1990, testified that he was shot three times in the head without any warning before Paine
and Doleman demanded any money.
4
Furthermore, Paine testified during the penalty hearing
that [t]here was no reason for me to even pull the trigger, you know, in either case.
Therefore, we reject Paine's argument as to this issue and hold that there was sufficient
evidence to conclude that the killing of Marcum was not necessary to complete the robbery.
[Headnote 2]
The next issue, involving the alleged inattentiveness of Judge Beko, is more troublesome
and complex.
5
Among Paine's witnesses was a local television news crew which videotaped
the proceedings and subsequently ran a story on the allegations against Judge Beko on the
evening news. The prosecution offered an affidavit in support of Judge Beko's attentiveness.
Judge Pavlikowski, the presiding judge in the case who was also a member of the three-judge
panel, denied Paine's motion based on his personal observations during the penalty hearing
and the subsequent deliberations of the three-judge panel.
6

The circumstances present this court with a no-win situation. If the case is remanded for
an evidentiary hearing on this issue, the questions concerning whether Judge Beko may have
slumbered on occasion cannot be completely answered because only Judge Beko knows the
answer. If we dismiss Paine's allegations, then the question of Judge Beko's alleged
inattentiveness will forever taint this case. In the news story which aired locally on this
matter, Judge Beko called Paine's allegations outrageous and explained that he has
cataracts, which make his eyes extra sensitive to the lighting in the courtroom.
The most difficult problem regarding Paine's allegations of Judge Beko's inattentiveness
is our concern with promoting "public confidence in the integrity and impartiality of the
judiciary."
__________

4
Just as they had done in the shooting of Marcum, Pine and Doleman had Walker drive them to a
pre-determined area. Upon arrival, Paine shot three bullets into Walker's head from point blank range, after
which Paine and Doleman demanded money and obtained $22.00.

5
Paine's counsel, having apparently witnessed Judge Beko's inattentiveness, made no effort to bring this
issue to the attention of the district court during the hearing by way of objection or otherwise. Nevertheless, this
court has held that the failure to contemporaneously object may not defeat an issue on appeal where a human life
lies in the balance. Flanagan v. State, 104 Nev. 105, 108, 754 P.2d 836, 837 (1988).

6
Judge Pavlikowski stated to Paine's defense counsel:
[A]fter we recessed we considered the penalty. Judge Beko was very alert. He put forth certain comments
on what the penalty should be and what it shouldn't be. And with that in mind I have no reason to believe
that Judge Beko was sleeping whatsoever. So, therefore, your motion for evidentiary hearing is denied.
107 Nev. 998, 1001 (1991) Paine v. State
Judge Beko's inattentiveness is our concern with promoting public confidence in the
integrity and impartiality of the judiciary. Nev. Code of Judicial Conduct Canon 2A (1977).
We must avoid even the appearance of prejudice in order to maintain the confidence of the
thinking public in the administration of justice.' In re Inquiry Concerning a Judge, 788 P.2d
716, 723 (Alaska 1990) (quoting In the Matter of Bonin, 378 N.E.2d 669, 682-683 (Mass.
1978)).
We have great difficulty concluding that Judge Beko was not attentive. At one point
during the hearing, Judge Beko requested a witness to speak louder and stated: It's very
important that we hear. Judge Beko was obviously concerned about hearing all of the
testimony presented before the three-judge panel and, certainly, the closing of his eyes did not
necessitate the closing of his ears. Nevertheless, we doubt that an evidentiary hearing at this
time would bring this issue to a satisfactory conclusion.
Therefore, we conclude that Paine's death sentence must be vacated and this case
remanded for a new sentencing hearing before a panel of three new judges. In so holding, we
do not impute any wrongdoing on the part of Judge Beko. Instead, we are reluctantly
exercising an abundance of caution in an effort to resolve this matter equitably. The
circumstances surrounding this issue are extraordinary. Consequently, our holding today will
not be expanded beyond these extraordinary circumstances. Had an evidentiary hearing been
held immediately after the penalty hearing, we may have arrived at a different result.
We have considered Paine's other arguments on appeal, including his claim of prejudice
resulting from the ten minute deliberation of the three-judge panel, and conclude that they
lack merit. Accordingly, we vacate the sentence of death imposed by the district court, and we
remand this matter to the district court for a new penalty hearing by a three-judge panel.
____________
107 Nev. 1001, 1001 (1991) D'Agostino v. State
FRANK SALVATORE D'AGOSTINO, aka FRANK CARUSO, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 21861
December 30, 1991 823 P.2d 283
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first
