Nevada Reports 1985 (101 Nev.) PDF

101 Nev.
1, 1 (1985)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 101
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101 Nev. 1, 1 (1985) Big Pond v. State
KEVIN ALLEN BIG POND, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 14576
January 3, 1985 692 P.2d 1288
Appeal from judgment of conviction of sexual assault; First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
Defendant was convicted in the district court of sexual assault, and he appealed. The
Supreme Court held that in view of fact that evidence against defendant was not
overwhelming, cumulative effect of errors relative to admission of statement taken in
violation of Miranda and to misconduct during trial by both a juror and the court bailiff,
though the errors were not in themselves particularly egregious, was to unfairly undermine
defendant's credibility and defense in rather close case, thus denying him his right to a fair
trial, warranting reversal of conviction.
Reversed.
Aebi, FitzSimmons & Lambrose, Carson City, and Michael Pescetta, San Francisco,
California, for Appellant.
Brian McKay, Attorney General; William A. Maddox, District Attorney and Noel S.
Waters, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Considerations relevant to decision whether error is harmless or prejudicial include whether the issue of
innocence or guilt is close, quantity and character of the error, and gravity of crime charged.
2. Criminal Law.
In view of fact that evidence against defendant was not overwhelming, cumulative effect of errors relative
to improper admission of statement taken in violation of Miranda and to misconduct during trial by both a
juror and the court bailiff, though the errors were not in themselves particularly egregious, was to unfairly
undermine defendant's credibility and defense in rather close case, and thus deny him his right to a fair
trial, warranting reversal of conviction of sexual assault.
OPINION
Per Curiam:
Appellant Kevin Allen Big Pond was convicted by a jury of sexual assault. He appeals,
citing numerous assignments of error including the trial court's admission of a statement
taken in violation of his Miranda rights,
1
and the court's failure to grant a new trial after
discovering that instances of bailiff misconduct and juror misconduct occurred during trial.
Because we determine that an accumulation of error prevented appellant from receiving a fair
trial, we reverse.
At trial, appellant admitted giving the victim a ride and drinking beer with her in his car,
but denied any sexual contact. The prosecution offered evidence of a statement which
appellant had earlier made to police in which he denied giving the victim a ride on the night
in question. Our review of the record indicates that this statement was taken in violation of
appellant's right to remain silent. See Miranda v. Arizona, 384 U.S. 436 (1966). Moreover, it
was revealed after trial that there had been misconduct during trial by both a juror and the
court bailiff. Two jurors recalled that a male juror made a statement during deliberations to
the effect that the absence of semen on the body of a rape victim, as occurred in this case, was
not uncommon and happened in over half of the cases. It was also discovered that the bailiff
had engaged in a conversation with a juror about the Miranda decision during a trial lunch
recess.
____________________

1
Miranda v. Arizona, 384 U.S. 436 (1966).
[Headnote 1]
We have established certain considerations which are relevant to the decision of whether
error is harmless or prejudicial. These include whether the issue of innocence or guilt is close,
the quantity and character of the error, and the gravity of the crime charged. See Weakland v.
State, 96 Nev. 699, 701, 615 P.2d 252, 254 (1980); Garner v. State, 78 Nev. 366, 375, 374
P.2d 525, 530 (1962).
[Headnote 2]
In this case, appellant was charged with a serious felony. The evidence against him,
although substantial enough to convict him in an otherwise fair trial, was not overwhelming.
We cannot say without reservation that the verdict would have been the same in the absence
of error. The nature of the errors, while not in themselves particularly egregious, together had
the effect of unfairly undermining appellant's credibility and defense in a rather close case.
The cumulative effect of the errors was to deny appellant his right to a fair trial. Accordingly,
we conclude that the judgement of conviction must be reversed.
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101 Nev. 3, 3 (1985) Brundy v. Bramlet
DAVID BRUNDY and SALLY BRUNDY, CHARLES BODOR and PAUL BODOR,
Appellants, v. CHRISTY LYNN BRAMLET, Respondent.
No. 14756
January 3, 1985 692 P.2d 493
Appeal from summary judgment, Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Adverse possession claimants appealed from order of the district court granting summary
judgment quieting title to parcel of real estate. The Supreme Court held that since water
assessments are taxes which must be paid by claimants in order to perfect title by adverse
possession, party who had originally acquired the lot in question from her mother and who
had thereafter paid the water assessments upon that property was entitled to have title thereto
quieted in her, though claimants had paid the real estate taxes.
Affirmed.
Lea & Beecroft, Las Vegas, for Appellants.
Lionel Sawyer & Collins, and Mark A. Solomon, Las Vegas, for Respondent.
1. Adverse Possession.
Statutory provisions governing acquisition of title by adverse possession must be strictly construed and
strictly followed. NRS 11.150, 40.090.
Water assessments are taxes which must be paid by claimant in order to perfect title by adverse
possession, and thus party who had originally acquired lot in question from her mother and who had
thereafter paid the water assessments upon that property was entitled to have title quieted in her even
though subject claimants had paid the real estate taxes. NRS 11.150, 40.090.
To prove title, an adverse claimant must show that he has, in all respects, acted consistently as the true
owner of the property. NRS 11.150, 40.090.
4. Appeal and Error.
Motion to strike portion of reply brief, filed shortly before oral argument and several months after the
brief had been filed, was untimely and would not be considered; nonetheless, arguments in reply brief not
properly preserved for review would also not be considered.
OPINION
Per Curiam:
This appeal is from an order granting summary judgment quieting title to a parcel of real
estate located in Clark County. The primary issue in this case is whether an adverse claimant
to real property must pay a water assessment levied upon the subject property in order to
perfect title through adverse possession. For the following reasons, we affirm.
Lots 22 and 23 are adjoining parcels of real property located in Clark County. Respondent
Christy Bramlet acquired lot 22 in 1961 from her mother. Elmer Bramlet acquired lot 23 in
1963 in the same manner, but he subsequently sold both lots. After several transactions, on
November 20, 1972, the lots were purchased by appellants David and Sally Brundy. The
Brundys constructed a dwelling on lot 23 and fenced both lots. On June 4, 1976, the Brundys
entered into a contract for the sale of the lots to Charles and Paul Bodor, who have occupied
the property for a period in excess of six years. Appellants have paid the real estate taxes
levied against the property since 1972. Respondent, on the other hand, has paid the water
assessments upon the subject property between July 15, 1975, and July 15, 1981.
Respondent brought an action to quiet title to lot 22 and moved for summary judgment.
Respondent contends that, by failing to pay the water assessments for the years
1975-19S1, appellants could not demonstrate that the adverse possession requirements
had been met.
pay the water assessments for the years 1975-1981, appellants could not demonstrate that the
adverse possession requirements had been met.
The lower court found that water assessments are taxes assessed against the subject
property, which an adverse possessor must pay in order to satisfy the requirements of NRS
40.090 or NRS 11.150.
1
The court concluded that, because respondent had paid the water
assessments upon the subject property between 1975 and 1981, appellants did not satisfy the
statutory requirements. Accordingly, the court found that appellants could not prevail on their
claim of adverse possession, and respondent's motion for summary judgment was granted.
[Headnotes 1, 2]
The parties dispute whether NRS 11.150 or NRS 40.090 is applicable to the instant case.
The outcome of this case does not depend on which of the statutes is applied. Statutory
provisions governing the acquisition of title by adverse possession must be strictly construed
and strictly followed. See Wood v. Henley, 263 P. 870 (Cal.Cr.App. 1928). For purposes of
both of the above adverse possession statutes, we conclude that water assessments are taxes
which must be paid by the claimant in order to perfect title by adverse possession.
[Headnote 3]
The policy consideration underlying the law of adverse possession is served by requiring
such assessments to be paid by the adverse claimant. Adverse possession allows peaceful
resolution of disputes over the ownership of real property and frees the alienation of that
property by removing uncertainties regarding title. To prove title, an adverse claimant must
show that he has, in all respects, acted consistently as the true owner of the property.
____________________

1
NRS 11.150 provides:
In no case shall adverse possession be considered established unless it be shown, in addition to the
requirements of NRS 11.120 or 11.140, that the land has been occupied and claimed for the period of 5
years, continuously, and that the party or persons, their predecessors and grantors have paid all taxes,
state, county and municipal, which may have been levied and assessed against the land for the period
mentioned, or have tendered payment thereof.
NRS 40.090 provides in pertinent part:
1. An action may be brought to determine the adverse claims to and clouds upon title to real property
by a person who, by himself, or by himself and his predecessors in interest, has been in the actual,
exclusive and adverse possession of such property continuously for more than 15 years prior to the filing
of the complaint, claiming to own the same in fee, or by any other freehold estate, against the whole
world, and who has by himself or his predecessors in interest, paid all taxes of every kind levied or
assessed and due against the property during the period of 5 years next preceding the filing of the
complaint. . . .
See NRS 11.110 et seq.; NRS 40.090 et seq. True owners pay special assessments against
their property or face enforcement of a lien against such property to satisfy the
obligation. See NRS 318.201. Since appellants did not pay the water assessments, their
claim to legal title is defective.
[Headnote 4]
Accordingly, we affirm the district court's order.
2

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2
Respondent moved to strike a portion of appellants' reply brief, contending that the brief raised an argument
which was not properly preserved for appeal. This motion was filed shortly before oral argument of the instant
case, several months after the brief had been filed. Respondent offered no excuse why the motion to strike was
not filed earlier. We refuse to consider the motion on the ground that it was untimely. In any event, we have not
considered arguments which were not properly preserved for our review. See Old Aztec Mine, Inc. v. Brown, 97
Nev. 49, 623 P.2d 981 (1981).
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101 Nev. 6, 6 (1985) Kimmel v. Warden
NATHAN F. KIMMEL, Appellant, v. WARDEN OF THE
NEVADA STATE PRISON, Respondent.
No. 14761
January 3, 1985 692 P.2d 1286
Appeal from a district court's order denying a post-conviction petition for a writ of habeas
corpus, First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Petition was filed for post-conviction relief. The district court denied relief, and petitioner
appealed. The Supreme Court held that there was no good cause warranting failure to
challenge instruction on presumed intent either at trial level or on direct appeal.
Affirmed.
Thomas E. Perkins, State Public Defender, and Jerald Courtney and Robert Morris,
Deputy State Public Defenders, Carson City, for Appellant.
Brian McKay, Attorney General, and Dan Reaser, Deputy Attorney General, Carson City,
for Respondent.
Criminal Law.
Failure to object to instruction on presumption of innocence at time of 1978 trial or 1980 direct appeal
was not excusable so as to warrant consideration of issue for first time on post-conviction motion as
instruction violated statute which had been in existence since 1971 and clearly proved that giving of any
instruction on presumed intent and subsequent case specifically invalidating similar instructions
referred to two cases prior to petitioner's direct appeal which applied statute to
invalidate similar instructions.
case specifically invalidating similar instructions referred to two cases prior to
petitioner's direct appeal which applied statute to invalidate similar instructions. NRS
47.230, 47.230, subd. 2.
OPINION
Per Curiam:
In 1978, appellant was convicted upon jury verdict of two counts of first degree murder
and six counts of attempted murder. Appellant's conviction was affirmed on direct appeal by
this court in Burns v. State, 96 Nev. 802, 618 P.2d 881 (1980). In February of 1983, appellant
brought a post-conviction petition for a writ of habeas corpus in the district court, challenging
the propriety of a jury instruction which had been given at his trial. The district court denied
the petition and this appeal ensued. For the reasons set forth below, we affirm the district
court's ruling.
Appellant challenges a jury instruction given at his trial, on the ground that the instruction
created an impermissible presumption of intent, in violation of Wade v. State, 97 Nev. 350,
630 P.2d 1219 (1981).
1
See also Sandstrom v. Montana, 442 U.S. 510 (1979). Appellant,
however, did not object to this instruction at the time of trial, and did not raise the issue on
his direct appeal. The district court, in its order denying appellant's habeas petition, excused
these failures on the ground that the law in this area was not yet settled at the time of
appellant's trial in 1978 or at the time his direct appeal was decided in 1980. In particular, the
district court noted that the case of Wade v. State, supra, which invalidated a jury instruction
identical to the one now being challenged by appellant, was not decided until 1981. The
district court then concluded that the challenged instruction was improper under Wade, but
found that any error in giving the instruction was harmless beyond a reasonable doubt in view
of the overwhelming evidence of appellant's guilt presented at his trial.
We express no opinion at this time concerning whether any error in the giving of the
challenged instruction can be viewed as being harmless under the particular circumstances of
this case. Cf., Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct 969 (1983) (giving of a jury
instruction which established a conclusive presumption of defendant's intent cannot be
viewed as harmless error except in very narrowly defined circumstances).
____________________

1
The jury instruction in question read as follows:
Upon the question of intent, the law presumes a person to intend the reasonable and natural
consequences of any act intentionally done; and this presumption of law will always prevail, unless from
a consideration of all the evidence bearing upon the point, the jury entertain a reasonable doubt whether
such intention did exist.
error except in very narrowly defined circumstances). Instead, we have concluded that
appellant's failure to raise this claim earlier precluded review of the merits of appellant's
argument, since appellant has not in fact established good cause for this failure. See Junior v.
Warden, 91 Nev. 111, 532 P.2d 1037 (1975) (defendant must establish good cause for failure
to raise issue on direct appeal in order to raise issue for first time in a post-conviction habeas
corpus proceeding.)
Good cause for the failure to raise this issue on direct appeal might have existed if in fact
the law at the time of appellant's appeal was unsettled, and if in fact Wade v. State, supra, had
presented a novel interpretation of the law in this state, as concluded by the district court. See
generally Reed v. Ross,
___
U.S.
___
, 104 S.Ct. 2901 (1984); St. Pierre v. State, 96 Nev.
887, 620 P.2d 1240 (1980). Wade, however, did not present a novel or unforeseeable
interpretation of Nevada law. The holding in Wade was instead based on a highly foreseeable
interpretation of existing Nevada law. In particular, in Wade we concluded that the jury
instruction given in that case violated NRS 47.230, which has been in existence since 1971,
and which clearly and expressly prohibits the giving of any instructions on presumed intent.
2
Additionally, Wade referred to two Nevada cases decided prior to the time appellant's direct
appeal was decided, in which this court applied NRS 47.230 to invalidate two similar
instructions on presumed intent. See Barnett v. State, 96 Nev. 753, 616 P.2d 1107 (1980);
Hollis v. State, 96 Nev. 207, 606 P.2d 534 (1980).
3

Accordingly, there was nothing novel or unforeseeable about our holding in Wade, and
appellant therefore could have reasonably been expected to raise this issue on his direct
appeal. Since appellant has been otherwise unable to establish good cause for his failure to do
so, the district court was precluded from reviewing the merits of appellant's claim. See Junior
v. Warden, supra. We therefore affirm the judgment of the district court denying appellant's
habeas petition.
____________________