degree murder with use of a deadly weapon, one count of robbery with use of a deadly
weapon, and one count of first degree arson and from a sentence of death. Eighth Judicial
District Court, Clark County; Jack Lehman, Judge.
Defendant was convicted in the district court of first degree murder with the use of a
deadly weapon, robbery with the use of a deadly weapon and first degree arson, and
sentenced to death. Defendant appealed. The supreme court held that: (1) issues raised with
respect to guilt phase lacked merit, but (2) penalty hearing was contaminated by testimony of
fellow prisoner of defendant that defendant had admitted to him several unrelated killings.
Affirmed in part; reversed in part and remanded.
[Rehearing denied March 3, 1992]
Morgan D. Harris, Public Defender and Thomas W. Rigsby and Stephen J. Dahl, Deputy
Public Defenders, Clark County, for Appellant.
James Tufteland, Chief Deputy District Attorney and Robert L. Langford, Deputy District
Attorney, Clark County for Respondent.
1. Homicide.
Penalty hearing in capital murder case was contaminated by testimony of fellow prisoner of defendant that defendant had admitted
to him several unrelated killings; absent any details as to time, place and victim, these unverifiable accusations prejudiced defendant.
2. Homicide.
Testimony in penalty hearing relating to supposed admissions by convict as to past homicidal criminal conduct may not be heard
by the jury unless trial judge first determines that details of the admissions supply sufficient indicia of reliability or there is some
credible evidence other than admission itself to justify conclusion that inmate committed crimes which are the subject of the
admission.
OPINION
Per Curiam:
This case involves the robbery and murder of a woman in Las Vegas. Appellant, Frank
D'Agostino, was convicted of the murder and sentenced to death by a jury. Appellant raises
numerous issues on appeal, challenging both his conviction and sentence of death.
With respect to the guilt phase of his trial, appellant raises many issues. Upon a thorough
review of those issues we conclude that each of appellant's contentions lacks merit.
Accordingly, we affirm appellant's convictions. We do, however, find error with respect to
appellant's penalty hearing. Thus, we reverse appellant's sentence of death and remand the
case to the district court for a new penalty hearing.
[Headnote 1]
The penalty hearing was contaminated by the testimony of one Michael Gaines, a prisoner
who shared a cell with D'Agostino. The prosecution called Gaines as a witness to testify, over
objection, that D'Agostino had admitted to Gaines several killings unrelated to the present
case. According to Gaines' testimony, D'Agostino, while Gaines and D'Agostino were in jail,
admitted killing some unidentified man at some unspecified time and place in New York.
Gaines also testified that D'Agostino told him, while they were jailmates, that D'Agostino cut
a woman's throat and threw her body off a cruise ship.
There is, of course, no way that D'Agostino could have defended himself against these
kinds of unverifiable accusations. Gaines might just as well have told the jury that D'Agostino
had admitted to him a number of serial, chain-saw massacres. Absent any details as to time,
place and victim, an accused who must face this kind of incriminating testimony is seriously
and unfairly prejudiced when the jury comes together to deliberate as to whether he should
live or die.
By reason of Gaines' testimony, D'Agostino went before the penalty jury as a two-time
murderer. A legally unsophisticated jury has little knowledge as to the types of pressures and
inducements that jail inmates are under to cooperate with the state and to say anything that
is helpful to the state's case. It is up to the trial judge to see that there are sufficient
assurances of reliability prior to admitting the kind of amorphous testimony presented to keep
this kind of unreliable evidence out of the hands of the jury, especially when the supposedly
admitted crimes of the accused cannot be reasonably described in terms of where, when,
against whom (other than some old man in New York) and the circumstances under which
the crimes were committed. More and more frequently, it seems, we are confronted with
cases in which a jailbird comes forward to testify that the accused admitted to him that he not
only committed the crime that he is accused of but also several other assorted crimes. We
think it is time that this practice is examined more carefully.
We are not suggesting any impropriety or collusions on the part of prosecutors; but, it
appears to us that a jail-house incrimination is now available in a fairly large number of
homicide cases. Some limitations ought to be placed on this practice. Protections against this
kind of unreliable evidence are afforded by our case law relating to proof of other crimes,
1
but it should be remembered that in death cases the proof of other crimes is intended not to
show the guilt of the accused but, rather, to display the character of the convict and to show
culpability and just deserts on the party of the homicidal convict.
__________

1
See Berner v. State, 104 Nev. 695, 765 P.2d 1144 (1988); Shults v. State, 96 Nev. 742, 616 P.2d 388
(1980).
character of the convict and to show culpability and just deserts on the party of the homicidal
convict. Past criminal activity is one of the most critical factors in the process of assessing
punishment, for whatever purpose punishment might be inflicted. Past misconduct relates to
the criminal's blameworthiness for the charged homicide and relates, as well, to whether the
jury deems it necessary for public safety to impose an irrevocable, permanent quarantine upon
the murderer. The point is that past homicidal conduct of the subject of a death penalty
hearing goes to the very heart of the jury's decision-making process. Improperly admitted
evidence of past criminal conduct is even more damaging in a penalty hearing than it is in a
guilt-determining proceeding because the past conduct goes to the substance of whether the
murder should or should not be punished by death.
While past murders are relevant, even vital, to the penalty hearing when properly called to
the jury's attention, unreliability demonstrated past killings are harmful in the extreme and
simply cannot be overlooked by a reviewing court.
[Headnote 2]
Based on the foregoing considerations, we now hold that testimony in a penalty hearing
relating to supposed admissions by the convict as to past homicidal criminal conduct may not
be heard by the jury unless the trial judge first determines that the details of the admissions
supply a sufficient indicia of reliability or there is some credible evidence other than the
admission itself to justify the conclusion that the convict committed the crimes which are the
subject of the admission. Absent either criteria in the instant penalty hearing, we reverse the
judgment of execution and remand to the trial court for a new penalty hearing.
____________
107 Nev. 1004, 1004 (1991) Falline v. GNLV Corp.
NORMAN FALLINE and SHARON FALLINE, Appellants, v. GNLV CORP., a Nevada
corporation dba GOLDEN NUGGET HOTEL & CASINO, GIBBENS COMPANY,
INC., a Nevada corporation, Respondents.
No. 20549
December 31, 1991 823 P.2d 888
Appeal from judgment on the pleadings and an order granting motion to dismiss. Eighth
Worker and his wife sought to maintain common-law tort actions against self-insured
employer and plan administrator for delay in payment of workmen's compensation
benefits.
delay in payment of workmen's compensation benefits. Claims were dismissed by the district
court and plaintiffs appealed. The supreme court, Steffen, J., held that: (1) cause of action
may be maintained against self-insured employer and plan administrator or agent for
negligent or bad faith delay in payment of workmen's compensation benefits; (2) punitive
damages are precluded in such an action; (3) self-insured employers and administrators or
agents are liable for negligent claims processing only to extent such processing constitutes
what would properly be classified as operational decision if made within State Industrial
Insurance System, but if failure or refusal to timely process or pay claims is attributable to
bad faith, immunity does not apply whether act is discretionary or not; and (4) cause of action
for intentional infliction of emotional distress could not be maintained.
Reversed in part, affirmed in part and remanded.
Young, J., and Mowbray, C. J., dissented in part; Springer, J., dissented.
Greenman, Goldberg, Raby & Martinez, Las Vegas, for Appellants.
Respondent Gibbens Company, Inc.
Hunterton & Naylor and Cindy Lee Stock, Las Vegas, for Respondent GNLV Corp.
Badger & Baker, Carson City, for Amicus Curiae.
Cause of action can be maintained against self-insured employers and administrators of self-insured plans for negligent or bad
faith delay in payment of workmen's compensation benefits. NRS 616.272, subd. 2.
Punitive damages are precluded in action against self-insured employers and their plan administrators or agents for negligent or
bad faith delay in payment of workmen's compensation benefits.
Self-insured employers and their plan administrators or agents are liable for negligent claims processing only to extent that such
processing constitutes what would properly be classified as an operational decision if made within the State Industrial Insurance
System, but if failure or refusal to timely process or pay claims is attributable to bad faith, immunity does not apply whether act is
discretionary or not.
4. States.
Abuse of discretion within statute providing immunity to state agencies, officers and employers with respect to discretionary
acts, whether or not abused, involves at least two factors: authority to exercise judgment or discretion in acting or refusing
to act on given matters; and lack of justification for the act or inaction decided upon, and thus occurs
within the circumference of authority, while "bad faith" involves an implemented attitude that completely
transcends the circumference of authority granted the individual or entity.
cise judgment or discretion in acting or refusing to act on given matters; and lack of justification for the act or inaction decided upon,
and thus occurs within the circumference of authority, while bad faith involves an implemented attitude that completely transcends
the circumference of authority granted the individual or entity. NRS 41.032, subd. 2.
Legislative scheme from sanctioning self-insurers who violate their obligations to injured workers, together with interest, costs and
attorney fees, does not constitute exclusive remedy so as to preclude action against self-insured employers or their plan administrators
or agents for negligent or bad faith delay in payment of workmen's compensation benefits. NRS 616.294, 616.647.
Any action seeking tort damages against self-insured employer or its plan administrator or agent for negligent or bad faith delay in
payment of workmen's compensation benefits will be subject to a $50,000 total recovery limit, exclusive of interest computed from the
date of judgment. NRS 41.035, subd. 1.
Cause of action for international infliction of emotional distress could not be maintained against self-employed insurer or plan
administrator for delay in paying workmen's compensation benefits.
8. Damages.
Emotional distress is more appropriately treated as an element of damage in common-law negligence action by claimant against
self-insured employer for delay in failure to timely pay workmen's compensation benefits, rather than a cause of action in itself.
OPINION
By the Court, Steffen, J.
Appellants Norman and Sharon Falline sought to maintain common law or private causes
of action against respondents GNLV Corporation (Golden Nugget), a self-insured employer,
and Gibbens Company, Inc. (Gibbens), the administrator of Golden Nugget's self-insured
plan. The causes of action included claims for negligence and bad faith in the processing and
payment of claims, intentional and negligent infliction of emotional distress, unfair insurance
practices, and other claims which will not be specifically addressed in this opinion. We
conclude that the district court erred in dismissing two of appellants' claims, and therefore
reverse and remand as to those claims.
1