2
NRS 47.230(2) provides that:
The judge shall not direct the jury to find a presumed fact against the accused.

3
Appellant's direct appeal was docketed in this court on August 11, 1978. Oral argument on the appeal,
however, was not heard until September 11, 1980, and the appeal was not disposed of until October 29, 1980.
During the interim period, not only were Hollis and Barnett decided by this court, but the United States Supreme
Court also handed down its decision in Sandstrom v. Montana, supra, which invalidated a presumption of intent
instruction using language similar to the language used in the instruction challenged in the present case.
Appellant, however, has failed to present this court with any explanation concerning why he did not even attempt
to file a supplemental brief in this court after these cases were decided to discuss what application they might
have to his case.
appellant's habeas petition. See generally Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 632 P.2d
1155 (1981) (if lower court's judgment is otherwise correct, it will not be disturbed on appeal
even though lower court relied upon the wrong reasons in reaching its judgment); see also
Cunningham v. State, 100 Nev. 396, 683 P.2d 500 (1984).
Affirmed.
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101 Nev. 9, 9 (1985) Campbell v. Nocilla
HUGH ROBERT CAMPBELL, KAREN CAMPBELL, KAY R. BANDLEY, C-B
ENTERPRISES and SUN HOMEBUILDERS, INC., Appellants, v. RICHARD
NOCILLA dba SOUTH 7th REALTY, Respondent.
No. 14781
January 3, 1985 692 P.2d 491
Appeal from judgment, Eighth Judicial District Court, Clark County; Paul S. Goldman,
Judge.
Owners of real property, against whom prospective purchasers of their property had filed
action alleging various breaches of purchase agreements and seeking damages, filed
third-party complaint against the real estate broker whom they had hired to act as listing
broker, alleging that they were entitled to indemnification. The owners and the purchasers
subsequently entered into a settlement agreement. The district court entered judgment for the
real estate broker along with an award of attorney fees, and the owners appealed. The
Supreme Court held that: (1) there was not statutory basis for the award of attorney fees and
(2) real estate listing agreement did not entitle the real estate broker to attorney fees.
Reversed.
Pomeranz, Crockett & Myers, Las Vegas, for Appellants.
Carelli & Miller, Las Vegas, for Respondent.
1. Costs.
Attorney fees may not be awarded in absence of statute, rule or contract granting them.
2. Costs.
There was no statutory basis for award of attorney fees to third-party from whom indemnity was sought
because amount of damages in excess of $10,000 alleged in third-party complaint seeking indemnity was
supported by underlying claim when third-party plaintiffs filed action for indemnity even though by the
time third-party indemnity claim came to trial, third-party plaintiffs could not have recovered
damages in amount alleged in their complaint because they had previously entered
into settlement for $9,000 on the underlying claim.
trial, third-party plaintiffs could not have recovered damages in amount alleged in their complaint because
they had previously entered into settlement for $9,000 on the underlying claim. NRS 18.010, subd. 2(c).
3. Costs.
Real estate broker against whom claim for indemnity based on tort was brought was not entitled to
attorney fees pursuant to terms of real estate listing agreement which provided that owners of real property
for sale would pay reasonable attorney fees in event that suit was brought to enforce that contract, since
indemnity claim was not brought to enforce listing agreement.
4. Costs.
Where contract provision purports to allow attorney fees in action arising out of terms of instrument,
Supreme Court will not construe provision to have broader application.
OPINION
Per Curiam:
This is an appeal from a judgment in an action for indemnity. The sole issue presented is
whether the district court erred in awarding attorney's fees to respondent. We conclude that
the district court erred, and we therefore reverse the award of attorney's fees.
Appellants offered certain real property for sale. Respondent, a real estate broker, was
hired by appellants to act as listing broker pursuant to listing agreements to sell residences
constructed by appellants. Prospective purchasers of appellants' property filed an action
against appellants, alleging various breaches of the purchase agreements, and seeking
damages in excess of $10,000. Thereafter, appellants filed a third-party complaint against
respondent, alleging that appellants were entitled to indemnification from respondent for any
damages for which appellants might be liable to the purchasers. The purchasers are not
parties to this appeal.
The purchasers and appellants subsequently entered into a settlement whereby appellants
stipulated to judgment in the amount of $9,000. Appellants thereafter proceeded against
respondent for indemnity as to the amount of the settlement with the purchasers. In their
amended third-party complaint, filed prior to the settlement, appellants alleged that they
suffered general and special damages in excess of $10,000, and prayed for judgment in that
amount. Judgment was ultimately entered for respondent, along with an award of attorney's
fees.
[Headnote 1]
Attorney's fees may not be awarded in the absence of a statute, rule or contract granting
them. Nevada Bd. Osteopathic Med. v. Graham, 9S Nev. 174
Graham, 98 Nev. 174, 643 P.2d 1222 (1982). Appellants contend that no grounds for the
award were present, and that therefore the award was improper. Respondent contends that the
award was proper either under NRS 18.010(2)(c),
1
or pursuant to a contractual provision.
Appellants contend that under NRS 18.010(2)(c), the district court had no authority to
award attorney's fees to respondent because appellants sought recovery in excess of $10,000.
Appellants rely on Peacock Jewelers, Inc. v. Nevada St. Bk., 92 Nev. 654, 556 P.2d 1266
(1976), where we summarily vacated an award of attorney's fees to a prevailing defendant
because the complaint sought more than $10,000. Respondent relies on Simas Floor Co. v.
Tysen, 99 Nev. 691, 669 P.2d 708 (1983), where we held that under the circumstances of that
case, although the complaint prayed for damages in excess of $10,000, recovery in excess of
$10,000 was not sought within the meaning of NRS 18.010(2)(c) because plaintiff had
provided no support, in its pleadings, at trial or otherwise, for its allegation of damages in
excess of $10,000. In the present case, respondent contends that the relief sought should be
deemed to be less than $10,000, since appellants ultimately were seeking only
indemnification for the $9,000 settlement.
[Headnote 2]
This case is not covered directly by either Peacock or Simas. Due to the nature of an
indemnity action, by the time appellants proceeded to trial on their third-party complaint,
appellants could not have recovered damages from respondent in excess of $10,000 because
appellants had previously entered into a $9,000 settlement in the suit for which they sought
indemnity. On the other hand, at the time appellants filed their third-party complaint, a claim
for indemnity in excess of $10,000 was supported by the fact that appellants were defending
against a claim in excess of $10,000. Because the amount of damages alleged in the
third-party complaint was supported by the underlying claim when appellants filed the action
for indemnity, we conclude that appellants did seek relief in excess of $10,000 within the
meaning of NRS 18.010(2)(c). Accordingly, there was no statutory basis for the award of
attorney's fees.
[Headnote 3]
Respondent also contends that its real estate listing agreement with appellants provides a
basis for the award of attorney's fees.
____________________

1
NRS 18.010(2)(c) provides that the court may make allowance of attorney's fees to the defendant as
prevailing party when the plaintiff has not sought recovery in excess of $10,000.
The pertinent provision therein stated that: In case suit is brought to enforce this contract, I
[appellants] agree to pay reasonable attorney's fees as the court may fix in said suit.
Respondent argues that since appellants' third-party complaint is based upon the listing
agreement, respondent is entitled to attorney's fees pursuant to the terms of that agreement.
We disagree because appellants' third-party complaint was not brought to enforce the
listing agreement.
[Headnote 4]
The third-party action was brought to obtain indemnification from respondent, based upon
his alleged negligence or other tortious act.
2
The language of the contract, however,
contemplates an action to enforce the listing agreement. Where a contract provision
purports to allow attorney's fees in an action arising out of the terms of the instrument, we
will not construe the provision to have broader application. See First Commercial Title v.
Holmes, 92 Nev. 363, 550 P.2d 1271 (1976).
Accordingly, the judgment of the district court is reversed insofar as it awards attorney's
fees to respondent.
3

____________________

2
Respondent was alleged to have violated FHA rules, violated the Realtors Code of Ethics, and committed
negligent or intentional misrepresentations.

3
Justice Thomas L. Steffen voluntarily recused himself from participation in the decision of this appeal.
____________
101 Nev. 12, 12 (1985) K-Mart Corporation v. SIIS
K-MART CORPORATION, Appellant, v. STATE INDUSTRIAL INSURANCE
SYSTEM and All Commissioners Thereto, Respondents.
No. 14888
January 3, 1985 693 P.2d 562
Appeal from order of district court on petition for judicial review affirming decision of the
Nevada Industrial Commissioners. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Employer petitioned for judicial review of Industrial Commissioners' rulings regarding
propriety of an assessment for increased death and permanent disability benefits paid to
claimants who had already been receiving compensation prior to amendment of statute. The
district court affirmed the Commissioners' decision, and employer appealed. The Supreme
Court, Manoukian, C. J., held that: (1) determination of individual assessments by applying
statutory formula did not constitute rule making; {2) the rulings on time of payment of
premiums and application of experience dividends were invalid because they constituted
rule makings that had not been made in compliance with statutory procedures; {3)
amendment of the statute did not constitute an unconstitutional impairment of contract;
and {4) operation of the statute did not violate the due process clause.
assessments by applying statutory formula did not constitute rule making; (2) the rulings on
time of payment of premiums and application of experience dividends were invalid because
they constituted rule makings that had not been made in compliance with statutory
procedures; (3) amendment of the statute did not constitute an unconstitutional impairment of
contract; and (4) operation of the statute did not violate the due process clause.
Affirmed in part; reversed in part.
Richard S. Staub, Carson City, for Appellant.
Brian McKay, Attorney General, and Robert Gibb, General Counsel for State Industrial
Insurance System, Carson City, for Respondents.
Vargas & Bartlett, Reno, for Harrah's Inc., as Amicus Curiae.
1. Administrative Law and Procedure.
Formalities of rule making are not required whenever an agency undertakes to enforce or implement
necessary requirements of the existing statute.
2. Workers' Compensation.
Actions of State Industrial Insurance System in determining individual self-insured employer assessments
for increased death and permanent total disability benefits by applying the formula set forth in statute was
simply the agency's pronouncement of how statute operated in a specific context and did not constitute rule
making requiring it to follow statutory procedures for adoption of regulations. NRS 233B.038,
233B.040 et seq.; Nev. Stat. 1981, ch. 573, 10.
Agency engages in rulemaking when it does nothing more than state its official position on how it
interprets a requirement already provided in statute and how it proposes to administer the statute. NRS
233B.038, 233B.040 et seq.
Determination of State Industrial Insurance System concerning time of payment of increased premiums
and offset of experience dividends pursuant to statute increasing benefits was a rule making requiring
compliance with statutory rule making procedures since it was a statement of general applicability
effectuating law or policy. NRS 233B.038, 233B.040 et seq.; Nev. Stat. 1981, ch. 573, 10.
5. Constitutional Law.
Every legislative enactment enjoys a presumption of constitutional validity.
Rights and duties under workers' compensation statute are not contractual for purposes of the contracts
clause of the United States Constitution but are based on the employer-employee status from which certain
rights and responsibilities flow. NRS 616.010 et seq.; U.S.C.A. Const. Art. 1, 10, cl. 1.
Amendment to workers' compensation statute which increased death and permanent total disability
benefits to claimants already receiving compensation was not an unconstitutional impairment of contracts
since the Workers' Compensation Act is properly characterized as compulsory, not contractual.
U.S.C.A.Const. Art. 1, 10, cl. 1; Nev. Stat. 1981, ch. 573, 1 et seq.
Retroactive operation of newly enacted legislation requiring analysis under the due process clause is
that which takes away or impairs vested rights acquired under existing laws or creates a new obligation,
imposes a new duty, or attaches new liability in respect to transactions or considerations already past.
U.S.C.A.Const. Amends. 5, 14.
Statute amending Worker's Compensation Act to provide for increased benefits to those already receiving
them, and consequent increased premiums, operated retroactively for purposes of analysis under the due
process clause, since claimant's right to payments had already vested at the date of disability or fatal
accident, even though amendment to statute purported to exclude benefit increases from statute on vesting
of benefits, since this provision, if given effect, would also change rights and liabilities already vested.
U.S.C.A.Const. Amends. 5, 14; NRS 616.625, Nev. Stat. 1981, ch. 573, 1 et seq., 7.
10. Constitutional Law; Workers' Compensation.
Increase in premiums to fund increased death and permanent total disability benefits to claimants already
receiving benefits did not violate the due process clause despite retroactive effect, since it was a
permissible exercise of police power because reduction of spending power of pensioners as result of
inflation was a sufficient cause for exercise of police power. Nev. Stat. 1981, ch. 573, 1 et seq.;
OPINION
By the Court, Manoukian, C. J.:
This is an appeal from an order of the lower court on judicial review affirming the decision
of the Nevada Industrial Commissioners. We hold that no impairment of contract occurred by
the passage of A.B. 433 because this state's workers compensation act creates a status based
relationship which is not contractual or consensual. Additionally, we hold that any retroactive
effect of A.B. 433 was a valid exercise of the Legislature's police power. The State Industrial
Insurance System's individual assessments against self-insured employers, derived by
applying the statutory formula in section 10 of A.B. 433, did not constitute a regulation.
Nevertheless, the System's unpromulgated rules on the date of payment and on permitting
offsets against experience dividends were regulations. Accordingly, we affirm in part and
reverse in part.
The 1981 Nevada Legislature passed A.B. 433 which, among other things, increased death
and permanent total disability benefits to claimants who were receiving compensation
pursuant to Chapter 616.
fits to claimants who were receiving compensation pursuant to Chapter 616. 1981 Nev. Stats.
Ch. 573 2, 4. The cost of this program was approximately $11.5 million. The benefit
increases were funded by a special assessment or premium increase against participating
employers. 1981 Nev. Stats. Ch. 573 10. Pursuant to A.B. 433, the employer accounts
department of the State Industrial Insurance System assessed K-Mart $47,369.37. Harrah's,
amicus curiae in this case, was assessed $103,439.33.
After receipt of its assessment, K-Mart intervened in a hearing pending before the Nevada
Industrial Commissioners in which several other employers had challenged their assessments.
Following the administrative hearing, the Commissioners issued a unanimous decision on
March 8, 1982. The Commissioners held that the System's implementation of the assessment
formula provided in section 10 of A.B. 433 and the System's collection procedure did not
constitute a regulation as defined in the Administrative Procedure Act (A.P.A.). See NRS
233B.010 et seq. The Commissioners also decided that K-Mart had been assessed the proper
amount by the employer accounts department.
K-Mart petitioned for judicial review of the Commissioners' decision pursuant to NRS
233B.130. The district court affirmed the Commissioners' rulings regarding the propriety of
the assessment against K-Mart and the applicability of the A.P.A. to the System's actions.
Additionally, the lower court held that the enactment of A.B. 433 and its implementation by
the employer accounts department did not violate procedural due process. Moreover, the
lower court ruled that A.B. 433 did not constitute an impairment of contract in violation of
Article 1 Section 10 of the United States Constitution. K-Mart has appealed this decision.
Agency Action as Regulations under A.P.A.
The funding provision of A.B. 433 provided:
The increases provided in sections 2 and 4, inclusive, of this act must be funded by:
1. An increase in premium rates for employers who are insured by the Nevada
Industrial Commission for the fiscal year beginning July 1, 1981, and ending June
30, 1982, which is equal to the cost imposed by sections 2 to 4, inclusive, of this act
for that period, less the proportionate share of that cost assessed against self-insured
employers; and
2. An assessment against self-insured employers who were insured by the Commission
during the fiscal year beginning July 1, 1979, and ending June 30, 1980, of a
percentage of the cost imposed by sections 2 to 4, inclusive, of this act which is
equal to the percentage of the total premiums paid to the Commission in the fiscal
year beginning July 1, 1979, and ending June 30, 19S0, that were paid by
self-insured employers.
total premiums paid to the Commission in the fiscal year beginning July 1, 1979,
and ending June 30, 1980, that were paid by self-insured employers.
1981 Nev. Stats. Ch. 573 10 at 1227. Pursuant to the formula established by the Legislature
in section 10, the System imposed a 7.7% increase on premiums paid by employers who had
remained insured by the System. For those employers who had elected to self-insure after
June 30, 1980, the System applied the formula in subsection two and arrived at individual
assessments.
Under subsection two, the total premiums paid to the System in the fiscal year beginning
July 1, 1979, and ending June 30, 1980, were found to be $123,532,000.00. Of that sum, 15%
was paid by presently self-insured employers. The system then applied the simple formula
provided in the statute, i.e., .15 x 11,500,000 = cost to self-insured employers to arrive at the
proportionate share of the cost of the program which self-insured employers had to bear. To
determine each self-insured employer's individual assessment, the System had only to
determine the percentage of each employer's contribution to the total premiums paid by
self-insured employers between July 1, 1979, and June 30, 1980, and multiply that percentage
by the proportionate cost of the program to be borne by self-insured employers. This
procedure and the supporting calculations were derived by the System upon advice of its
consulting actuary, Alan Kaufman of Peat, Marwick, Mitchell and Company, on June 30,
1981, at an open meeting.
K-Mart contends that the System's action regarding the formula set forth in section 10 was
a regulation pursuant to NRS 233B.038. Because the System did not follow the procedures
for the adoption of regulations contained in NRS 233B.040 et seq., K-Mart argues that the
assessments are invalid. Both the Commissioners and the district court rejected K-Mart's
argument. The district court stated that the implementation of section 10 was not a regulation
under NRS 233B.038 because the formula was a mere restatement of the mathematical
calculation mandated in section 10. . . .
[Headnotes 1, 2]
NRS 233B.038 states that a [r]egulation means an agency rule, standard, directive or
statement of general applicability which effectuates or interprets law or policy, or describes
the organization, procedure or practice requirements of any agency. The term includes a
proposed regulation and the amendment or repeal of a prior regulation, . . . See also Public
Service Com'n v. Southwest Gas Corp., 99 Nev. 268, 634 P.2d 461 (1983); State Bd. of
Equalization v. Sierra Pac. Power, 97 Nev. 461, 634 P.2d 461 (1981). In the present case, the
result of the implementation of section 10 was neither a statement of general applicability nor
an agency action which was a policy-based interpretation of an existing statute which
could have been otherwise construed.
an agency action which was a policy-based interpretation of an existing statute which could
have been otherwise construed. The System's action in determining the individual
assessments by applying the formula set forth in section 10 was simply the agency's
pronouncement of how the statute operated in a specific context. There is no reason to require
the formalities of rulemaking whenever an agency undertakes to enforce or implement the
necessary requirements of an existing statute. Cf. Burke v. Public Welfare Division, 570 P.2d
87 (Or.App. 1977) (agency action which explains what is necessarily required by existing
regulations need not be promulgated). Compare State Bd. of Equalization, 97 Nev. 461, 634
P.2d 461 (1981) Board of Equalization adoption of assessment formula pursuant to statute
which merely called upon Board to adopt such formula was a regulation).
Additionally, K-Mart contends that two other requirements imposed by the System
constituted regulations under NRS 233B.038. The System required that the self-insurer's
assessments be paid in a lump sum by October 15, 1981, with a one month grace period, and
stated that any experience dividend which the System owed to a self-insured employer under
Regulation 37
1
would be offset against that employer's Section 10 assessment. K-Mart notes
that section 10 does not mention when the assessments were payable or whether the
assessments could be offset. In particular, K-Mart argues that the offsets against the
experience dividends constituted an amendment of Regulation 37.320 which permits the
System to credit an experience dividend to an employer's advance deposit if a deficiency
existed in that account. See NAC 616.544(4).
[Headnotes 3, 4]
An agency makes a rule when it does nothing more than state its official position on how it
interprets a requirement already provided in the statute and how it proposes to administer the
statute. State Bd. of Equalization, 97 Nev. at 464, 634 P.2d at 463. Here, the System's rulings
on the payment and offset were not necessarily required by the statute. The adoption of a
similar rule
2
pursuant to the A.P.A. belies the System's contention that rulemaking was not
necessary in this instance.
____________________

1
Regulation 37 provided that employers whose insurance premiums less administrative expenses exceed
limited losses attributable to compensation claims may receive a dividend. See NAC 616.534 et seq. The
dividends were payable on or around October 15th of each year. See NAC 616.544(6).