At the age of twenty-five, appellant Norman Falline (Falline) injured his back while
working as a maintenance laborer at the Golden Nugget. The injury eventually required
surgery. Approximately ten weeks after surgery, Falline experienced severe pain in his lower
back as he arose from a sitting position.
__________

1
All of appellants' causes of action were dismissed with the exception of their claim for wrongful
termination which is still pending below.
in his lower back as he arose from a sitting position. An examining physician determined that
there was no new injury and concluded that Falline's initial surgery left him prone to reinjury.
The physician recommended treatment for the acute problem and determined that Falline was
temporarily totally disabled. Based upon the physician's findings and recommendations,
Falline sought to have his claim reopened. Despite the doctor's report, Gibbens and the
Golden Nugget denied further liability, stating that Falline had suffered an intervening injury.
Falline appealed respondents' rejection of his claim to a hearing officer, who ruled in favor
of reopening the claim and paying benefits. Respondents thereafter appealed to an appeals
officer who also ruled in Falline's favor. Subsequently, respondents sought judicial review,
but the district court upheld the decision of the appeals officer and ordered the insurer to pay
both accident and compensation benefits. Respondents' appeal to this court was dismissed by
order filed on June 26, 1986. Stay orders sought by respondents from the district court and
this court were also denied.
After Falline was released to return to work, his employment was terminated about three
months later. Rehabilitation benefits were subsequently refused by respondents, despite a
hearing officer twice ruling that Falline was entitled to such benefits.
[Headnotes 1, 2]
Appellants first contend that the district court erred in dismissing their cause of action for
the negligent or bad faith delay in the payment of workmen's compensation benefits. We
agree. In our recent opinion in Northern Nev. Ass'n of Injured Workers v. Nevada State
Indus. Ins. Sys., 107 Nev. 108, 807 P.2d 728 (1991), we reaffirmed our ruling in Rush v.
Nevada Industrial Commission, 94 Nev. 403, 580 P.2d 952 (1978), holding that a claimant
could maintain a cause of action against the State Industrial Insurance System (SIIS) under a
common law negligence theory because SIIS was a third party separate and apart from the
employer. We now conclude that there is no rational basis for permitting such an action
against SIIS, which is funded by contributions from employers, and denying the same right of
action against administrators of self-insured plans which are also funded by employers. In
both instances, administrators are obligated to promptly, fairly, and in good faith, process
and pay where warranted, compensation benefits to injured workers. Moreover, it makes no
difference whether a self-insured plan is administered by the self-insured employer or an
agent employed for that purpose. Although Nevada law (NRS 616.2947) imposes liability on
a self-insured employer for penalties resulting from the derelictions of the
administrator/agent, there is no sound reason why a self-insured employer should not be
liable for damages resulting from the negligent or bad faith administration of the
self-insured plan by the administratorJagent.
a self-insured employer should not be liable for damages resulting from the negligent or bad
faith administration of the self-insured plan by the administrator/agent. There are cogent
reasons for concluding that such liability would not constitute an erosion of the employer's
immunity from common law liability for work-related injuries under NRS 616.272(2). First,
the basis for liability is not the industrial injury upon which the workmen's compensation
claim is based, but rather the negligent or bad faith failure or refusal to timely pay the
compensation due. Second, the self-insured employer who relies on a fair, efficient, and
lawful administration of the self-insured plan by an administrator/agent, and suffers damage
by the latter's breach of duty, may seek indemnification from the administrator/agent for such
damages assessed against the self-insured employer. See, e.g., Salt Lake City School District
v. Galbraith & Green, Inc., 740 P.2d 284 (Utah Ct.App. 1987). Third, it would unfairly
discriminate against employees of a self-insured employer to disallow an action for damages
resulting from the negligent or bad faith failure or refusal to timely pay compensation
entitlements while allowing a similar action against SIIS by employees of employers who are
not self-insured.
2

Although Falline properly exhausted his administrative remedies, the record reflects that
while administrative and judicial remedies were pursued, he was denied compensation
benefits during two intervals that were each approximately six months in duration. During
these periods, Falline claims that he and his wife were forced to borrow money, sell their
automobile and request the help of relatives.
Our case law strongly emphasizes that one of the obligations of a self-insurer is the
prompt payment of benefits, and if payment is determined to be unwarranted, the self-insurer
must seek reimbursement of benefits it paid. Imperial Palace v. Dawson, 102 Nev. 88, 92,
715 P.2d 1318, 1320 (1986) (quoting Dep't Ind. Relations v. Circus Circus, 101 Nev. 405,
411-12, 705 P.2d 645, 649 (1985)). Under our rulings, respondents' vexatious and dilatory
withholding of Falline's compensation cannot be condoned. Nevertheless, there is another
consideration that must be addressed in determining whether Falline has
__________

2
By a parity of reasoning, it would be equally discriminatory against self-insured employers to permit
injured workers to seek punitive damages against the self-insured employer or its administrator/agent when we
have expressly disallowed such damages in actions against SIIS and its employees. See Northern Nev. Ass'n of
Injured Workers, 107 Nev. at 111, 807 P.2d at 730 n.5, (citing Rush v. Nevada Indus. Comm'n, 94 Nev. 403,
580 P.2d 952 n.5 (1978)), for its holding that punitive damages are unavailable in actions involving negligent or
malicious claims processing. Punitive damages are therefore precluded in this type of action against self-insured
employers and their administrators/agents.
addressed in determining whether Falline has a right of action against respondents.
[Headnote 3]
Our ruling in Northern Nev. Ass'n of Injured Workers, supra, recognized that under
Nevada law, NRS 41.032, the liability of SIIS and its employees for negligent acts is limited
to acts that are of an operational, rather than discretionary, nature. Although statutory
immunity for discretionary acts is accorded only to governmental agencies and employees, we
have determined that a denial of such immunity to self-insured employers and their
administrators/agents would constitute an unwarranted, discriminatory source of liability
against the latter. We therefore hold that self-insured employers and their
administrators/agents are liable for negligent claims processing only to the extent that such
processing constitutes what would be properly classified as an operational decision if made
within the State Industrial Insurance System. In that connection, however, we also hold that if
failure or refusal to timely process or pay claims is attributable to bad faith, immunity does
not apply whether an act is discretionary or not.
[Headnote 4]
Bad faith, the converse of good faith, has been defined as the absence of a reasonable
basis for denying benefits . . . and the defendant's knowledge or reckless disregard of the lack
of a reasonable basis for denying the claim. Franks v. United States Fidelity & Guar. Co.,
718 P.2d 193, 197 (Ariz.Ct.App. 1985) (quoting Noble v. National Am. Life Ins. Co., 624
P.2d 866 (1981); Anderson v. Continental Ins. Co., 271 N.W.2d 368 (Wis. 1978)); 2A A.
Larson, The Law of Workmen's Compensation 68.34(c) at 13-144 (1987 & Supp. 1990).
Neither SIIS nor a self-insured employer or its administrator/agent has discretion to act in bad
faith, i.e., without a reasonable basis or with knowledge or reckless disregard of the lack of a
reasonable basis in the processing or denial of claims. It follows, therefore, that any act
involving the processing of claims committed or performed in bad faith cannot, by definition,
be within the actor's discretion.
3
[Headnote 5]
[Headnote 5]
__________

3
We realize that NRS 41.032(2) provides immunity to contractors, officers, employees, agencies and
political subdivisions of the State for the performance or non-performance of discretionary acts whether or not
the discretion involved is abused. (Emphasis supplied.) However, an abuse of discretion necessarily involves at
least two factors: (1) the authority to exercise judgment or discretion in acting or refusing to act on a given
matter; and (2) a lack of justification for the act or inaction decided upon. Bad faith, on the other hand, involves
an implemented attitude that completely transcends the circumference of authority granted the individual or
entity. In
[Headnote 5]
Respondents contend that the legislative scheme for sanctioning self-insurers who violate
their obligations to injured workers, coupled with the availability of additional sanctions
imposed by the judiciary in the form of interest, costs and attorney's fees, constitute an
exclusive remedy. It is true that NRS 616.294
4
and NRS 616.647
5
provide a basis for
modest monetary penalties or even a withdrawal of certification that may be invoked against a
self-insurer who fails or refuses to comply with the law. Unfortunately, however, with the
exception of the limited benefit an aggrieved claimant may receive as a result of judicial
sanctions imposed against a self-insurer, the modest administrative fines that may be assessed
provide no financial relief to claimants.
__________
other words, an abuse of discretion occurs within the circumference of authority, and an act or omission of bad
faith occurs outside the circumference of authority. Stated otherwise, an abuse of discretion is characterized by
an application of unreasonable judgment to a decision that is within the actor's rightful prerogatives, whereas an
act of bad faith has no relationship to a rightful prerogative even if the result is ostensibly within the actor's
ambit of authority. For example, if an administrator decides to delay or deny a claimant's benefits because of a
personal dislike for the claimant, the delay or denial would be attributable to an unauthorized act of bad faith
despite the fact that a denial or delay could be otherwise among the rightful prerogatives of the administrator.
See Crosby v. SAIF, 699 P.2d 198 (Or.App. 1985) (holding that State Accident Insurance Fund's conspiring with
employer to eliminate a worker's entitlement to benefits is not a matter of discretion).

4
1. The commissioner may impose an administrative fine, not to exceed $500 for each violation, and
may withdraw the certification of a self-insured employer if:
. . . .
(c) The employer intentionally fails to comply with regulations of the commissioner regarding reports
or other requirements necessary to carry out the purposes of this chapter. . . .

5
NRS 616.647 states in relevant part that:
1. If the administrator has reason to believe that an insurer or employer has:
. . . .
(e) Refused to pay or unreasonably delayed payment to a claimant of compensation found to be due
him by a hearing officer or appeals officer;
(f) Made it necessary for a claimant to resort to proceedings against the employer or insurer for
compensation found to be due him by a hearing officer or appeals officer;
(g) Failed to comply with regulations of the department for the acceptance and rejection of claims,
determination and calculation of a claimant's average monthly wage, determination and payment of
compensation, delivery of accident benefits and reporting relating to these matters. . . .
. . . .
the administrator shall set a date for a hearing. The date must be no
In Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984), we recognized a public policy
exception to the at-will employment doctrine in instances where employees are terminated in
retaliation for the filing of workmen's compensation claims. As a result, we concluded that
aggrieved workers thus terminated were entitled to pursue a tort cause of action against their
self-insured employers. If, in Harrah's, we had been receptive to the argument asserted by
respondents in the instant case, we would have declared the statutorily provided
administrative fines to be an exclusive remedy. Indeed, NRS 616.647(1)(a) and (2)(c) provide
for an administrative fine of [n]ot more than $1,000 for inducing a claimant not to report an
accidental injury or an occupational disease. Thus, within the context of the Harrah's
situation, if an employer were to induce an injured employee not to file an industrial accident
claim under threat of termination, the statutory remedy for the wrongful inducement would be
a maximum administrative fine of $1,000. The aggrieved employee would have received
nothing by way of financial relief for his wrongful discharge. Similarly, if a self-insured
employer were to fail to accept or pay a valid claim for workmen's compensation, the
statutory remedy under NRS 616.647(1)(g), (2)(a) and (2)(b) would be a maximum fine of
$100 if unintentional or a maximum of $1,000 if intentional. We are unwilling to expose
Nevada's injured workmen to such a hollow and illusory form of relief. If the Legislature sees
fit to declare the statutory scheme of fines an exclusive remedy to aggrieved workmen whose
claims are denied or delayed as a result of negligence or bad faith, the Legislature may enact
legislation to that end.
In Harrah's we noted that Nevada's workmen's compensation laws reflect a clear public
policy favoring economic security for employees injured while in the course of their
employment. It has been a long-standing policy of this Court to liberally construe such laws
to protect injured workers and their families."
__________
sooner than 30 days after notice is served upon the insurer or employer of the alleged action and the time
and place of the hearing.
2. If, after an evidentiary hearing, the administrator determines that the insurer or employer has
committed the alleged act, the administrator may impose an administrative fine of:
(a) Not more that $100 for each act in violation of paragraph (g) of subsection 1 which was not
intentional;
(b) Not more than $1,000 for each intentional or repeated act in violation of paragraph (g) of
subsection 1; or
. . . .
5. The commissioner may withdraw the certification of a self-insured employer if, after a hearing, it
is shown that the self-insured employer:
(a) Intentionally or repeatedly committed any of the acts enumerated in paragraph (g) of subsection 1;
or
(b) Committed any acts in violation of any other provisions of subsection 1.
such laws to protect injured workers and their families. Harrah's, 100 Nev. at 63, 675 P.2d
at 396.
[Headnote 6]
Consonant with our prior rulings, we hold that an employee who has suffered damage as a
result of the negligent or bad faith failure or refusal by a self-insured employer or its
administrator/agent, to process and timely pay claims properly asserted under the Nevada
Industrial Insurance Act (NRS 616) may pursue a tort action in accordance with the
limitations set forth in this opinion.
6