2
See, e.g., NAC 616.544(4):
If there is a deficiency balance in a policyholder's advance deposit on September 30 of the year following
the year of the dividend, the dividend will be deposited for credit to the advance deposit to the extent
necessary to cover the deficit.
rulemaking was not necessary in this instance. The System's decision to require a lump sum
payment on October 15 and to permit offsets against the employer's experience dividends is a
statement of general applicability which effectuates law or policy. See NRS 233B.038. These
decisions were not made in compliance with the procedures for adoption of regulations
pursuant to NRS 233B.040 et seq. Consequently, those two provisions are invalid. State Bd.
of Equalization, 97 Nev. at 465, 634 P.2d at 463.
Impairment of Contract
[Headnote 5]
K-Mart next contends that the lower court's ruling rejecting its impairment of contract
claim was erroneous because a contract existed between the System and K-Mart which was
affected by the retroactive operation of A.B. 433. The System responds that this court should
follow a more recent line of cases which, for the purpose of the contract clause, have held that
workers' compensation rights and obligations are not founded in contract. Our analysis, of
course, starts with the presumption of constitutional validity which every legislative
enactment enjoys. Allen v. Pub. Emp. Ret. Bd., 100 Nev. 130, 133, 676 P.2d 792, 794
(1984).
Article 1 Section 10 of the United States Constitution provides that [n]o State shall pass
any . . . law impairing the obligation of contracts. . . . As our recent contract clause cases
demonstrate, the first issue to address is whether the relation purportedly affected by the
legislation is contractual. See, e.g., Allen, 100 Nev. at 137, 676 P.2d at 796; Public Emp.
Ret. v. Washoe Co., 96 Nev. 718, 615 P.2d 972 (1980); City of Las Vegas v. Central Tel. Co.,
85 Nev. 620, 460 P.2d 835 (1969). Many courts deciding this issue have resolved that the
relationship between employer and employee for the purposes of workers' compensation
statutes is contractual in nature. See Horton v. Fleming Co., 590 P.2d 594 (Kan.App. 1979).
Some of those courts have theorized that employers and employees implicitly contract to
abide by the statutory compensation scheme. See, e.g., Harris v. National Truck Service, 321
So.2d 690 (Ala.Civ.App. 1975); Cooper v. Wicomico Cty., Dept. of Public Works, 366 A.2d
55 (Md. 1976). Others emphasize the elective nature of their state's workers' compensation
laws. See, e.g., Tennessee Coal & Iron Div., U.S. Steel Corp. v. Hubert, 110 So.2d 260 (Ala.
1959).
In Nevada Industrial Comm'n v. Reese, 93 Nev. 115, 560 P.2d 1352 (1977), the concurring
opinion proffered a similar argument. There, the court was responding to a challenge to the
constitutionality of the incorporation of the Nevada A.P.A. into the State Industrial
Insurance Act and the establishment of an appeals officer to conduct administrative
hearings in contested claims.
the State Industrial Insurance Act and the establishment of an appeals officer to conduct
administrative hearings in contested claims. The concurrence argued that no constitutional
question was presented. Proceedings under the Industrial Act were essentially contractual in
character, sanctioned and encouraged by statute, but not compulsorily imposed on the
parties. Id. at 128, 560 P.2d at 1360 (Batjer, C. J., concurring). The concurring opinion
stated that NRS 616.305
3
suggests that employees and employers are free to decline to
adopt the terms of the N.I.I.A. to govern their relationship, and instead be governed by such
rights and remedies as might be accorded them under the common law. . . . Id. K-Mart
contends that the full court should adopt this rationale regarding the impairment of contract
issue.
Nevertheless, the analysis employed in those cases which hold workers' compensation to
be contractual in nature has been subjected to sharp criticism. The dissent in Reese stated that
under the N.I.I.A. the right to elect is illusory and negative and cannot realistically be
equated to situations in which parties mutually assent to special proceedings to determine
their relative rights. Id. at 130, 560 P.2d at 1361 (Gunderson, J., dissenting). This position is
supported by a persuasive opinion in Lester v. State Workmen's Compensation Com'r, 242
S.E.2d 443 (W.Va. 1978). After reviewing the history and nature of American workers'
compensation laws, the Lester court concluded that it was a gross fiction to view workers'
compensation as consensual or contractual. Opinions adhering to such a view, the West
Virginia court noted, stem from attempts to avoid the early constitutional objections to the
first industrial acts raised by the devotees of economic individualism and laissez-faire
capitalism. Those opinions argued that the acts' application depended upon the mutual assent
of employers and employees. Id. at 448.
In summary, the Lester court held:
[T]he rights and duties under our workmen's compensation statute are no longer
contractual but grow out of the employer-employee status to which the law attaches
certain duties and responsibilities. The liability of employers arises from the law itself,
rather than from any agreement of the parties. The only significance adhering to the
contractual relationship is the existence of an employer-employee relationship.
____________________

3
NRS 616.305 provides in relevant part:
1. Where the employer, as provided by this chapter, has given notice of an election to accept the terms of
this chapter, and the employee has not given notice of an election to reject the terms of this chapter, the
employer shall provide and secure, and the employee shall accept, compensation in the manner provided by
this chapter for all personal injuries sustained arising out of and in the course of employment.
relationship is the existence of an employer-employee relationship. Once the
employer-employee relationship is established, the statute imposes certain duties and
responsibilities on the parties to that relationship.
Id. at 451 (emphasis added).
K-Mart argues that many of the courts which have rejected the contractual characterization
come from states where the industrial act is compulsory. Although sound reasons exist for
rejecting the contractual characterization of industrial insurance acts independent of the acts'
elective or compulsory nature, K-Mart's observation is, to an extent, true. See, e.g., Price v.
All American Engineering Co., 320 A.2d 336, 339 (Dela. 1974); McAllister v. Bd. of Ed.,
Kearney, 191 A.2d 212 (N.J.App.Div. 1963), aff'd 198 A.2d 765 (N.J. 1964). Nevertheless, as
the System argues, the concurrence in Reese improperly categorized the Nevada workers'
compensation act as elective.
The Reese concurrence relied on NRS 616.305 as evidence of the Nevada act's elective
nature. The concurring opinion in Reese, however, did not mention NRS 616.285. That
statute provides that [w]here an employer has in his service any employee under a contract
of hire, except as otherwise expressly provided in this chapter, the terms, conditions and
provisions of this chapter . . . shall be conclusive, compulsory and obligatory upon both
employer and employee. Under NRS 616.090, employer is given a very broad definition.
The only exemptions from NRS 616.285 seem to be employers and workers temporarily
within the state, see NRS 616.260 (1981); employers of those employees excluded under
NRS 616.060, see NRS 616.315 (1981); and sole proprietors. See NRS 616.317 (1981).
Apparently, the election provision of NRS 616.305 applies only to those excluded employers.
See NRS 616.315 (1981).
[Headnotes 6, 7]
Nevada's workers' compensation act is properly characterized as compulsory. 4 Larson,
Workmen's Compensation Law, App. A-7-2 (1984). To say that workers' compensation in this
state is consensual and contractual is gross fiction. See, e.g., NRS 616.265 (1981)
(contracts waiving liability under Act are null and void). The rights and duties under our
worker's compensation statute are not contractual but based in the employer-employee status
from which certain rights and responsibilities flow. Consequently, the lower court correctly
ruled that A.B. 433 was not an unconstitutional impairment of contracts.
Due Process
Our ruling that the contract clause is inapplicable does not complete our analysis. Besides
the explicit constitutional provisions against retroactive laws, such as the contract clause,
the Supreme Court has also employed the due process clauses of the Fifth and Fourteenth
Amendments to analyze retroactive legislation.
sions against retroactive laws, such as the contract clause, the Supreme Court has also
employed the due process clauses of the Fifth and Fourteenth Amendments to analyze
retroactive legislation. Often the analysis is different from the contract clause in name only.
Clarity of thought, however, requires a separate discussion.
[Headnote 8]
Retroactive operation of newly-enacted legislation has been defined as a statute which
takes away or impairs vested rights acquired under existing laws or creates a new obligation,
imposes a new duty, or attaches a new liability in respect to transactions or considerations
already past. C. Sands, Sutherland Statutory Construction 41.01 (4th ed. 1973), In Virden v.
Smith, 46 Nev. 208, 210 P. 129 (1922), this court reversed a lower court's compensation
award of a $3,000 per month nurse allowance. The amendment to the industrial act which
provided for the nursing allowance was enacted after the worker was injured and did not
address the issue of retroactivity. There, the worker argued that the award of the allowance
from the effective date of the amendment did not give the statute retroactive operation.
Nevertheless, this court held that, since the worker's right to compensation was determined in
accordance with the statute in force when he was injured, the effect of the lower court's award
was to enlarge the benefits he had at the time of his accident. Id. at 212, 210 P. at 130.
K-Mart contends that A.B. 433 is, in essence, a retroactive increase in premiums. The
language of section 10 which defines those employers who must pay the special assessment
as presently self-insured employers who were insured by the Commission during the fiscal
year beginning July 1, 1979, and ending June 30, 1980, K-Mart argues, plainly evidences the
Legislature's intent to retroactively apply A.B. 433. The System responds that sections 2-4 of
the bill state that the increased benefits provided by A.B. 433 must not be paid for any period
before its date of enactment, July 1, 1981. See 1981 Nev. Stats. Ch. 573 2(2), 3(2), 4(2).
Moreover, the System claims that a statute does not operate retroactively simply because it
relies on past transactions to define the members of the class which it affects. Finally, the
System concludes that statutes are not to be given retroactive effect unless the Legislature has
clearly demonstrated such an intent.
[Headnote 9]
On the whole, Amicus's analysis is the most persuasive. It argues that it is not the date on
which the increased benefits are paid but the date when the original benefits accrued which
determines whether a statute operates retroactively. NRS 616.625 {19S0) provided that the
amount of compensation and benefits to which an injured worker is entitled is determined
as of the date of the accident or injury.
(1980) provided that the amount of compensation and benefits to which an injured worker is
entitled is determined as of the date of the accident or injury. Since the employees' or their
survivors' right to death and permanent disability payments vested at the date of the disability
or fatal accident, Harrah's contends that any subsequent increase in those accrued benefits
constitutes a retroactive operation. Although A.B. 433 amended NRS 616.625 (1980) to
exclude its benefit increases from that statute, see 1981 Nev. Stats. Ch. 573 7,
4
Harrah's
claims that the amendment does not change the result. It argues that such an amendment itself
constitutes a retroactive operation because, if given effect, it would change rights and
liabilities already vested under that statute. This analysis comports with Virden, supra, and,
consequently, we hold that A.B. 433 operates retroactively.
Many retroactive statutes, however, have been sustained under due process analysis
because the particular legislative action was a permissible exercise of police power. In Usery
v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976), the Supreme Court validated legislation
that required mine operators to pay benefits to miners who had contracted black lung
disease. The operators contended that the statute violated due process because they were
required to pay benefits to miners who had left their employment before the effective date of
the act. The black lung legislation was sustained, even though it upsets otherwise settled
expectations because it was a rational method to spread the costs of the mine workers'
disabilities to those who have benefitted from their labor. Id. at 17-19.
K-Mart, however, relies on State ex rel. Briggs & Stratton v. Noll, 302 N.W.2d 487 (Wis.
1981), and argues that the increase in death and permanent disability benefits in this case did
not constitute a valid exercise of police power. In Briggs & Stratton, the Wisconsin
Legislature retroactively increased the maximum workers' compensation benefits. The Briggs
& Stratton court held that the statute violated Art. 1 Sec. 1 of the Wisconsin Constitution,
which is substantially equivalent to the due process clause of the Fourteenth Amendment. Id.
at 491. Due process was violated, the Wisconsin court stated, because the inflation
justification was not as urgent as the economic justification of the great depression presented
in Home Building & Loan v. Blaisdell, 290 U.S. 398 (1934), or the national interest of World
War II presented in Schmidt v. Wolf Contracting Co., 55 N.Y.S.
____________________