We are aware of the contrary position taken by a number of other courts and commentators
who have concluded that a legislative scheme of administrative fines is the exclusive remedy
for injured workmen who have been aggrieved by the bad faith or negligence of a self-insured
employer in the processing and payment of claims for compensation. See Phillips v. Crawford
& Co., 248 Cal.Rptr. 371, 373 (Cal.Ct.App. 1988);
7
2A A. Larson, The Law of Workmen's
Compensation 68.34(c) at 13-146 (1990) (citations omitted). However, we are not
persuaded by the contrary view because although administrative fines
__________

6
In order to achieve fairness and parity in causes of action asserted against SIIS, its officers and employees
on the one hand, and self-insured employers, their administrators/agents on the other, it is necessary to recognize
that the former enjoys the benefit of a $50,000 recovery limit provided by NRS 41.035(1). Consequently, any
action seeking tort damages against a self-insured employer or its administrator/agent shall also be subject to a
total recovery limit of $50,000 exclusive of interest computed from the date of judgment. Although self-insured
employers may derive pecuniary benefits by their self-insured status, they also confer benefits on the heavily
congested State Industrial Insurance System by saving the System the administrative burdens associated with the
processing of claims presented under self-insured programs.

7
See also, Bright v. Nimmo, 320 S.E.2d 365, 368 (Ga. 1984) (adverse financial consequences from the
intentional delay of workers' compensation payments does not give rise to an independent cause of action against
the employer or its insurer where penalties for such delay are provided by the act); Hormann v. New Hampshire
Ins. Co., 689 P.2d 837, 844 (Kan. 1984) (the worker's exclusive remedy where an insurer intentionally refuses to
pay compensation prior to an award is contained in the Act and allowing independent common-law actions
would circumvent the intent of the legislature and the Act); Dickson v. Mountain States Mut. Casualty Co., 650
P.2d 1, 2-3 (N.M. 1982) (express remedies provided by the Act are the sole and exclusive remedies available to
an employee for claims against his employer or insurer); Hall v. C & P Tel. Co., 809 F.2d 924, 926 (D.C.Cir.
1984) (recognizing a cause of action for intentional bad faith refusal to make timely compensation payments
when the act provides for a specific remedy would unravel the legislated compromise between the interests of
employees and the concerns of employers); Garrett v. Washington Air Compressor Co., Inc., 466 A.2d 462, 464
(D.C. 1983) (Longshoremen's and Harbor Workers' Compensation Act provides a specific remedy for tardiness
in making payments and appellant's remedy was to seek an administrative fine under the Act).
contrary view because although administrative fines may have some deterrent effect on
self-insured employers, they do not purport to address the plight of the injured worker who
may suffer great deprivation as a result of the tortious denial or delay of his or her benefits.
The availability of tort damages under the restrictions provided in this opinion should serve
the salutary purposes of worker relief and employer compliance.
[Headnote 7]
Appellants also contend that the district court erred in dismissing their cause of action for
intentional infliction of emotional distress. We disagree. The synonym for this particular
cause of action is the tort of outrage. We have previously held, in Star v. Rabello, 97 Nev.
124, 625 P.2d 90 (1981), that one of the elements of this tort is extreme and outrageous
conduct. Id. at 125, 625 P.2d at 91-92. Moreover, we have inferred that malicious intent is
a descriptive aspect of the tort of outrage. See Branda v. Sanford, 97 Nev. 643, 648, 637 P.2d
1223, 1227 (1981). In short, this particular tort would, at least in many instances, embrace
conduct that would support a claim for punitive damages and we have held that such damages
are unavailable in the type of action presented by the instant case. Moreover, recognizing a
cause of action for emotional distress in the workmen's compensation context raises the
specter of almost every emotion-based case turning up as some kind of tort suit. 2A A.
Larson, The Law of Workmen's Compensation 68.34(a) at 13-116 (1987 & Supp. 1990).
Finally, the Legislature has established the degree to which self-insurers should be punished
for conduct of the type here present by imposing administrative fines in specific maximum
amounts.
[Headnote 8]
Appellants also urge us to recognize a discrete cause of action for the negligent infliction
of emotional distress. We have not as yet had occasion to consider this particular tort within
the context of claims involving the tortious delay or denial of claims for workmen's
compensation, and do not consider it wise to do so. Moreover, because the key element for
liability in such an action is negligence, and we have already determined that, under the
circumstances alleged here, a common law negligence action is available to workers
employed by self-insured employers, emotional distress is more appropriately treated as an
element of damage in such causes of action rather than a cause of action itself.
Finally, appellants argue that NRS 686A.310, which enumerates unfair insurance
practices, gave rise to a private cause of action even prior to its 1987 amendment. On this
record, we are not prepared to agree. It is at least doubtful that chapter 686A applies to
self-insurers in the workmen's compensation system.
applies to self-insurers in the workmen's compensation system. In any event, given our
disposition of this appeal we decline to address the issue, including the retrospective
application of the statute as urged by appellants.
We have fully examined appellants' remaining issues and conclude that they are without
merit. For the reasons stated above, we hold that the trial court erred in dismissing appellants'
negligence and bad faith claims, and therefore reverse the lower court's judgment as to those
claims; in all other respects the judgment below is affirmed.
Rose, J., concurs.
Young, J., with whom Mowbray, C. J., agrees, concurring in part and dissenting in part:
I concur with the court's opinion to restore appellant's actions for negligence and bad faith.
I disagree with the conclusion of the majority to permit liability only on operational
decisions and its conclusion that punitive damages are unavailable to appellant.
Under the banner of what is termed a parity of reasoning, the majority states [w]e
therefore hold that self-insured employers and their administrators/agents are liable to
negligent claims processing only to the extent that such processing constitutes what would be
properly classified as an operational decision if made within the State Industrial Insurance
System. In response thereto, it is respectfully submitted that the limitation on liability for the
State Industrial Insurance System originates in NRS 41.032.
1
The attempt in the majority
opinion to provide the same protection to the self-insurer purports to give the self-insured
employer the same protection accorded the State Industrial Insurance System and other state
agencies by statute. The majority opinion is clearly judicial legislation.
__________

1
NRS 41.032 states:
Conditions and limitations on actions: Acts and omission of officers, employees and immune
contractors. Except as provided in NRS 278.0233 no action may be brought under NRS 41.031 or against
an immune contractor or an officer or employee of the state or any of its agencies or political
subdivisions which is:
1. Based upon an act or omission of an officer, employee or immune contractor, exercising due care,
in the execution of a statute or regulation, whether or not such statute or regulation is valid, if the statute
or regulation has not been declared invalid by a court of competent jurisdiction; or
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of the state or any of its agencies or political subdivisions or of any officer,
employee or immune contractor of any of these, whether or not the discretion involved is abused.
Also, under the aegis of fairness, the majority opinion seeks to limit punitive damages
against self-insured employers. As authority, it cites Rush v. Nevada Industrial Commission,
94 Nev. 403, 580 P.2d 952 (1978), for its holding that punitive damages are unavailable in
actions involving negligent or malicious claims processing against the State Industrial
Insurance System. An examination of Rush indicates that the holding was predicated on NRS
41.035.
2
Clearly, the immunity offered by NRS 41.035 was only for the benefit of public
entities and should not be construed by our court to apply to self-insured private employers.
While the goal of the majority is fairness, it seeks to reach this end by flagrant judicial
legislation. The legislature is presumed to have known the law when enacting the measure to
allow self-insurers. It is not the function of this court to fill in what may now, in our wisdom,
appear to be legislative oversight. If, indeed, this is a problem, the remedy is not for use to
change the law by judicial fiat but for the legislature to address this problem in the next
session.
For the reasons stated above, I dissent from the majority opinion which, by judicial
overreach, would provide to private employers certain immunities which the legislature has
specifically made available only to governmental agencies.
Each of the plurality opinions would reverse the judgment of the trial court and restore
Falline's tort actions. I cannot agree with either opinion; I think the judgment of the trial court
should be affirmed.
I would affirm because I believe that Falline has not properly stated any tort claims in his
pleading. This being so, I see no purpose in taking a position on the differences of opinion
expressed in the two plurality opinions. These issues, in my opinion, will not be ripe for
consideration unless and until the pleading is put in proper order.
As indicated, I dissent from the majority's restoration of Falline's negligence and bad faith
claims because in my view Falline's amended complaint does not state a claim upon which
legal relief can be granted.
__________

2
1. An award for damages in an action sounding in tort brought under NRS 41.031 or against a present
or former officer of employee of the state or any political subdivision, immune contractor or state
legislator arising out of an act or omission within the scope of his public duties or employment may not
exceed the sum of $50,000, exclusive of interest computed from the date of judgment, to or for the
benefit of any claimant. An award may not include any amount as exemplary or punitive damages.
The first difficulty that I have with Falline's pleading is that although Gibbens is described
as an agent of GNLV, there is no imputation as to how the principal and agent are involved in
the tortious conduct alluded to in the complaint. The charging allegation refers generally to
defendants; and, although it appears from a reading of the record that Falline is trying to
accuse Gibbens of tortious misconduct and to charge GNLV as a principal under the doctrine
of respondeat superior, this is anything but clear in the amended complaint.
The thrust of Gibbens' position is more clearly manifested in one of its legal
memorandums: Gibbens Company, Inc. administers the claims and makes the determination
of when benefits are paid or not to be paid. Gibbens, then, is an agent of the employer
[GNLV] for the purposes of determining whether or not the employer is obligated to pay any
benefits and if so, in what amount. Mottola v. R. L. Kantz & Co., 199 Cal. App.3d 98, 108,
244 Cal.Rptr. 737, 742 (1988). The negligence or bad faith charged in this case was
necessarily committed by Gibbens in the process of making the determination of when
benefits are paid or not to be paid. Falline charges that in making this determination
Gibbens
1
not only acted negligently, grossly negligently, carelessly, willfully and
maliciously, the claims administrator also breach[ed] the obligation of good faith and fair
dealing by a negligent and intentional failure to pay benefits when due. I would not permit
negligent or intentional tort actions in this case to proceed on the present pleading because the
capacities of the parties are so ill-defined as to give the defendants inadequate notice of the
nature of the action against them.
Sufficiency of the Negligence Claim for Relief
It does not appear to me that Falline has stated a negligence claim against Gibbens.
Ordinarily the making of administrative decisions such as granting or refusing industrial
accident claims does not result in tort liability. These decisions are discretionary in nature and
do not involve the type of activity out of which negligence claims ordinarily arise. The
exception to this rule is found in the case of Rush v. Nevada Industrial Commission, 94 Nev.
403, 580 P.2d 952 (1978), in which a claim for negligent decision-making was allowed
when the Nevada Industrial Commission {predecessor to SIIS) negligently delayed claims
processing in such a way as to cause a claimant to lose his eye.2
__________