4
NRS 616.625 (1981) provides that [e]xcept as provided in sections 2, 3 and 4 of [A.B. 433] the amount of
compensation and benefits and the person or persons entitled thereto must be determined as of the date of the
accident or injury to the employee and their right thereto becomes fixed as of that date.
162 (N.Y.App.Div. 1945), aff'd 65 N.E.2d 568 (N.Y. 1946). The Wisconsin court's narrow
interpretation of the police power, however, has been answered by this court in Koscot
Interplanetary, Inc. v. Draney, 90 Nev. 450, 530 P.2d 108 (1974). There, we quoted
approvingly from Veix v. Sixth Ward Bldg & L. Ass'n of Newark, 310 U.S. 32, 39 (1940):
Emergency does not create [police] power, emergency may furnish the occasion for the
exercise of power. Koscot Interplanetary at 459, 530 P.2d at 114. Accordingly, this court
rejected the argument raised by the pyramid sales promoters that, since an emergency
equivalent to the great depression did not exist, the state could not rely on its police powers to
overcome the retroactive operation of a statute which prohibited future and voided present
pyramid promotional sales. Id.
[Headnote 10]
In the instant case, the lower court found that the Legislature validly exercised its police
power in enacting A.B. 433 to increase death and permanent disability benefits to offset the
effects of inflation. We hold that the reduction of the spending power of those pensioners is a
sufficient cause for the exercise of the police power and that it offsets any retroactive effect of
A.B. 433.
Consequently, we hold that A.B. 433 does not violate the impairment of contracts clause
of Article 1 Section 10 or the due process clause of the Fifth or the Fourteenth Amendments
to the United States Constitution. Additionally, we hold that the System's action in
determining the individual assessments for the self-insured employers did not constitute a
regulation. We do, however, rule that the System's decision to require a lump sum payment of
the assessment on October 15th and to permit an offset against the experience dividend was a
regulation pursuant to NRS 233B.038. Because those regulations were not promulgated
pursuant to the A.P.A., they are invalid.
Accordingly, the lower court's judgment is affirmed in part but reversed as to its ruling on
the validity of the date and manner of payment and the offset against the experience dividend.
Springer, Mowbray, Steffen, and Gunderson, JJ., concur.
____________
101 Nev. 24, 24 (1985) Redfield v. Estate of Redfield
NELL J. REDFIELD, MAXIT FINANCIAL CORPORATION, a Nevada Corporation,
T.M.S. ASSOCIATES, a Nevada Limited Partnership, Consisting of ROBERT J.
SULLIVAN and PETER M. THOMAS, General and Limited Partners, and JACK A.
FERGUSON and EDWARD FRIEDBERG, Limited Partners, Appellants, v. IN THE
MATTER OF THE ESTATE OF LaVERE REDFIELD, Deceased, ALBERT B. SOLARI,
JOHN F. NASH, ALBERT E. CARTLIDGE, FRED J. BONNENFANT, SR., ROBERT
RHISLETTA, EDMUND W. NASH, WILLIAM WALKER, LISA A. WILLIAMS and
NORMAN B. NASH, D & S REALTY, CARSON REALTY, Respondents.
No. 15157
January 3, 1985 692 P.2d 1294
Appeal from judgment awarding respondents a broker's fee of $320,000. Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
Broker obtained by unsuccessful bidder for estate property sued the estate, holder of a right
of first refusal, which was exercised, and others to recover commission. The district court
awarded commission, and appeal was taken. The Supreme Court held that broker's
entitlement to commission was contractually dependent upon two conditions precedent,
neither of which was satisfied, and brokerage agreement did not obligate vendor or holder of
right of first refusal to pay commission under instant circumstances.
Reversed.
Vargas & Bartlett, and Frederic R. Starich, and Nicholas F. Frey, Reno, for Appellants.
Robert H. Perry, Reno, for Respondents.
1. Brokers.
If a vendor is obligated to pay commission and remains so after a right of first refusal option is exercised,
it is essential that the commission be included in the offer exercising the right of first refusal.
2. Brokers.
Brokerage firm through which unsuccessful offeror submitted written purchase offer was not entitled to
commission from holder of right of first refusal, which was exercised, as entitlement to commission at close
of escrow was contractually dependent upon nonexercise of right of first refusal and sale of property to
unsuccessful bidder or another after court approval following bid-up procedures and first refusal option
was not subject to bid-up procedures and brokerage agreement did not obligate vendor or holder of right of
first refusal to pay a commission under instant circumstances.
OPINION
Per Curiam:
This appeal focuses on Carson Realty's entitlement to a broker's commission. The district
court awarded Carson Realty a broker's fee in the amount of $320,000 on the ground that
Maxit Financial Corporation, holder of a right of first refusal on the Redfield Estate property,
was required to match the purchase offer of D & S Construction, Inc., which included a
broker's fee to Carson Realty. For the reasons set forth hereinafter, we disagree.
[Headnotes 1, 2]
Real estate known as the Callahan Ranch property was owned by the Estate of LaVere
Redfield (Estate). The Estate entered into an agreement that granted a right of first refusal to
the Callahan Ranch property to appellant Maxit Financial Corporation (Maxit). The
agreement entitled Maxit, its successors or assigns, the right to purchase the property on the
same terms and conditions acceptable to the Estate in connection with any other prospective
buyer. The agreement also provided that the purchase of the property by Maxit was subject to
the court's initial approval, but not subject to the bid-up procedures provided in NRS 147.270.
After D & S Construction (D & S) submitted several offers in 1978 to purchase the
Callahan Ranch property, representatives of the Estate offered to sell the property to D & S
for $2,880,000. Thereafter, D & S negotiated with the Estate regarding the use of a broker, a
proposition that the Estate found acceptable so long as the broker's commission was
effectively picked up by [D & S].
D & S thereafter submitted a written offer through Carson Realty, Inc., a licensed Nevada
broker, to purchase the Callahan Ranch property. The price offered was $3,200,000 which
consisted of the $2,880,000 demanded by the Estate plus a ten percent brokerage commission
of $320,000 to Carson Realty.
The D & S offer to purchase contained two significant passages. First, the offer was
expressly subject to Maxit's right of first refusal. Paragraph four reads as follows:
It is understood and agreed that the close of escrow is subject to the following
conditions:
(a) Right of first refusal held by Maxit Financial Corporation;
(b) Final sale of property subject to the Court confirmation and probate bid-up
procedures.
Escrow shall close on or before sixty (60) days of final Court confirmation and
approval of sale.
D & S knew its offer was subject to Maxit's right of first refusal. Second, the offer provided
for payment of Carson Realty's commission upon condition of the acceptance of the offer,
court approval and the close of escrow. It also provided for a lesser commission if the
property was sold to another following the bid-up procedures. Paragraph nine reads as
follows:
The Estate of LaVere Redfield agrees to pay to Carson Realty, H. E. Mattheus,
Licensed Nevada Real Estate Broker, a brokerage commission of 10% of the purchase
price if this offer be accepted and finally approved by the Court following probate
bid-up procedures, or 50% of said commission (pursuant to NRS 148.120) should
another offer be finally approved by the Court following said bid-up procedures.
In either event, the brokerage commission shall be paid in full on close of escrow.
The D & S offer was accepted by the Estate on February 23, 1979. An escrow was then
opened. On April 12, 1979, Maxit exercised its right of first refusal unconditionally and
without any contingencies or conditions, except to reserve its right to contest liability for
the broker's commission. The Estate accepted Maxit's offer.
After Maxit exercised its option, the Estate representative, Gerald Smith, who had been
dealing with D & S, took the position that the Estate would not pay the commission. Smith
understood that Maxit's exercise of its right of first refusal automatically negated any right,
under the D & S offer, that Carson Realty had to receive a commission. Maxit thereafter
opened its own escrow for the purchase of the property and the D & S escrow was terminated.
Failing to receive a commission, Carson Realty filed suit against Maxit and its assigns.
The district court concluded that Maxit was obligated to pay the commission specified in the
D & S offer and accordingly entered judgment in favor of Carson Realty. This was error.
If a vendor of property is obligated to pay a brokerage commission and remains so after a
right of first refusal option is exercised, then it is essential that the commission be included in
the offer exercising the right of first refusal. See City National Bank of Miami Beach v.
Lundgren, 307 So.2d 870 (Fla. 1975). It is clear, however, that application of this general rule
is not warranted by the facts of the present case.
Pursuant to paragraphs four and nine of the D & S offer, supra, Carson Realty's
entitlement to a commission at close of escrow was contractually dependent upon two
conditions precedent: {1) the non-exercise by Maxit of its right of first refusal; and {2) the
sale of the property to D & S or another party after court approval following bid-up
procedures.
was contractually dependent upon two conditions precedent: (1) the non-exercise by Maxit of
its right of first refusal; and (2) the sale of the property to D & S or another party after court
approval following bid-up procedures. Neither of the conditions were ever satisfied.
Moreover, Maxit's first refusal option was not subject to the bid-up procedures which were an
integral part of one of the conditions which actuated Carson Realty's right to a commission.
Carson Realty's right to a broker's commission is dependent upon the terms of its contract.
[T]he terms of the agreement govern the broker's right to compensation. Caldwell v.
Consolidated Realty & Management, 99 Nev. 635, 668 P.2d 284 (1983); see, also Fleshman
v. Hendricks, 93 Nev. 103, 560 P.2d 1350 (1977); Nollner v. Thomas, 91 Nev. 203, 533 P.2d
478 (1975). The agreement, by its own terms, did not obligate the Estate, or, consequently,
Maxit, to pay a broker's commission under the circumstances we have discussed. The district
court's decision that Maxit's offer must contain a provision for Carson Realty's brokerage
commission was incorrect. Accordingly, the district court's judgment is reversed.
____________
101 Nev. 27, 27 (1985) Barto v. Weishaar
BRENDA BARTO, Appellant, v. CHARLES WEISHAAR,
d/b/a MILEX PRECISION AUTO TUNEUP, Respondent.
No. 15163
January 3, 1985 692 P.2d 498
Appeal from order dismissing complaint; Eighth Judicial District Court, Clark County;
Stephen L. Huffaker, Judge.
Negligence based personal injury action was brought. The district court dismissed
complaint with prejudice, and plaintiff appealed. The Supreme Court held that where
suggestion of defendant's death was neither filed by nor identified successor representative
the 90-day limitation period for motion for substitution of party, on penalty of dismissal, was
never triggered.
Reversed and remanded.
Gentile & Massi, and Gene T. Porter, Las Vegas, for Appellant.
Morse-Foley, and Kevin C. Sewell, Las Vegas, for Respondent.
Parties.
Suggestion of death must either be made by successor in interest to the deceased or must identify the
successor representative and absent such information the suggestion does not trigger the
90-day period for seeking substitution of party, on penalty of dismissal; rejecting
Farmers Insurance Gr. v.
such information the suggestion does not trigger the 90-day period for seeking
substitution of party, on penalty of dismissal; rejecting Farmers Insurance Gr. v. District
Court of Sec. J.D., 181 Colo. 85, 507 P.2d 865. NRCP 25(a)(1).
OPINION
Per Curiam:
This is an appeal from an order granting respondent's motion to dismiss appellant's
complaint with prejudice. On December 19, 1980, appellant filed her complaint against
respondent, seeking, in part, recovery for personal injuries she allegedly sustained as a result
of respondent's negligence. Respondent subsequently answered the complaint, and the parties
pursued discovery.
On August 14, 1982, respondent died. Respondent's counsel filed a suggestion of death
upon the record, pursuant to NRCP 25(a)(1), on December 8, 1982. The suggestion of death
did not contain the name of respondent's successor representative. Thereafter, in April of
1983, respondent's counsel moved to dismiss appellant's complaint on the ground that she had
failed to effectuate substitution of a proper party within the ninety days prescribed by NRCP
25(a)(1).
1

Following a hearing, the district court denied the motion to dismiss, and allowed appellant
sixty days within which to effectuate substitution. Thereafter, on the sixtieth day following
the lower court's ruling, appellant filed a motion to substitute the public administrator of
Clark County, allegedly having located no other representative. On August 15, 1983, the
district court conducted another hearing on the matter and, having concluded that the public
administrator was not a proper party for substitution, dismissed appellant's complaint on the
ground that appellant failed to substitute timely a proper party litigant under NRCP 25(a)(1).
Appellant contends that the district court improperly dismissed her action because a
suggestion of death filed pursuant to NRCP 25(a)(1) must either be made by the successor in
interest to the deceased, or must identify the successor representative. Absent such
information, appellant contends, the suggestion of death is ineffective, and therefore
cannot operate to trigger the ninety-day filing limitation contained in NRCP 25{a){1).
____________________

1
NRCP 25(a)(1) provides 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 and, together with the notice of hearing, shall be served on the parties . . . Unless the
motion for substitution is made not later than 90 days after the death is suggested upon the record by
service of a statement of the fact of death as provided herein for the service of the motion, the action
shall be dismissed as to the deceased party. (Emphasis added.)
such information, appellant contends, the suggestion of death is ineffective, and therefore
cannot operate to trigger the ninety-day filing limitation contained in NRCP 25(a)(1). We
agree, and therefore we reverse the district court's order.
Whether the suggestion of death must be made by, or identify, the successor or
representative of the deceased is an issue which we have not previously addressed. In a
similar case, the federal appellate court in Rende v. Kay, 415 F.2d 983 (D.C. Cir. 1969),
interpreted the identical federal rule, FRCP 25(a)(1), and held that a suggestion of death
which was neither filed by nor identified a successor or representative of the deceased . . .
was ineffective to trigger the running of the 90-day period provided by [FRCP 25(a)(1)]. Id.
at 984. In examining the history of FRCP 25(a)(1), the court noted that the Advisory
Committee on the Rules of Civil Procedure plainly contemplated that the suggestion [of
death] emanating from the side of the deceased would identify a representative of the estate,
such as an executor or administrator, who could be substituted for the deceased as a party . .
.
2
Id. at 985. The court also reasoned that any other construction would open the door to a
tactical maneuver to place upon the plaintiff the burden of locating the representative of the
estate within 90 days. Id. at 986. The court concluded that no injustice would befall a
defendant as a result of this requirement.
We agree with the reasoning in Rende, and therefore reject the contrary approach urged by
respondent and followed by the Colorado Court in Farmers Insurance Gr. v. District Court of
Sec. J.D., 507 P.2d 865 (Colo. 1973). Because the suggestion of death in the present case was
neither filed by nor identified a successor or representative of the deceased, we hold that the
ninety-day limitation in NRCP 25(a)(1) was never triggered, and, therefore, the district court
improperly dismissed appellant's action.
3

____________________

2
The federal court of appeals also referred to federal form 30 which provides:
A.B. [describe as a party, or as executor, administrator, or other representative or successor of C.D.,
the decreased party] suggests upon the record, pursuant to Rule 25(a)(1), the death of C.D. [describe as
party] during the pendency of this action.
Suggested form 30, appended to the NRCP and approved of by NRCP 84, is identical to the federal form 30.

3
The Honorable John Mowbray voluntarily recused himself from consideration of this case.
____________
101 Nev. 30, 30 (1985) State Engineer v. Curtis Park
THE OFFICE OF THE STATE ENGINEER OF THE STATE OF NEVADA, DIVISION OF
WATER RESOURCES, PETER G. MORROS, State Engineer and LAS VEGAS VALLEY
WATER DISTRICT, Appellant, v. CURTIS PARK MANOR WATER USERS
ASSOCIATION, Respondents.
No. 15227
January 3, 1985 692 P.2d 495
Appeal from order on remand reversing the decision of the State Engineer, Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Water user's association petition for review of state engineer's decision to revoke
temporary well permits. On remand, 98 Nev. 275, 646 P.2d 549, the district court found that
engineer abused his discretion and ordered the permits made permanent and expanded, and
engineer and water district appealed. The Supreme Court, held that: (1) district court violated
law of the case doctrine by failing to adhere to Supreme Court's directions on remand; (2)
district court may not substitute its judgment for that of engineer in granting and extending
permanent water rights; and (3) since water district had water available to the service
association members, it was not abuse of discretion to revoke the temporary permits.
Brian McKay, Attorney General, George Benesch, Deputy Attorney General, Carson City;
Robert J. Miller, District Attorney, Susan L. Johnson, Deputy District Attorney, Las Vegas,
for Appellants.
Nitz, Schofield & Walton, Las Vegas, for Respondents.
Doctrine of law of the case provides that where an appellate court states a principle of law in deciding a
case, that rule becomes the law of the case and is controlling both in the lower court and on subsequent
appeals, as long as the facts are substantially the same.
Where on prior appeal in action challenging state engineer's revocation of temporary well permits the
appellate court held that district court review was limited to determining abuse of discretion and relied on
agency-specific judicial review provisions of Administrative Procedures Act and held that district court
could not grant equitable relief to permit owner, the district court, on remand, violated law of the case
doctrine in failing to address where there was substantial evidence to support engineer's decision and by
expanding the permits. NRS 233B.140, subd. 5, 533.450.
3. Waters and Water Courses.
District court is not free to substitute its judgment for that of state engineer in granting and extending
permanent water rights. NRS 534.120.
When an order of the state engineer is challenged, the reviewing court is bound by the same standard of
review as the lower court. NRS 534.120.
In reviewing order of state engineer for abuse of discretion, function of appellate court is to review the
evidence on which the engineer based his decision and ascertained whether that evidence supports the
order and if so, the court is bound to sustain the engineer's decision. NRS 534.120.
Since water district had water available to service mobile home park, which held temporary well permits,
the state engineer did not abuse his discretion in revoking the temporary permits. NRS 534.120.
OPINION
Per Curiam:
The State Engineer and the Las Vegas Valley Water District jointly appeal the district
court's finding on remand from Las Vegas Valley Water District v. Curtis Park, 98 Nev. 275,
646 P.2d 549 (1982), that the State Engineer abused his discretion in revoking respondents
temporary water permits. Appellants contend the district court did not follow the law of the
case as outlined in our first opinion. We agree and now hold the State Engineer did not abuse
his discretion as there is substantial evidence in the record to support his order revoking the
temporary water permits.
The facts of this matter are undisputed and have not changed since Curtis Park; both
parties have adopted them as presented in that opinion.
[Headnotes 1, 2]
In Curtis Park, we held that the district court's review of the State Engineer's revocation
order is a limited judicial review for abuse of discretion. Curtis Park, 98 Nev. at 278, 646
P.2d at 551. We decline[d] to rule on whether the record indicat[ed] an abuse of discretion
by the State Engineer. Id. Rather, we determined the district court had no authority to grant
equitable relief to the Curtis Park Homeowners Association, which has owned the temporary
well permits for over twenty years before the water district could service that area.
In support of our holding, we relied on the agency-specific judicial review provision of
NRS 533.450, the Nevada Administrative Procedure Act non-contested case judicial review
provision of NRS 233B.140{5), and our previous decision in Revert v. Ray, 95 Nev. 7S2
sion of NRS 233B.140(5), and our previous decision in Revert v. Ray, 95 Nev. 782, 603 P.2d
262 (1979). This specific guidance was to enable the district court to review the State
Engineer's order properly on remand.
The doctrine of the law of the case provides that where an appellate court states a principle
of law in deciding a case, that rule becomes the law of the case, and is controlling both in the
lower court and on subsequent appeals, as long as the facts are substantially the same.
Andolino v. State, 99 Nev. 346, 350, 662 P.2d 631 (1983) (citations omitted).
The district court, then, was bound by NRS 533.450, NRS 233B.140(5), and Revert in its
subsequent review of the State Engineer's order.
On remand, the district court reached the same conclusion it had reached in its first review.
It rescinded the Engineer's revocation order, reinstated the temporary well permits making
them permanent, and ordered the new permits to be expanded from 145 lots originally
serviced to the 257 lots now in the subdivision.
In so doing, the lower court did not perform a limited review based on our remand
instructions. Rather, it found the State Engineer abused his discretion by not holding a
hearing prior to the revocation order, even though none was required under the governing
water law provisions, NRS 534.120. The lower court did not address whether there was
substantial evidence to support the State Engineer's decision.
[Headnote 3]
In failing to perform the limited review we ordered it to perform, the district court abused
its discretion. In transforming the well permits from temporary to permanent and in
expanding the scope of the permits, the lower court usurped the Engineer's power. A district
court is not free to substitute its judgment for that of the Engineer in granting and extending
permanent water rights. Revert, 95 Nev. at 786, 603 P.2d at 264.
[Headnotes 4, 5]
When an order of the State Engineer is challenged, this court is bound by the same
standard of review as the lower court. Gandy v. State ex rel. Div. Investigation, 96 Nev. 281,
283, 607 P.2d 581, 582 (1980). In reviewing the order for an abuse of discretion, our function
is to review the evidence upon which the Engineer based his decision and ascertain whether
that evidence supports the order. Id. If so, this court is bound to sustain the Engineer's
decision. Id.
[Headnote 6]
Our review of the record on appeal indicates the State Engineer based his decision to
revoke the temporary well permits on the availability of water from the Las Vegas Valley
Water District.
availability of water from the Las Vegas Valley Water District. The Engineer's revocation
order was issued pursuant to NRS 534.120, which specifically grants the Engineer discretion
to revoke temporary permits when water can be furnished by an entity such as a water
district. . . . In Curtis Park we noted the permit contained the express provision that this
permit . . . is further subject to revocation when water is available from the Las Vegas Water
District. . . .' Curtis Park, 98 Nev. at 276, 646 P.2d at 549. As the Las Vegas Valley Water
District has water available to service respondents, the State Engineer did not abuse his
discretion in revoking the temporary well permits.
Accordingly, the judgment is reversed and the case is remanded to the district court for
reinstatement of the State Engineer's revocation order.
____________
101 Nev. 33, 33 (1985) Bailey v. State
LINDA BAILEY aka LINDA HARRELL, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 15301
January 3, 1985 692 P.2d 1293
Appeal from judgment of conviction of grand larceny, Fourth Judicial District Court, Elko
County; Joseph O. McDaniel, Judge.
Defendant was convicted of grand larceny in the district court and defendant appealed. The
Supreme Court held that jury's consideration of exhibit which had not been offered or
admitted into evidence and may have influenced jury was prejudicial error.
Barbara Byrne, Public Defender, Elko County, for Appellant.
Brian McKay, Attorney General, Carson City; James Wilson, District Attorney, and John
S. McGimsey, Deputy District Attorney, Elko, for Respondent.
1. Criminal Law.
A jury may consider only exhibits received as evidence in the case. NRS 175.441, subd. 1.
2. Criminal Law.
In trial for theft of diamond ring, wherein evidence of description of diamond ring taken by defendant to
jewelry store for appraisal was conflicting, jury's consideration of written appraisal containing description
of the ring was prejudicial error, where appraisal had neither been offered nor admitted into evidence and
may have influenced jury in its finding of guilt.
101 Nev. 33, 34 (1985) Bailey v. State
OPINION
Per Curiam:
This is an appeal from a judgment of conviction of grand larceny. For the reasons
expressed below, we reverse.
Appellant was charged with the theft of a diamond ring from a jewelry store in Elko,
Nevada. Appellant had been seen in the jewelry store at about the time the ring was stolen,
but there were no witnesses to the actual theft. The prosecution attempted to prove that the
day after the ring was stolen in Elko, appellant took the ring to a jewelry store in Las Vegas,
Nevada, for an appraisal. The evidence at trial was conflicting, however, on the question of
whether the ring taken to the Las Vegas store was the same ring which had been stolen from
the Elko store.
After closing argument, the district court sent the jury to deliberate with several exhibits,
including Exhibit 8, although that exhibit had neither been offered nor admitted into
evidence. Exhibit 8 was a written appraisal from the Las Vegas store; the exhibit contained a
description of the ring taken by appellant to the Las Vegas store.
[Headnote 1]
Appellant contends that the district court committed prejudicial error by allowing the jury
to consider Exhibit 8.
1
We agree. It is fundamental that a jury may only consider exhibits
received as evidence in the case. See NRS 175.441(1).
[Headnote 2]
The state essentially concedes that error occurred, but the state argues that the error was
harmless. As mentioned above, the evidence was conflicting in regard to the description of
the ring taken to the Las Vegas store. Furthermore, the other evidence at trial cannot be
considered overwhelming. Thus, Exhibit 8 may well have influenced the jury in its finding of
guilt. Accordingly, we hold that the error was not harmless, and we reverse and remand for a
new trial.
In light of our conclusion above, other contentions raised by appellant need not be
addressed at this time.
____________________