1
Although Falline's charging allegations refer to defendants, it is clear from a reading of the record that
the allegedly negligent conduct complained of is that of Gibbens as administrator and decision-maker and that
any liability on the part of GNLV is vicarious and necessarily arises solely out of its capacity as a principal. My
reading of the record does not reveal that GNLV took an active part in turning down Falline's claim but, rather,
that it was merely following and adopting the administrative decisions of the Gibbens Company. It does not
appear to me from the record in this case that GNLV acted in a manner that could be properly termed negligent
or in bad faith.
decision-making was allowed when the Nevada Industrial Commission (predecessor to SIIS)
negligently delayed claims processing in such a way as to cause a claimant to lose his eye.
2

There is no averment of facts in the amended complaint that would disclose or give any
hint as to what negligent conduct Gibbens might be charged with doing. The claim of
negligence is simply that Gibbens was somehow guilty of a negligent refusal to pay Falline.
The plaintiffs' charging allegations do not put the defendants on notice in any way as to the
manner in which they were supposed to have breached their duty of due care. This case is far
different from the suggested averment provided in Form 9, NRCP, which authorizes an
injured traffic victim to aver that a defendant negligently drove a motor vehicle against
plaintiff who was then crossing said highway. In the Form 9 type of pleading, the defendant
is put on notice that he or she is charged with driving a motor vehicle in a negligent manner
into a pedestrian at a specified place. Although the exact nature of the defendant's untoward
conduct is not described, certainly the defendant is put on notice as to what he or she did and
where and when. Here, the defendants are not given a clue as to the nature of their supposed
negligent decision-making. It would appear that a Rush type of action might possibly have
been contemplated, but the mere allegation of negligent refusal to honor a claim does not, in
my opinion, state a valid tort claim against Gibbens. If Falline has a Rush-like claim against
Gibbens, he should be allowed to plead it properly. Upon remand to the district court, the
court might then grant leave for Falline to plead a proper negligence claim if he is aware of
facts to support such a claim. Thus far, none appears. Any vicarious liability on the part of
GNLV must, of course, depend on the sufficiency of the claim against Gibbens. Further, I
have a serious question in my mind as to whether vicarious liability can be imposed at all on a
self-insured employer for negligent acts of a claims administration contractor.
Sufficiency of the Bad Faith Claim for Relief
Falline charges that the defendants are guilty of a breach of the obligation of good faith
and fair dealing by a negligent and intentional failure to pay benefits when due. Again,
although Falline charges both defendants, it appears to me that the Gibbens Company, as
administrator, is the actor, the refusor, who has actually done the deed that forms the
predicate for this intentional tort action.
__________

2
Rush holds only that the industrial compensation statute does not preclude a claimant's pursuing a
negligence action against the state commission for damage resulting from tardy handling of a claim. The
question of negligent exercise of discretionary decision-making powers as against negligent operational
performance (tardiness in acting on a claim) was not discussed or decided.
actually done the deed that forms the predicate for this intentional tort action.
Because one cannot be guilty of both a negligent and intentional failure to pay, I must
assume for the purpose of this opinion that what we are dealing with here is a charge that
Gibbens' conduct in refusing the Falline claim rendered it guilty of a breach of the obligation
of good faith and fair dealing by . . . intentional failure [refusal] to pay benefits when due.
(My emphasis.)
As I see it, there are a number of difficulties associated with creating in this jurisdiction a
new intentional tort called breach of the obligation [not covenant] of good faith and fair
dealing, a tort that was, according to the averments of the amended complaint, committed by
intentional failure to pay benefits when due. (My emphasis.)
The new, breach-of-obligation tort proposed by Falline is, I take it, some relation to
tortious breach of the implied covenant of good faith and fair dealing that is a part of every
contract. I first wonder if there is a contract in this case from which the implied covenant can
be derived. Neither defendant is in the insurance business; neither charges premiums; neither
enters into an insurance-like contract with industrial claimants. I realize that other
jurisdictions have recognized torts which arise out of an obligation of good faith, but, to
me, presently at least, this obligation is of unknown and, in Nevada, unprecedented origin. I
would like to know more about this new tort before I rule in favor of the creation of such a
tort in Nevada. These matters should be dealt with at the trial level.
Assuming that a breach of the obligation referred to by Falline can be turned into
something analogous to the bad faith tort in insurance cases which was recognized in United
States Fidelity v. Peterson, 91 Nev. 617, 540 P.2d 1020 (1975), I certainly doubt that a mere
intentional failure to pay when due is alone sufficient to state a claim for an intentional tort.
In Peterson, as I view it, the basis for these kinds of tort actions are insurance companies'
refusing without proper cause to honor insurance claims after having knowledge that the
claims are valid. It is not clear to me what Falline's allegation of intentional failure to pay
benefits when due comprises, but it occurs to me that there might be a variety of
non-tortious reasons why an insurance company might fail to pay a claim when due. If Falline
had charged Gibbens with actual knowledge that Falline had a valid claim and that, despite
such knowledge, Gibbens consciously decided to deprive Falline of the benefits to which it
knew he was entitled, then we might be approaching the presence of ingredients out of which
an intentional tort might be made.
Even if an intentional tort had been legally pleaded, GNLV, of course, would not be
responsible for the tort as pleaded because, as a principal, apparently GNLV did not
participate actively in the wrongful administrative decision-making process engaged in by
Gibbens, and which is claimed to constitute an intentional tort.
As said, I think the trial judge acted properly in dismissing the negligence and bad faith
tort claims because the amended complaint fails to state tort claims upon which relief can be
granted. I would affirm the judgment of the trial court.
____________

Nevada Reports 1991 (107 Nev.) PDF

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