1
The parties agree that Exhibit 8 was in fact delivered to the jury room. It appears that the mistake was
completely inadvertent.
____________
101 Nev. 35, 35 (1985) Turpel v. Sayles
EDNA TURPEL, Appellant, v. SANDRA SAYLES, JOHN MINIFEE, ROBERT SHIELDS,
JUDY SHIELDS, Respondents.
No. 14914
January 3, 1985 692 P.2d 1290
Appeal from summary judgment in favor of defendant. Eighth Judicial District Court,
Clark County, Thomas A. Foley, Judge.
Would-be rescuer who was injured when she attempted to warn and rescue occupants of
condominium unit on fire brought action against owner of condominium unit alleging that her
injuries were proximately caused by negligent failure of owner to install a smoke detector
device in condominium. The district court entered a summary judgment in favor of owner,
and an appeal was taken. The Supreme Court held that would-be rescuer could recover from
condominium owner, without regard to ordinary standards for contributory negligence or
assumption of the risk, if it could be shown that owner, through her negligence in failing to
install a smoke detector device in condominium, which would have allegedly eliminated need
for rescuer to warn family living in condominium, had been cause of foreseeable injuries to
rescuer.
Pomeranz, Crockett & Myers, Las Vegas, for Appellant.
Harding & Dawson, Abbatangelo & Watkins, Las Vegas, for Respondents.
Negligence.
Would-be rescuer who was injured when she attempted to warn and rescue occupants of condominium
unit on fire could recover from condominium owner, without regard to ordinary standards for contributory
negligence or assumption of the risk, if it could be shown that owner, through her negligence in failing to
install a smoke detector device in condominium, which would have allegedly eliminated need for rescuer to
warn family living in condominium, had been cause of foreseeable injuries to rescuer.
OPINION
Per Curiam:
Edna Turpel, plaintiff below, alleged that during the night of August 16, 1978, a fire
erupted in a condominium unit owned by defendant Sandra Sayles. According to Turpel's
amended complaint, she was injured when she attempted to warn and rescue the occupants of
the condominium.
occupants of the condominium. Turpel claimed that her injuries were proximately caused by
the negligent failure of defendant Sayles to install a smoke detector device in the
condominium, which would have eliminated the need for her to warn the family living in the
condominium.
Sayles moved for summary judgment on the sole ground that as to Sayles, Turpel was a
mere licensee, to whom Sayles owed no duty of due care under our decision in Fuchs v.
Mapes, 74 Nev. 366, 332 P.2d 1002 (1958). Sayles did not challenge Turpel's allegation of
negligent conduct, or the allegation that such negligence was the proximate cause of her
injuries. Turpel, answering Sayles' motion for summary judgment, asserted that the
application of the no duty rule was counter to the decision announced by this Court in
Drummond v. Mid-West Growers, 91 Nev. 698, 542 P.2d 198 (1975). In Drummond we held
that a plaintiff who has placed himself in a position of danger in order to rescue another may
recover from a negligent defendant without application of the ordinary standards for
contributory negligence or assumption of the risk, and is allowed to take actions which in
other circumstances might be considered negligent. Id. at 706, 707, 542 P.2d at 204.
The trial court granted summary judgment in favor of Sayles and certified the judgment
pursuant to NRCP 54(b). Construing, as we must, the pleadings and documentary evidence in
the light most favorable to the plaintiff, Mullis v. Nevada National Bank, 98 Nev. 510, 654
P.2d 533 (1982), we cannot agree that such a result is consonant with basic principles of tort
law, or consistent with our decision in Drummond.
As Justice Cardozo put the matter of duty toward one who goes to the aid of one
endangered by a negligent act: The wrong that imperils life is a wrong to the imperiled
victim; it is a wrong also to his rescuer. Wagner v. International Ry. Co., 133 N.E. 437, 437
(N.Y. 1921). As another court has held:
Where a defendant's negligent act, of commission or omission, has created a condition
or situation which involved urgent and imminent peril and danger, to life or property, of
himself or of others, those acts of negligence are also negligence in relationship to
all others who, in the exercise of ordinary care for their own safety under the
circumstances, short of rashness and recklessness, may attempt, successfully or
otherwise, to rescue such endangered life or property, by any means reasonably
appropriate to the purpose. . . .
Walker Hauling Company v. Johnson, 139 S.E.2d 496, 499 (Ga.App. 1964). See also Neff v.
Woodmen of World Life Insurance Society, 529 P.2d 294 (N.M.App.), cert. denied, 529 P.2d
274 (N.M. 1974).
In Swift & Company v. Baldwin, 299 S.W.2d 157 (Tex.Civ.App. 1957) the plaintiff was
injured while attempting to secure a sign which the plaintiff feared would fall on school
children who patronized the establishment. The owner of the sign claimed that it owed no
duty to the plaintiff, predicated on the property law argument that the highest position that
plaintiff could occupy was that of an invitee; [and] plaintiff was charged with notice of the
open and obvious dangers. Id. at 160. The court refused to apply the concept on the basis
that [w]e do not think the question of invitee' or licensee' or no duty' is involved in this
case. We think the question presented here was whether or not the school children were in a
position of peril, and whether or not the defendant acted as a man of ordinary prudence in
going to their rescue. Id.
There is no question that under traditional rules governing property owners' liability for
negligence, plaintiff has not alleged facts which would entitle her to recover. In Fuchs v.
Mapes, supra, we held that before a duty of due care may be imposed toward one coming
onto the property for the express benefit of the occupier, [i]t is essential . . . that the visitor
enter upon the premises in question under such circumstances as to give him reason to
suppose that the place has been made safe to receive him or . . . as to create an implied
representation to that effect. 74 Nev. at 368, 332 P.2d at 1004. Furthermore, the general rule
was that once a lessee had taken possession of property, the landlord was not subject to
liability, whether to his lessee or others coming onto the land, for physical harm caused by a
dangerous condition on the premises, except in certain specific circumstances. See, e.g.,
Weaver v. Shell Oil Co., 91 Nev. 324, 535 P.2d 787 (1975), Seavy v. I.X.L. Laundry Co., 60
Nev. 324, 108 P.2d 853 (1941). See generally 2 Restatement of Torts 2d 355 to 362
(1965). However, as other courts have concluded, we are not satisfied that the traditional
principles of property law are appropriately applied to analysis of a tort claim in a twentieth
century urban residential setting.
1

As the Supreme Judicial Court of Massachusetts has observed, Common law rules
defining a landowner's liability in negligence to people coming onto the land reflected the
needs of an agrarian society," in which the "landowner was a petty sovereign within his
boundaries," and "[t]he character of his duty to an injured party varied with the party's
relationship with the sovereign," whether trespasser, licensee, invitee or tenant.
____________________

1
J. Skelly Wright, writing for the Court of Appeals for the District of Columbia Circuit, noted in 1970 with
regard to landlord-tenant law generally, that Some courts have realized that certain of the old rules of property
law governing leases are inappropriate for today's transactions. . . . Proceeding piecemeal has, however, led to
confusion where decisions are frequently conflicting, not because of a healthy disagreement on social policy, but
because of the lingering impact of rules whose policies are long since dead. Javins v. First National Realty
Corporation, 428 F.2d 1071, 1074-1075 (D.C.Cir.), cert. denied sub nom. First National Realty Corp. v. Javins,
400 U.S. 925 (1970).
agrarian society, in which the landowner was a petty sovereign within his boundaries, and
[t]he character of his duty to an injured party varied with the party's relationship with the
sovereign, whether trespasser, licensee, invitee or tenant. Young v. Garwackie, 402 N.E.2d
1045, 1047 (Mass. 1980). See also Clarke v. O'Connor, 435 F.2d 104 (D.C. Cir. 1970).
The Supreme Court of New Hampshire similarly found that attempts to analyze a tort
claim under traditional principles of property law could no longer be justified under all
circumstances. Sargent v. Ross, 308 A.2d 528 (N.H. 1973). Although the parties had framed
the issue in terms of whether the rule of nonliability should prevail or whether the facts of
this case can be squeezed into the negligent repair or some other exception to the general rule
of landlord immunity, 308 A.2d at 530, the court determined instead that it was time for the
landlord's limited tort immunity to be relegated to the history books where it more properly
belongs. Id. at 533. The court held that rather than issues of control, the focus of inquiry
regarding a condition claimed to be unsafe from the onset should have centered upon the
unreasonableness [of the condition] and the unreasonableness of failing to take precautionary
measures to reduce the danger. Id. at 532. Similarly, the court found, the truly pertinent
questions involved in determining who should bear responsibility for the loss in this case
were clouded by the question of whether the accident was caused by a hidden defect or secret
danger, although [t]he mere fact that a condition is open and obvious . . . does not preclude
it from being unreasonably dangerous. Id. The court concluded:
Henceforth, landlords as other persons must exercise reasonable care not to subject
others to an unreasonable risk of harm. A landlord must act as a reasonable person
under all of the circumstances including the likelihood of injury to others, the probable
seriousness of such injuries, and the burden of reducing or avoiding the risk. We think
this basic principle of responsibility for landlords as for others best expresses the
principles of justice and reasonableness upon which our law of torts is founded.' The
questions of control, hidden defects and common or public use, which formerly had to
be established as a prerequisite to even considering the negligence of a landlord, will
now be relevant only inasmuch as they bear on the basic tort issues such as the
foreseeability and unreasonableness of the particular risk of harm.
Id. at 534 (citations omitted).
In accord is Pagelsdorf v. Safeco Insurance Company of America, 284 N.W.2d 55 (Wis.
1979), in which the Supreme Court of Wisconsin also elected to "[abrogate] the landlord's
general cloak of immunity at common law" and held that "a landlord must exercise
ordinary care toward his tenant and others on the property with permission."
Wisconsin also elected to [abrogate] the landlord's general cloak of immunity at common
law and held that a landlord must exercise ordinary care toward his tenant and others on the
property with permission. 284 N.E.2d at 56. See also Cummings v. Prater, 386 P.2d 27
(Ariz. 1963); Rosales v. Stewart, 169 Cal.Rptr. 660 (Cal.App. 1980); Stephenson v. Warner,
581 P.2d 567 (Utah 1978).
As has been pointed out, analysis of the issue in terms of duty, as that analysis has
traditionally been applied in this area, merely masks the underlying issues, for
the concept of duty' known to the law of torts is a rather artificial one, and . . . in
deciding whether a duty existed, the real question to be answered is whether the law
should safeguard the plaintiff from the consequences of the defendant's conduct. As
Dean Prosser has put it
[I]t should be recognized that duty' is not sacrosanct in itself, but only an
expression of the sum total of those considerations of policy which lead the law to
say that the particular plaintiff is entitled to protection. . . .'
Clarke v. O'Connor, supra, 435 F.2d at 106.
2

In accord with those courts which have discerned no sound policy reason in the modern
social context for retaining the ancient exception for landlords or property owners from the
general application of the basic principles of tort law, we find no basis for excusing the
landlord in this case from the requirement that she defend the allegation that she has, through
her negligence, been the cause of foreseeable injuries to the plaintiff for which she should
assume liability. Nor do we see a basis in policy for excluding this plaintiff from the benefits
of the rescue doctrine, as they would be applied in any other tort case, solely on the ground
that the allegedly negligent defendant is a property owner.
Accordingly, we reverse the summary judgment granted by the district court and remand
for further proceedings consistent with this opinion.
____________________

2
This Court has, in other contexts, not been hesitant to abrogate tort immunity which had the effect of
barring relief for a class of people based on similar concepts of status. See, e.g., Laakonen v. District Court, 91
Nev. 506, 538 P.2d 574 (1975) (automobile guest statute invalid under equal protection clause); Rupert v.
Stienne, 90 Nev. 397, 528 P.2d 1013 (1974) (abrogating common law doctrine of interspousal tort immunity).
____________
101 Nev. 40, 40 (1985) Tropicana Hotel v. Speer
TROPICANA HOTEL CORPORATION, a Dissolved Nevada Corporation; MITZI
STAUFFER BRIGGS, as Trustee of TROPICANA HOTEL CORPORATION a Dissolved
Nevada Corporation, and MITZI STAUFFER BRIGGS, Individually, Appellants and
Cross-Respondents, v. NILA SPEER, Executrix of the Estate of Lloyd D. Speer, a/k/a DON
SPEER, Deceased, Respondent and Cross-Appellant.
No. 13655
January 4, 1985 692 P.2d 499
Appeal and cross-appeal from judgment, Eighth Judicial District Court, Clark County;
Howard W. Babcock, Judge.
Former employee filed suit against former employer alleging that oral employment
contract had been breached by his termination without cause and that the party with whom he
had negotiated regarding his employment breached an oral stock option agreement. The
district court found that the binding oral agreements existed and that the employer had
breached the employment contract and awarded former employee liquidated damages but
found that the statute of frauds rendered the stock option agreement unenforceable.
Cross-appeals were taken. The Supreme Court, Gunderson, J., held that: (1) the parties never
reached an agreement on the transfer of stock; (2) no employment contract arose between the
parties; and (3) even if a binding employment agreement had existed, former employee did
not demonstrate that it had been breached.
Affirmed in part and reversed in part.
Shearing, D. J., dissented.
Oshins, Brown & Singer, Las Vegas, for Appellants and Cross-Respondents.
Morse-Foley, and Christopher H. Byrd, Las Vegas, for Respondent and Cross-Appellant.
1. Contracts.
When important terms remain unresolved, binding agreement cannot exist.
2. Master and Servant.
Parties who contemplated employment contract never reached agreement on transfer of stock where they
never reached meeting of minds of precise form of transfer and counsel could not work out tax
consequences to their satisfaction.
Parties who contemplated employment contract never consummated binding agreement where important
terms remained unresolved, oral agreement was incomplete, and parties had contemplated
consummation by written agreement which contracting party to be employed
rejected, clearly demonstrating his intent not to be immediately bound.
agreement was incomplete, and parties had contemplated consummation by written agreement which
contracting party to be employed rejected, clearly demonstrating his intent not to be immediately bound.
4. Contracts.
Generally, performance by party after agreement has been reached but before writing has been prepared
is regarded as some evidence that writing was only memorial of binding agreement; however, where
evidence clearly shows that party performing did not consider agreement to be binding, fact that he began
performance does not compel contrary conclusion.
Even assuming that parties who contemplated employment contract entered into binding agreement,
employee did not demonstrate that such agreement had been breached by the termination of two of his
trusted associates which allegedly undermined his ability to perform his duties to such an extent as to
amount to constructive discharge, since continued employment of those associates was never suggested as
term of any proposed agreement.
In absence of understanding requiring continued employment of plaintiff's trusted associates, termination
of two of those associates over plaintiff's objections could not be regarded as invasion of plaintiff's
authority sufficient to amount to a constructive discharge.
OPINION
By the Court, Gunderson, J.:
This appeal arises out of the brief association of Donald Speer
1
with Tropicana Hotel. In
July 1975 Mitzi Stauffer Briggs acquired a controlling interest in the Tropicana Hotel
Corporation, the managing entity of Tropicana Hotel. Since she had no experience in the
hotel or casino industry, Briggs looked for a competent general manager who could restore
the hotel to its former prosperity. She offered the position to Donald Speer, general manager
at the Desert Inn.
Speer indicated that he would accept the position only if, in addition to a generous salary,
he could have equity in the Tropicana Hotel Corporation. After some preliminary discussions,
Briggs invited Speer, his counsel and her counsel to her home in Atherton, California, in the
hope of concluding an agreement. It is undisputed that agreement was reached on the terms of
the employment contract; the parties could not agree, however, on how the stock should be
transferred.
After Speer returned to Las Vegas, he left his position at the Desert Inn and began working
as general manager at the Tropicana Hotel.
____________________

1
Donald Speer died while the proceedings below were pending. Nila Speer, his widow and the executrix of
his estate, was substituted for him in the action.
cana Hotel. Two months later Briggs signed an employment agreement prepared by her
attorneys according to drafts of the Atherton discussions, and forwarded it to Speer. Speer
never signed the agreement. He testified at trial that his counsel advised him not to sign it
until a satisfactory stock option agreement was prepared and signed by Briggs.
In March 1976 a culinary strike forced the hotel to close. Disagreements over hotel
management developed between Speer and Briggs, and after two of Speer's trusted
subordinates were fired by the executive committee, Speer left the hotel. The parties
disagreed at trial over whether Speer had resigned or whether he had been terminated. Speer
filed suit against the Tropicana Hotel Corporation, alleging that an oral employment contract
reached at Atherton was breached by his termination without cause. He later amended his
complaint to add a cause of action against Briggs for breach of an oral stock option
agreement. The district court, sitting without a jury, found that binding oral agreements
existed, and that Tropicana had breached the employment contract. It awarded Speer
liquidated damages, as provided in the employment contract, for his termination without
cause; however, it found that the statute of frauds rendered the stock option agreement
unenforceable.
2
Both parties have appealed.
We turn first to the stock option transfer. The district court determined that the stock
option agreement was unenforceable under NRS 104.8319(4), the securities statute of frauds.
We need not decide here whether NRS 104.8319(4) applies to stock option agreements
executed in connection with employment contracts, because our examination of the record
compels us to conclude that no agreement on the transfer of stock was ever reached.
[Headnotes 1, 2]
The record shows that at Atherton the parties merely agreed that Speer would receive
$100,000 worth of points, or approximately 3.2% of Brigg's holding. The parties could not
agree on the precise form of the transfer, because Speer wished to be left with $100,000 after
the payment of his capital gains tax, and counsel could not work out the tax consequences to
their satisfaction. Even after the meeting at Atherton, numerous drafts of proposed
agreements circulated between counsel but were never satisfactory to both parties. When
important terms remain unresolved, a binding agreement cannot exist. See Loma Linda Univ.
v. Eckenweiler, 86 Nev. 381, 384, 469 P.2d 54, 56 (1970). Since the parties never reached a
meeting of the minds on the transfer of the stock options, we affirm, albeit on a different
ground, the district court's decision against Speer on this cause of action.
____________________

2
The district court found that the statute of frauds did not preclude enforcement of the oral employment
contract because there was a writing signed by Briggs, the party to be charged. NRS 111.220.
the stock options, we affirm, albeit on a different ground, the district court's decision against
Speer on this cause of action.
We next turn to Tropicana's challenge to the district court's award of liquidated damages to
Speer for breach of his oral employment contract. Because we conclude that there was no
consummation of a binding agreement, we reverse judgment for Speer.
The record shows that during their negotiations the parties contemplated that any
agreement concerning Speer's employment would become effective only when reduced to
writing and signed by the parties.
3
At trial Speer as well as Briggs admitted that the terms of
the proposed written agreement corresponded to the terms agreed on at Atherton.
Nevertheless, on advice of counsel Speer decided not to sign the draft until Briggs signed a
satisfactory stock option agreement. Clearly, Speer withheld his signature to pressure Briggs
to consummate the stock option transfer, and his conduct is inconsistent with his assertion
that the oral agreement reached at Atherton was intended to be immediately binding. Had the
proposed written agreement been merely a memorialization of a binding oral contract, Speer's
signature would not have been of sufficient legal significance to exert any influence on
Briggs.
We have previously stated that since some measure of agreement must usually be reached
before a written draft is prepared, the evidence that the parties intended to be presently bound
must be convincing and subject to no other reasonable interpretation. Dolge v. Masek, 70
Nev. 314, 319, 268 P.2d 919, 921 (1954). In Dolge the language of the contract convinced us
that the parties could not have intended to be presently bound, and here the conduct of Speer,
the party seeking to enforce the alleged contract, compels the same conclusion.
[Headnote 3]
A similar situation confronted us in Loma Linda Univ. v. Eckenweiler, 86 Nev. 381, 469
P.2d 54 (1970). Negotiations regarding plaintiff's employment contract continued during his
employment by the University.
____________________

3
This is shown by the testimony of Speer himself.
Counsel for Tropicana: Mr. Speer, when you left the Atherton meeting, was it your understanding that a
written contract embodying the terms of your employment contract as well as the points would be drawn
up and signed by the parties?
Speer: I did.
Counsel for Tropicana: Mr. Speer, it was always your intention, was it not, both preAtherton, at Atherton
and postAtherton that you would have a written contract or that you would be protected as far as your
position as general manager at the Tropicana Hotel; is that true?
Speer: That's true.
employment by the University. A written agreement was prepared but rejected by the
plaintiff. Neither party signed the agreement. After plaintiff's employment was terminated, he
attempted to enforce an alleged oral agreement regarding severance pay. We held that even
accepting the district court's view that the parties had reached a meeting of the minds on the
issue of severance pay, judgment for plaintiff had to be reversed. The proposed written
agreement was an offer by the University which plaintiff had declined to accept. Important
terms remained unresolved and the oral agreement was incomplete; moreover, the parties had
contemplated consummation by written agreement and plaintiff himself had rejected the
written contract.
4
Similarly, since Speer refused to sign the written draft and clearly
demonstrated his intent not to be immediately bound, no contract arose between the parties.
[Headnote 4]
Speer contends that the fact that he commenced his employment at the Tropicana Hotel
before a written contract was even prepared shows that he regarded the oral employment
agreement as binding. Generally, performance by a party after agreement has been reached
but before a writing has been prepared is regarded as some evidence that the writing was only
a memorial of a binding agreement. See Micheletti v. Fugitt, 61 Nev. 478, 134 P.2d 99
(1943); 1 Corbin on Contracts 30 (1963). However, where the evidence clearly shows that
the party performing did not consider the agreement to be binding, the fact that he began
performance does not compel a contrary conclusion.
[Headnotes 5, 6]
Moreover, even assuming arguendo that a binding agreement existed, Speer has not
demonstrated that it was breached. The district court determined that the termination of two
of Speer's trusted associates by Briggs and the executive committee so undermined
Speer's ability to perform his duties that it amounted to a constructive discharge.
____________________

4
Speer argues that Loma Linda is distinguishable because the oral agreement was incomplete while the
district court found that he and Tropicana had reached complete agreement on all terms of the employment
contract. Firstly, we are of the view that even if the oral agreement in Loma Linda had been complete, the
parties' expectation that the agreement would be consummated by a writing and plaintiff's rejection of the written
agreement were sufficient to support the result. Additionally, the employment agreement between Speer and
Briggs can only be regarded as complete if it is severable from the stock option transfer. The district court found
that the two agreements constituted separate contracts. In light of Speer's testimony that his signature on the
employment agreement was contingent on Briggs's signature on a satisfactory stock option agreement, we find
this determination puzzling. Even assuming the divisibility of the two proposed agreements, however, a binding
contract never came into force because the parties contemplated that the employment agreement would be
formally executed and Speer frustrated that expectation.
trusted associates by Briggs and the executive committee so undermined Speer's ability to
perform his duties that it amounted to a constructive discharge. We do not find this theory
persuasive. In spite of protracted negotiations, the continued employment of members of
Speer's team was never suggested as a term of any proposed agreement. In the absence of
such an understanding, the termination of the two men over Speer's objections cannot be
regarded as an invasion of Speer's authority sufficient to amount to a constructive discharge.
The cases cited by Speer in which a constructive discharge was found are inapposite. In
Rudman v. Cowles Communications, Inc., 280 N.E.2d 867 (N.Y. 1972), plaintiff's contract
provided that he was to be in charge of editorial decisions, yet he was made subordinate to the
most junior editors. In Carlson v. Ewing, 54 So.2d 414 (La. 1951), the owner of a radio
station systematically abused and fired employees and in other ways obstructed the general
manager's efforts to run the station. The actions of Briggs and the executive committee
simply do not rise to this level of interference.
We have reviewed the other contentions of the parties and have found them to be without
merit. Accordingly, we affirm that part of the district court's decision denying Speer damages
for breach of an alleged stock option agreement. We reverse judgment for Speer on the
alleged employment agreement, and direct that judgment be entered in favor of appellants.
Manoukian, C.J., Springer and Steffen, JJ., concur.
Shearing, D.J., dissenting in part:
I dissent because there is substantial evidence in the record to support the trial court's
findings that there was a consummation of a binding agreement between Speers and
Tropicana and that that agreement was breached by the Tropicana. The testimony quoted in
the majority opinion is out of context and only a minute part of the testimony presented at
trial. The majority has substituted its own findings of fact for that of the trial judge who had
the opportunity to see and hear the witnesses and to judge their credibility.
I would affirm the district court's judgment awarding Speer damages for breach of the
employment contract, as well as the district court's decision denying Speer damages for
breach of an alleged stock option agreement.
1

____________________

1
The Governor designated The Honorable Miriam Shearing, Judge of the Eighth Judicial District Court, to
sit in the place of The Honorable John C. Mowbray, Justice, who voluntarily disqualified himself. Nev. Const.
art. 6 4.
____________
101 Nev. 46, 46 (1985) Petrocelli v. State
TRACY PETROCELLI, Appellant, v. THE
No. 14468
January 4, 1985 692 P.2d 503
Appeal from judgment of conviction upon jury verdict of first degree murder and from
imposition of death penalty. Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Defendant was convicted in the district court of first degree murder, and he appealed. The
Supreme Court, Steffen, J., held that: (1) trial court committed no reversible error in
conveying the concept of reasonable doubt by referring to 97 yards of a 100-yard football
field; (2) evidence of collateral offense, namely defendant's allegedly accidental killing of his
girl friend by .22 caliber semiautomatic pistol which was same gun used to kill victim was
relevant to prove absence of accident; (3) felony murder statute is facially constitutional; (4)
instruction regarding possibility of defendant's pardon of parole did not violate statute
governing evidence admissible in penalty hearing; and (5) sentence of death was not
excessive or disproportionate to penalty imposed in similar cases.
Affirmed.
[Rehearing denied March 19, 1985]
David G. Parraguirre, Public Defender, Jane G. McKenna, Deputy Public Defender,
Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
District court should refrain from elaborating on statutory definition of reasonable doubt for purposes of
clarification or otherwise. NRS 175.211.
2. Criminal Law.
Where there was neither advantage to State nor prejudice to defendant in trial court's comments on
reasonable doubt, to wit, referring to 97 yards of a 100-yard football field, and trial judge twice read
statutory definition of reasonable doubt to jury, it committed no reversible error in conveying concept of
reasonable doubt. NRS 175.211.
3. Criminal Law.
In prosecution for murder, state appropriately requested district court's permission to raise collateral
offense, namely, defendant's allegedly accidental killing of his girl friend, via a hearing outside presence of
jury and trial judge properly weighed probative value of proffered evidence against its prejudicial effect in
determining its admissibility. NRS 48.045, subd 2.
4. Criminal Law.
In prosecution for murder, evidence of collateral offense, namely defendant's allegedly accidental killing
of his girl friend by .22 caliber semiautomatic pistol which was same gun used to kill victim was relevant to
prove absence of accident. NRS 48.045, subd. 2.
5. Criminal Law.
Before evidence of a prior bad act can be admitted, state must show, by plain, clear, and convincing
evidence that defendant committed the offense.
6. Criminal Law.
In prosecution for murder, State properly demonstrated quality of its collateral offense evidence, namely,
defendant's allegedly accidental killing of his girl friend, by calling eyewitness to that killing on rebuttal.
7. Criminal Law.
Probative value of collateral evidence of defendant's allegedly accidental killing of his girl friend
outweighed its prejudicial effect in prosecution for murder, where the two killings involved the same gun
and the same defendant.
8. Criminal Law.
Admission of evidence is within trial court's sound discretion and Supreme Court will not disturb lower
court's determination when it is not manifestly wrong.
9. Homicide.
Felony murder statute is facially constitutional and was applied constitutionally in prosecution for
murder, notwithstanding defendant's contention that jury's consideration of underlying felony of robbery as
an aggravating circumstance constituted reversible error. NRS 200.030, 200.033, 200.033, subds. 2,
4.
10. Homicide.
A defendant convicted of felony murder will not automatically receive the death penalty merely because
he initially faces one aggravating circumstance; jury is free to find that any mitigating circumstance
outweighs that aggravating factor and is not required to automatically impose death. NRS 200.035.
11. Homicide.
Instruction regarding possibility of pardon or parole was relevant to defendant's death sentence for
murder. NRS 175.161, subd. 7, 175.552.
12. Homicide.
Instruction regarding possibility of defendant's pardon or parole did not violate statute governing
evidence admissible in penalty hearing after conviction for first degree murder. NRS 177.055, subd.
2(c).
13. Criminal Law.
At penalty hearing following defendant's conviction for first degree murder, determination of whether
parole should be considered at some future date was within province of jury. NRS 177.055, subd. 2(c).
14. Criminal Law.
Instruction discussing parole in first degree murder case did not mislead jury, nor did it enlarge upon
matter of parole, and thus it did not constitute reversible error. NRS 175.161, subd. 7, 177.055, subd. 2,
200.030, subd. 4(b).
15. Homicide.
Evidence in prosecution for first degree murder supported jury's finding of two aggravating
circumstances. NRS 175.055, subd. 2.
16. Homicide.
Sentence of death was not imposed under influence of passion, prejudice or any other arbitrary factor in
prosecution for first degree murder.
17. Homicide.
Sentence of death was not excessive or disproportionate to penalty imposed in similar cases considering
both crime, namely, first degree murder, and defendant.
OPINION
By the Court, Steffen, J.:
A jury convicted appellant Tracy Petrocelli of first degree murder and sentenced him to
death. Our review of the record convinces us that Petrocelli was fairly tried, convicted and
sentenced. We therefore affirm.
Tracy Petrocelli's journey to Reno began in Washington where he killed his fiancee. He
fled Washington and apparently drove to Colorado in a Corvette, to Oklahoma in a van and to
Reno in a Datsun which he stole while test driving the vehicle. Upon arriving in Reno,
Petrocelli decided he needed a four-wheel drive truck to get around in the snow. The next
day, his search for a vehicle ultimately led to a local used car dealer. The dealer, James
Wilson, acceded to Petrocelli's request for a test drive of a Volkswagen (VW) pickup, and the
two drove off with the dealer at the wheel. At about 1:30 p.m., a Dodge dealer saw them
driving north on Kietzke Lane. Approximately forty-five minutes later, a Reno patrolman saw
one person driving a truck matching the description of the VW speeding toward Pyramid
Lake.
That evening, Petrocelli was picked up on the Pyramid Highway and given a ride to
Sutcliffe. He told the driver that his motorcycle had broken down. In Sutcliffe, Petrocelli got
a ride to Sparks with a local game warden. Petrocelli then took a cab to Reno and apparently
paid his fare from a two-inch roll of bills.
The next day, the game warden and his partner looked for Petrocelli's motorcycle. Instead,
they found the VW truck with bloodstains and bullet holes on the passenger side. The car
dealer's body was found later that day in a crevice, covered with rocks, sagebrush and
shrubbery. His back pockets were turned slightly inside out and empty; his wallet was
missing. The victim, who usually carried large amounts of cash with him, had been shot three
times with a .22 caliber weapon. One shot was to the neck; another shot was to the heart, the
third shot was to the back of the head from a distance of two to three inches.
In the abandoned truck, .22 caliber bullet casings were found. When he was arrested,
Petrocelli was carrying a .22 caliber semiautomatic pistol which he testified he always
carried loaded and ready to fire.
automatic pistol which he testified he always carried loaded and ready to fire. Ballistics tests
on the casings found in the abandoned VW revealed that they had been fired from Petrocelli's
pistol. Tests on the bullet found in Wilson's chest and a test bullet fired from Petrocelli's
pistol also revealed similar markings.
At trial, Petrocelli provided his own account of the killing. After driving off the car lot, the
car dealer stopped at a gas station and filled the truck. From the station, Petrocelli drove the
truck. He and Wilson proceeded to argue about the price of the truck. Petrocelli laid
$3,500.00 on the dashboard and offered a total of $5,000.00 cash. The car dealer was insulted
and called him a punk. Later, on the way back, Wilson twice grabbed for the steering
wheel. Petrocelli then pulled out his pistol and said: Now who is the punk. The victim
laughed and said he had a gun also, although Petrocelli never saw one. The car dealer tried to
take the pistol from Petrocelli as he continued to drive. As they struggled, the gun went off
two or three
times. Petrocelli testified, I knew it was shooting, and I was just trying to pull it away from
him. . . . It was an accident. It was an accident. I didn't do anything. I just tried to keep him
from getting the gun. Petrocelli drove to a nearby doctor's office, went up to the door, but
did not go in because he didn't know how to tell him [doctor] there was someone hurt, shot
in the car. Thereafter, Petrocelli went to a bowling alley and called the hospital, but didn't
know what to say. He then returned to the truck, drove to Pyramid Lake and hid the car
dealer's body under some rocks. Petrocelli began walking after his truck bogged down, but
then returned to the vehicle to retrieve his gloves and the gun. He also picked up the car
dealer's wallet, took his money, threw the business and credit cards into the wind, and
discarded the wallet. Petrocelli then walked to the highway where he obtained rides back to
Reno.
Petrocelli was convicted by a jury of first degree murder and robbery with the use of a
deadly weapon. The sentence for the murder conviction was set at death. Petrocelli now
appeals the judgment of conviction of first degree murder and imposition of the death
penalty.
[Headnotes 1, 2]
The first issue on appeal is whether the district court committed reversible error by
attempting to clarify the concept of reasonable doubt for the jury during voir dire. NRS
175.211 defines reasonable doubt and provides that no other definition should be given to
juries.
1
The trial judge twice read the statutory definition to the jury, once at voir dire and
once during the formal reading of instructions.
____________________

1
175.211 Reasonable doubt defined; no other definition to be given to juries.
1. A reasonable doubt is one based on reason. It is not mere possible
to the jury, once at voir dire and once during the formal reading of instructions. After the voir
dire reading, however, the judge explained reasonable doubt further, including an example
referring to ninety-seven yards of a one hundred-yard football field.
2
Petrocelli, relying on
McCullough v. State, 99 Nev. 72, 657 P.2d 1157 (1983), maintains that the ninety-seven
yard line example represented an attempt to quantify the concept of reasonable doubt, which
impermissibly lowered the prosecutor's burden of proof. Contrary to McCullough, the district
court here properly gave the jury the statutory definition, not one which had been disapproved
in prior decisions. Moreover, in McCullough we explained: While an attempt by the trial
court to clarify the meaning of reasonable doubt is not by itself reversible error, . . . the
question on appeal is whether the court's statements correctly conveyed the concept of
reasonable doubt to the jury. . . . Id. at 75, 657 P.2d at 1158 (citations omitted). Although the
district court did give a numerical example, it was tempered by an effort to prevent the jury
from reducing reasonable doubt to a quantitative proposition. Our review shows that the trial
court attempted to impress upon the jury that reasonable doubt means reaching a subjective
state of near certitude, as required by the Supreme Court. Jackson v. Virginia, 443 U.S. 307,
315 (1979). We nevertheless again reiterate our admonition in McCullough that district courts
refrain from elaborating on the statutory definition of reasonable doubt for purposes of
clarification or otherwise. Since we perceive neither advantage to the state nor prejudice to
the defendant in the trial court's comments we are constrained to hold that no reversible error
occurred in conveying the concept of reasonable doubt to the jury.
____________________
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.

2
The transcript of the district court's explanation of reasonable doubt provides, in pertinent part, as follows:
Now, in a civil case . . . its kind of a 50/50 proposition. But there is no 60/40, 70/30, 90/10
proposition involved in proving a case by a certain amount of evidence in a crime case, because the
burden, the standard is beyond a reasonable doubt. I think it is a lot easier to understand than it is to
define. Some people say you have got to be convinced, and then others use, sports minded, use a kind of
athletic football field, getting to the 97 yard line. There are all kinds of ways to say it, but it is being
strongly convinced of the Defendant's guilt, or else he is acquitted.
Second, Petrocelli contends that the district court committed reversible error by admitting
testimony relating to the prior killing of his girl friend, Melanie Barber. Procedurally, the
state sought to interject the subject of the Barber offense during its cross-examination of
Petrocelli. After the state had concluded its case in chief, Petrocelli took the stand and
testified that the Wilson shooting was accidental. During a post-arrest statement, Petrocelli
had similarly described the Barber shooting as accidental.
In Carlson v. State, 84 Nev. 534, 537, 445 P.2d 157, 159 (1968) we expressed our concern
regarding evidence of collateral offenses by stating that:
[N]o reference shall be made to such collateral offenses unless, during the state's case in
chief, such evidence is relevant to prove motive, intent, identity, the absence of mistake
or accident, or a common scheme or plan; and then, only if such offense is established by
plain, clear and convincing evidence. A necessary corollary is that such evidence may not
be received to impeach the defendant, except evidence of a prior felony conviction.
The subject of collateral offenses or prior bad acts was later codified under our evidence
code as NRS 48.045(2).
3
Although the state made no attempt to admit evidence of the
Barber killing during its case in chief, it did seek to raise the subject during the
cross-examination of the defendant. The state's purpose in doing so, however, was not to
impeach the defendant. Petrocelli interjected the issue of accidental killing by his own
testimony. The state sought to prove absence of accident through evidence pertaining to the
Barber death which had occurred only five months prior to the instant offense.
[Headnote 3]
We consider first the procedure followed by the district court prior to admitting evidence
or allowing questions pertaining to the collateral offense. After Petrocelli's testimony on
direct examination, the state appropriately requested the district court's permission to raise the
collateral offense issue via a hearing outside the presence of the jury. During the hearing, the
state presented its reasons why the collateral offense was admissible under certain exceptions
specified by NRS 48.045(2). Thereafter, the state apprised the trial judge of the quantum
and quality of its evidence proving that the defendant had committed the prior offense.
____________________

3
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.
the state apprised the trial judge of the quantum and quality of its evidence proving that the
defendant had committed the prior offense. Finally, the trial judge weighed the probative
value of the proffered evidence against its prejudicial effect. The procedure thus described
was correct.
[Headnote 4]
Next, we consider whether the district court erred in ruling that evidence of the collateral
offense was admissible. In the course of the Barber incident, Petrocelli tried to drag the young
woman out of her place of employment; she resisted and they struggled. Petrocelli pulled out
the same gun that later killed Wilson and killed her in a flurry of shots. He claimed that her
death was also accidental. The evidence clearly was relevant to prove absence of accident,
one of the exceptional purposes specified in NRS 48.045(2).
[Headnotes 5, 6]
As noted above, 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. Tucker v.
State, 82 Nev. 127, 131, 412 P.2d 970, 972 (1966). The state's offer of proof fulfilled this
requirement. Petrocelli's own admission, coupled with eyewitness testimony, established by
the requisite standard of proof that Petrocelli killed Melanie Barber. Moreover, the state
properly demonstrated the quality of its evidence on the subject by actually calling the
eyewitness on rebuttal.
[Headnotes 7, 8]
Finally, we perceive no error in the district court's ruling that the probative value of the
collateral evidence outweighed its prejudicial effect. The court concluded that the two
killings with the same gun involving the same person, Mr. Petrocelli, who within a short
period of time [committed the killings] bore sufficient similarity to admit the evidence at
trial. Admission of the evidence was within the district court's sound discretion, and we will
respect the lower court's determination when, as here, it is not manifestly wrong. Brown v.
State, 81 Nev. 397, 400, 404 P.2d 428, 430 (1965).
Petrocelli's third contention is that the jury's consideration of the underlying felony of
robbery as an aggravating circumstance constituted reversible error. During the guilt phase of
trial, the state pursued conviction upon alternative theories of felony murder and premeditated
and deliberate murder. The jury returned a general verdict which did not specify the theory
upon which it based its verdict. During the sentencing phase of Petrocelli's trial, the jury
concluded that there were two circumstances under NRS 200.033 which aggravated the
conviction of murder and no mitigating circumstances sufficient to outweigh the
aggravating circumstances.4 Petrocelli argues that when an individual is convicted of first
degree murder under an alternative felony-murder theory {NRS 200.030), proof of the
underlying felony may not be used as an aggravating circumstance without a specific
finding that the defendant premeditatedly and deliberately killed the victim.
NRS 200.033 which aggravated the conviction of murder and no mitigating circumstances
sufficient to outweigh the aggravating circumstances.
4
Petrocelli argues that when an
individual is convicted of first degree murder under an alternative felony-murder theory (NRS
200.030), proof of the underlying felony may not be used as an aggravating circumstance
without a specific finding that the defendant premeditatedly and deliberately killed the victim.
Petrocelli relies on State v. Cherry, 257 S.E.2d 551 (N.C. 1979), in which the North Carolina
Supreme Court held that when a defendant is convicted of first degree murder under the
felony murder rule, the trial judge shall not submit to the jury at the sentencing phase of trial
the aggravating circumstance concerning the underlying felony. Cherry was based on the
potentially disproportionate treatment of defendants convicted of felony murder and
defendants convicted of premeditated and deliberate murder. The North Carolina Supreme
Court also based Cherry on its adherence to the merger rule, which provides that the
underlying felony becomes an element of the crime of felony murder and may not act as the
basis for additional prosecution or sentence. Id. at 567-68.
[Headnotes 9, 10]
We, contrarily, do not adhere to the merger rule. See Brimmage v. State, 93 Nev. 434, 567
P.2d 54 (1977). Because a defendant in our jurisdiction can be convicted and sentenced for
both robbery and felony murder, we decline to follow that part of the reasoning set forth in
Cherry. With regard to the potentially disproportionate treatment basis of the Cherry
reasoning, we note that the U.S. Supreme Court has implicitly approved the use of the
underlying felony in felony murder cases as a valid aggravating circumstance to support the
imposition of the death sentence. See Proffitt v. Florida, 428 U.S. 242 (1976); Gregg v.
Georgia, 428 U.S. 153 (1976). Florida and Georgia statutes both specify as aggravating
circumstances cognizable by a jury, murder committed by a defendant during the course of
a robbery or an armed robbery.
____________________

4
The particular aggravating circumstances found by the jury provided as follows:
NRS 200.033(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.
NRS 200.033(4): The murder was committed while the person was engaged, or was an accomplice, in
the commission of or an attempt to commit or flight after committing or attempting to commit, any
robbery, sexual assault, arson in the first degree, burglary or kidnapping in the first degree.
This latter subsection has subsequently been modified by the legislature to limit its uses to situations in
which the defendant (1) killed or attempted to kill the person murdered; or (2) knew or had reason to know
that life would be taken or lethal force used. 1983 Nev. Stats. ch. 110, 1, at 286.
ted by a defendant during the course of a robbery or an armed robbery. Proffitt, 428 U.S. at
248-49 n. 6 (robbery); Gregg, 428 U.S. at 165-66 n. 9 (armed robbery). Neither state's list of
aggravating circumstances includes an element of murder committed with premeditation or
deliberation. Our legislature has similarly provided that murder committed while the
defendant was engaged in the commission of a robbery may be considered as an aggravating
circumstance, while the elements of a murder committed with premeditation and deliberation
may not. We need not reject the former provision merely because the legislature has chosen
not to treat an arguably worse class of offender in similar fashion. Moreover, any seeming
disparity between a life sentence for premeditated murder and a death sentence for felony
murder would be examined by this Court under its statutory obligation to automatically
review sentences of death. NRS 177.055. Sections 2(c) and (d) of that statute provide that we
must consider whether the sentence of death was imposed under the influence of passion,
prejudice or any arbitrary factor and is excessive or disproportionate to the penalty imposed
in similar cases. Thus, NRS 200.033 is facially constitutional and under our present statutory
scheme we have determined that it was applied constitutionally in the instant case. See State
v. Pritchett, 621 S.W.2d 127, 140-41 (Tenn. 1981). Furthermore, a defendant convicted of a
felony murder will not automatically receive the death penalty merely because he initially
faces one aggravating circumstance. The jury is free to find that any . . . mitigating
circumstance outweighs that aggravating factor, NRS 200.035, and is not required to
automatically impose death. See Coleman v. State, 378 So.2d 640, 646-47 (Miss. 1979). We
therefore reject the contention that the underlying felony cannot be considered as an
aggravating circumstance.
Fourth, we consider whether instructing the jury at sentencing regarding the possibility of
pardon or parole constituted reversible error. NRS 175.161(7) provides that, upon request of
either party, the jury must be informed that in cases where life without possibility of parole is
a possible penalty, such penalty does not exclude executive clemency. An instruction given
at sentencing advised the jury that the State Board of Pardons Commissioners has power to
modify any sentence at a later date.
5
Recognizing the recent decision of the U.S. Supreme
Court upholding the constitutionality of a similar statute in California v. Ramos, 103 S.Ct.
____________________

5
Instruction No. 5, given to the jury during the penalty hearing, provides:
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. 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.
recent decision of the U.S. Supreme Court upholding the constitutionality of a similar statute
in California v. Ramos, 103 S.Ct. 3446 (1983), Petrocelli urges this Court to extend
protection for defendants in Nevada beyond the federal Constitution.
6
We, however, defer to
the will of our state legislature, NRS 175.161(7), and decline to do so.
[Headnotes 11, 12]
Regarding this contention, Petrocelli argues that a jury instruction concerning the
possibility of pardon or parole goes beyond what may be presented at the penalty hearing, as
set forth in NRS 175.552.
7
While Petrocelli claims that only evidence relative to the offense,
defendant or victim is admissible, the statute also provides that any other matter which the
court deems relevant to sentence may also be presented. Accord Allen v. State, 99 Nev. 485,
665 P.2d 238 (1983). We hold that the instruction regarding the possibility of pardon or
parole is relevant to the defendant's sentence. Petrocelli also argues that the instruction injects
a level of speculative passion, prejudice and arbitrariness to sentencing which is prohibited in
NRS 177.055(2)(c). He asserts that a defendant may be sentenced to death merely because
one jury perceives a greater likelihood of commutation or parole than another jury. The U.S.
Supreme Court specifically addressed this argument with regard to the federal Constitution
and held that such an instruction does not run afoul of constraints against arbitrary and
capricious sentencing patterns, and that the possibility of commutation is not too speculative
of an element for the jury's consideration. 103 S.Ct. at 3451-54. We concur in the Court's
reasoning and hold that the instruction given here likewise did not violate NRS 177.055(2)(c).
____________________
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.

6
While the U.S. Supreme Court in California v. Ramos considered a governor's power to commute sentences
and we here consider our Board of Pardons Commissioners' power to do likewise, we note that the arguments
regarding the impact of the challenged instructions on juries made in both cases are substantially the same,
despite the different sources of executive clemency.

7
NRS 175.552 provides, in pertinent part:
175.552 Penalty hearing: Requirement; jury; panel of judges; evidence. 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. . . .
[Headnote 13]
Petrocelli next argues that the challenged statute effectively invites the jury to unfairly
impose a penaltydeath or life without possibility of parolemost certain to prevent the
defendant from walking the streets again. He primarily supports his contention by reference to
Justice Steven's dissent in California v. Ramos. The argument is not persuasive in light of the
majority's holding to the contrary. As with the Briggs Instruction in California v. Ramos, the
instruction here did not limit the jury to two sentencing choices. Instead, it places before the
jury an additional element to be considered, along with many other factors, in determining
which sentence is appropriate under the circumstances of the defendant's case. Id. at 3456.
We agree. 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.
Notwithstanding our conclusion that the instruction given here did not constitute error, we
are concerned about the variety of such instructions we have seen on appeal and the nuances
contained therein. Certain of the instructions have, by commission or omission, not been
totally accurate or suitable. We therefore conclude, given the magnitude of the cases involved
and the need to avoid prospective reversals resulting from unacceptable versions of this type
of instruction, that hereafter (unless and until the law on the subject is modified), in all trials
commenced after the publication of this opinion, and when requested by either the state or the
defendant, the following instruction, and none other, may be given:
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 he would
be eligible after that period of time.
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 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.
[Headnote 14]
Finally, Petrocelli argues that the instruction's reference to parole eligibility after a
minimum of ten years was error, based on Serrano. In Serrano, we held, without explanation,
that the trial judge's reference to ten years in his reply to a deliberating jury's query was
error. At the time of Serrano's crime, NRS 200.030(4)(b), which now sets forth the ten-year
minimum, had not yet been enacted.
8
The judge's reference to the new statute, therefore,
was error as that statute did not become effective until ten months after the crime was
committed. The instant case suffers no such error. Whether the trial judge notified counsel
before responding to the jury's query, moreover, does not raise a potential error in the instant
case. Here, Instruction No. 5 was formally supplied to the jury before deliberation at the
request of counsel, as provided for in NRS 175.161(7). Petrocelli's counsel, additionally,
while objecting to the instruction on the grounds of speculativeness and bias favoring the
death penalty, did not object at trial to the ten year reference on the basis of Serrano, In
Summers, we reaffirmed Serrano based on Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965).
An instruction that discusses parole in a murder case is proper if the jury is not misled and
so long as it does not enlarge upon the matter of parole such as requirements of eligibility,
how the scheme works, etc. 86 Nev. at 213, 467 P.2d at 100. We hold that the instruction
given here did not mislead the jury. While at the time Bean and Serrano were decided a
reference to ten years of minimum service might have been considered to be enlarging upon
the matter of parole, the subsequent enactment of NRS 200.030(4)(b) makes the reference
here merely a recital of pertinent Nevada law. We also hold, therefore, that the challenged
instruction did not enlarge upon the matter of parole. In conclusion, we hold that the
instruction given here regarding the power of the Board of Pardons Commissioners to modify
any sentence did not constitute reversible error.
[Headnotes 15-17]
Finally, we have determined, after analyzing the circumstances of Petrocelli's crime as
required by NRS 177.055(2), that the evidence in the instant case supports the jury's finding
of two aggravating circumstances. Our review of the record reveals that the sentence of death
was not imposed under the influence of passion, prejudice or any arbitrary factor. We also
conclude that the sentence of death is not excessive or disproportionate to the penalty
imposed in similar cases in this state, considering both the crime and the defendant. E.g.,
Deutscher v. State, 95 Nev.
____________________

8
The ten year minimum service requirement, currently contained in NRS 200.030(4)(b), became effective on
July 1, 1967. 1967 Nev. Stats. ch. 211, 43, 701, at 468, 667.
669, 601 P.2d 407 (1979); Bishop v. State, 95 Nev. 511, 597 P.2d 273 (1979). Cf. Briano v.
State, 94 Nev. 422, 581, P.2d 5 (1978) (life imprisonment); Koza v. State, 100 Nev. 245, 681
P.2d 44 (1984) (life imprisonment).
We hold that all of the errors raised by Petrocelli and enumerated by way of appeal are
without merit. Accordingly, we affirm the conviction of first degree murder and the sentence
imposing the death penalty.
Manoukian, C.J., Springer, Mowbray, and Gunderson, JJ., concur.
____________
101 Nev. 58, 58 (1985) Clark v. District Court
AARON CLARK and DAVID MAY II, Co-Executors of the Estate of WILBUR D. MAY,
Deceased, Petitioners, v. SECOND JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA; and the HONORABLE PETER I. BREEN, District Judge, Respondents, and
BINNEY A. EVANS, Real Party In Interest.
No. 15339
January 4, 1985 692 P.2d 512
Original petition for mandamus, or in the alternative, prohibition, seeking relief from
pretrial discovery orders. Second Judicial District Court, Washoe County, Peter I. Breen,
Judge.
Decedent's ex-wife brought suit against co-executors of his estate seeking recovery of
$1,000,000 in damages for decedent's alleged breach of an oral contract and imposition of a
constructive trust on his estate for that sum. The district court entered two pretrail orders in
favor of ex-wife for production of certain documents, and co-executors applied for writ of
mandamus or prohibition directing the District Court to vacate the discovery orders. The
Supreme Court held that: (1) exception to attorney-client privilege did not apply to ex-wife so
as to permit her to discover all wills and codicils made by or prepared for decedent, and (2)
trial court exceeded its jurisdiction in ordering production of decedent's entire tax returns
without specifying items requested and relevancy thereof.
Petition granted.
[Rehearing denied May 21, 1985]
Woodburn, Wedge, Blakey and Jeppson, and Suellen E. Fulstone, Reno, for Petitioners.
Breen, Young, Whitehead, Belding & Hardesty, Chartered, Reno, for Respondents and
Real Party in Interest.
1. Witnesses.
General rule is that attorney-client privilege survives termination of relationship, and even death of client.
NRS 49.095.
2. Witnesses.
An exception to application of attorney-client privilege on behalf of a deceased client exists when the
dispute is between various parties claiming through or under the client, as opposed to a dispute
between the deceased client's estate and a stranger. NRS 49.095.
3. Pretrial Procedure.
Ex-wife in suit in which essence of her claims were breach of contract and misrepresentation by decedent,
must be considered as claiming against rather than through decedent, and thus exception to
attorney-client privilege did not apply to her so as to permit her to discover all wills and codicils made by
or prepared for decedent. NRS 49.095, 49.105, subd. 1, 49.115, subd. 2.
Exception to attorney-client privilege, available when a grantee, claiming through decedent by virtue of a
deed, for example, is involved in a dispute with heirs or legatees and devisees over which disposition
represented the true intent of decedent, was inapplicable where ex-wife made no claim that true intent of
decedent was to leave property to her, but she asserted that his intention was wrongful as to her; she could
not claim to stand in the shoes of decedent and thus she had no right to claim exception to attorney-client
privilege in order to discover all wills and codicils made by or prepared for decedent. NRS 49.095.
In action brought by decedent's ex-wife against co-executors of his estate seeking recover of $1,000,000
in damages for decedent's alleged breach of an oral contract and imposition of a constructive trust on
decedent's estate for that sum, trial court exceeded its jurisdiction in ordering production of decedent's
entire tax returns without specifying items requested and relevancy thereof.
OPINION
Per Curiam:
The petitioners are co-executors of the estate of Wilbur D. May, deceased, and defendants
in a suit brought in the respondent district court by May's ex-wife, Binney A. Evans, the real
party in interest. They now apply for a writ of mandamus or prohibition directing the district
court to vacate two pretrial discovery orders. Petitioners claim that discovery of May's prior
wills and codicils, and of testimony of May's attorney regarding a divorce settlement
agreement between May and Evans, is barred by the attorney-client privilege. They also claim
that the district court exceeded its jurisdiction in ordering blanket discovery of May's
post-divorce income tax returns.
Wilbur D. May died in January of 1982, at the age of 83. He left an estate in excess of
$71,000,000. Evans and May were married from November 1953 until their divorce in April,
1963. May's last will, dated August 1, 1981, was admitted to probate in February of 1982.
The will mentioned Evans only to the extent of forgiving her for any debts which she might
have owed decedent. Evans filed two claims against the estate: one for alimony which she
claims was due, and the second claim for $1,000,000 which she asserted was due her under
an oral contract. Evans claimed that May agreed to leave her that amount at the time of the
divorce. Both the claims were disapproved, and this suit followed.
By an amended complaint Evans sued for $1,000,000 in damages predicated upon a breach
of contract, and the imposition of a constructive trust on May's estate for that sum. Evans also
sought to set aside the 1963 property agreement entered into at the time of the parties'
divorce, and to recover damages resulting from misrepresentations allegedly made to her by
May at the time of the divorce.
During discovery below, defendants objected to Evans' request for production of any wills
or codicils to wills, or drafts thereof, made by or prepared for decedent, by asserting the
attorney-client privilege. They also objected to plaintiffs attempts to depose Richard W.
Blakey, May's attorney, regarding the preparation of such wills and codicils, and Blakey's
communications with decedent, or other attorneys for decedent, with respect to the 1963
divorce and property settlement agreement on the same ground. In addition, defendants
objected to the request for production of decedent's tax returns, at least for the years after the
termination of decedent's marriage to Evans.
The district court, after hearings, ordered that all wills and codicils made by or prepared
for May be produced, as well as all documents relevant to any agreement between Evans and
May to make a will or codicil or otherwise dispose of property for the benefit of Evans. The
court further held that there was no lawyer-client privilege with respect to any oral or
written communications between May and his attorneys regarding any divorce settlement
agreement with Evans. In addition, the court ordered production of all income tax returns of
the decedent from 1953 through the date of his death.
In this petition the co-executors of the decedent's estate contend that the attorney-client
privilege protects the confidences of the decedent, and that the court exceeded its jurisdiction
in ordering production of the tax returns for the period after the marriage of the parties.
ATTORNEY-CLIENT PRIVILEGE
The attorney-client privilege has its origins in the earliest days of the common law. See 8
Wigmore, Evidence, section 2290 (McNaughton rev. 1961). This Court laid down the reason
for the privilege as follows:
In the complicated affairs and relations of life, the counsel and assistance of those
learned in the law often becomes necessary, and to obtain it men are frequently forced
to make disclosures which their welfare, and sometimes their lives, make it necessary to
be kept secret. Hence, for the benefit and protection of the client, the law places the seal
of secrecy upon all communications made to the attorney in the course of his
professional employment, and the courts are expressly prohibited from examining him
as a witness upon any facts which may have come to his knowledge through the
medium of such employment.
Mitchell v. Bromberger, 2 Nev. 345, 348-349 (1866).
[Headnote 1]
The general rule is that such privilege survives the termination of the relationship, and
even the death of the client, See, e.g., Glover v. Patten, 165 U.S. 394 (1897); United States v.
Osborn, 561 F.2d 1334 (9th Cir. 1977); Russell v. Jackson, 9 Hare 387, 68 Eng. Rep. 558
(Ch. 1851). As Wigmore has stated:
The subjective freedom of the client, which it is the purpose of the privilege to secure
. . ., could not be attained if the client understood that, when the relation ended or even
after the client's death, the attorney could be compelled to disclose the confidences, for
there is no limit of time beyond which the disclosures might not be used to the
detriment of the client or of his estate.
8 Wigmore, supra, section 2323, at 630. (Reference omitted.)
These common law rules are reflected in Nevada's statutes. NRS 49.095 provides:
A client has a privilege to refuse to disclose, and to prevent any other person from
disclosing, confidential communications:
1. Between himself or his representative and his lawyer or his lawyer's representative.
2. Between his lawyer and the lawyer's representative.
3. Made for the purpose of facilitating the rendition of professional legal services to the
client, by him or his lawyer to a lawyer representing another in a matter of common
interest.
to a lawyer representing another in a matter of common interest.
NRS 49.105(1) provides that the privilege may be claimed not only by the client, but
also by the personal representative of a deceased client.
Evans, however, claims that the privilege does not apply to the case at bar. She predicates
her argument upon the provision of NRS 49.115(2) that there is no attorney-client privilege
[a]s to a communication relevant to an issue between parties who claim through the same
deceased client, regardless of whether the claims are by testate or intestate succession or by
inter vivos transaction. We do not agree that such an extension of the common law rule was
intended by the legislature of this state.
[Headnote 2]
An exception to the application of the privilege on behalf of a deceased client has long
been recognized when the dispute is between various parties claiming through or under
the client, as opposed to a dispute between the estate and a stranger. In Glover v. Patten,
supra, 165 U.S. at 406, the United States Supreme Court held that
in a suit between devisees under a will, statements made by the deceased to counsel
respecting the execution of the will, or other similar document, are not privileged.
While such communications might be privileged, if offered by third persons to establish
claims against an estate, they are not within the reason of the rule requiring their
exclusion, when the contest is between the heirs or next of kin.
The distinction between parties claiming under the client as against parties claiming
adversely to him, is set forth by the court in Russell v. Hare, supra, 9 Hare at 392, as quoted
by the Supreme Court, 165 U.S. at 407. In the one case the question is, whether the property
belongs to the client or his estate, and the rule may well apply, for the protection of the
client's interests. In the other case the question is, to which of two parties claiming under the
client the property in equity belongs, and it would seem to be a mere arbitrary rule to hold
that it belongs to one of them rather than to the other.
The Advisory Committee Note to the Draft Federal Rule of Evidence, section 503, from
which Nevada's statute was drawn, states the reason for the exception as follows, 11 Moore's
Federal Practice, sec. 503 App. [5.-2]-(2), at App. I-41 (2d ed. 1982):
Normally the privilege survives the death of the client and may be asserted by his
representative. . . . When, however, the identity of the person who steps into the
client's shoes is in issue, as in a will contest, the identity of the person entitled to
claim the privilege remains undetermined until the conclusion of the litigation.
the identity of the person who steps into the client's shoes is in issue, as in a will
contest, the identity of the person entitled to claim the privilege remains undetermined
until the conclusion of the litigation. The choice is thus between allowing both sides or
neither to assert the privilege, with authority and reason favoring the latter view. . . .
[Headnote 3]
The question presented in the instant case is whether Evans is a stranger, as the term is
used by the courts with regard to this issue, or whether she should, in the language of the
statute, be considered as one claiming through the same deceased client. We are of the view
that as the plaintiff in a suit in which the essence of her claims are breach of contract and
misrepresentation by the decedent, Evans must be considered as claiming against rather
than through decedent, and the exception to the privilege does not apply to Evans.
This view is consistent with the position of the majority of the courts which have directly
considered the question of the application of the privilege to parties whose claim to a share of
an estate rests merely on a claim that the decedent breached a contract to leave them property
in a will.
In Doyle v. Reeves, 152 A.882 (Conn. 1931), the court held that the executor could raise
the attorney-client privilege to bar testimony of decedent's attorney regarding a proposed will.
Plaintiff claimed such testimony would corroborate her allegation of a contract to will her
property. The court held that the action is one between the testator's representative and a
stranger in legal contemplation, not claiming under him. Id. at 884. The Supreme Court of
Wisconsin, in Re Smith's Estate, 57 N.W.2d 727 (Wis. 1953), similarly held that the former
wills and codicils prepared by the attorney of deceased wife were privileged against
disclosure to the nieces of deceased husband, who claimed to be the beneficiaries of an
alleged contract between the two of them for a certain testamentary disposition. The nieces
claimed that they were not strangers, but were claiming certain specific property through
the testatrix. The court responded: We cannot follow the logic of such contention. If
claimants were claiming as legatees under the will of testatrix, or as her heirs at law, they
would be claiming under or through the testatrix. However, they do not so claim but on the
contrary their claim is based upon breach of contract by testatrix which of necessity makes
the same adverse to testatrix and her estate. Id. at 730.
[Headnote 4]
Similarly holding that a claimant asserting breach of contract to will is a stranger to the
estate, and therefore not entitled to claim an exception to the attorney-client privilege are
De Loach v. Myers, 109 S.E.2d 777 {Ga.
claim an exception to the attorney-client privilege are De Loach v. Myers, 109 S.E.2d 777
(Ga. 1959); Estate of Voelker, 396 N.E.2d 398 (Ind.App. 1979); Stegman v. Miller, 515
S.W.2d 244 (Ky. 1974); McCaffrey v. Estate of Brennan, 533 S.W.2d 264 (Mo.App. 1976).
1

We therefore conclude that the exception to the privilege does not apply, and that the court
below exceeded its jurisdiction in ordering production and disclosure of privileged
communications between the decedent and his attorney.
INCOME TAX RETURNS
[Headnote 5]
In Schlatter v. District Court, 93 Nev. 189, 561 P.2d 1342 (1977), we held that an order
permitting carte blanche discovery of all information contained in income tax returns
without regard to relevancy was beyond the jurisdiction of the respondent court. We also
noted that discovery of material in such returns may not be approved in the absence of a
showing that the information is otherwise unobtainable. Id. at 192, 561 P.2d at 1343.
The district court exceeded its jurisdiction under our ruling in Schlatter in ordering the
production of the decedent's entire tax returns without specifying the items requested and the
relevancy thereof.
CONCLUSION
A writ shall issue vacating that part of the orders which directed the petitioners to disclose
the previous wills and codicils of the decedent and written or oral communications
concerning them, as well as communications regarding the divorce and property agreement
which are protected by the attorney-client relationship. The writ shall also direct the court
below to vacate the court's order requiring the production of May's tax returns from 1964 to
May's death. Upon a proper showing the court may thereafter enter an order directing
disclosure of information in the tax returns consistent with its jurisdiction and this
opinion.
____________________

1
Evans urges that because a party may claim through a decedent by intervivos transaction under our
statute, the intent of the legislature was to include claimants asserting breach of contract to make a will. See
Ervesun v. Bank of New York, 239 A.2d 10 (N.J.Super.App.Div. 1968). We cannot agree. Courts have long
held that the exception should apply when a grantee, claiming through decedent by virtue of a deed, for example,
is involved in a dispute with the heirs or legatees and devisees over which disposition represented the true intent
of the decedent, See, e.g., Olsson v. Pierson, 25 N.W.2d 357 (Iowa 1946). In this case, on the other hand, Evans
makes no claim that the true intent of the decedent was to leave the property to her. On the contrary, she asserts
that his intention was wrongful as to her. Unlike the grantee, she cannot claim to stand in the shoes of the
decedent.
thereafter enter an order directing disclosure of information in the tax returns consistent with
its jurisdiction and this opinion.
Springer, Mowbray, Steffen, Gunderson, J.J., and Fondi, D.J.
2
concur.
____________________

2
Governor Richard Bryan designated The Honorable Michael E. Fondi, District Judge, to sit in this case in
place of The Honorable Noel E. Manoukian, Chief Justice, who voluntarily disqualified himself. Nev. Const. art.
6, sec. 4.
____________
101 Nev. 65, 65 (1985) State v. Loyle
THE STATE OF NEVADA, Appellant, v. ROBERT
EARL LOYLE, Jr., Respondent.
No. 15429
January 4, 1985 692 P.2d 516
Appeal from order granting motion to suppress evidence; Second Judicial District Court,
Washoe County; Peter I. Breen, Judge.
State appealed from an order of the district court granting defendant's motion to suppress
evidence in criminal case. The Supreme Court, Springer, J., held that where state did not file
separate notice of appeal with Supreme Court clerk within five days after district court
granted motion to suppress, state did not properly invoke Supreme Court's jurisdiction.
Appeal dismissed.
Steffen, J. and Manoukian, C. J., dissented.
Brian McKay, Attorney General, Carson City, Mills Lane, District Attorney, Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
M. Jerome Wright, Reno, for Respondent.
Criminal Law.
Where state, though filing with district court clerk a notice of appeal from granting of suppression
motion, did not file a separate notice of appeal with Supreme Court clerk within five days after district
court granted motion to suppress, state did not properly invoke jurisdiction of Supreme Court under statute.
NRS 177.015, subd. 2.
OPINION
By the Court, Springer, J.:
This is an appeal from an order granting a motion to suppress evidence in a criminal case.
101 Nev. 65, 66 (1985) State v. Loyle
evidence in a criminal case. Respondent has moved to dismiss this appeal on the ground that
appellant did not properly invoke the jurisdiction of this court under NRS 177.015(2). The
motion is granted.
Respondent was charged with possession of a controlled substance and possession of a
controlled substance for the purpose of sale. Respondent moved to suppress certain evidence,
and the district court granted the motion. Within two days thereafter the state filed a notice of
appeal with the district court clerk. The record on appeal was eventually docketed with this
court. Respondent has now moved to dismiss the appeal on the ground that the state did not
file a separate notice of appeal with the supreme court clerk within five days after the district
court granted the motion to suppress, as required by NRS 177.015(2). That statute provides,
in part, as follows:
[N]otice of the appeal must be filed with the clerk of the district court within 2 judicial
days and with the clerk of the supreme court within 5 judicial days after the ruling by
the district court [on motion to suppress].
Previously, the state had no right to an immediate appeal from an order granting a motion
to suppress evidence. See State v. Warmington, 81 Nev. 369, 403 P.2d 849 (1965); see also
Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969); Franklin v. District Court, 85 Nev. 401,
455 P.2d 919 (1969). The legislature recently enacted NRS 177.015(2), however, which
provides for such appeals. The statute states clearly the manner in which an appeal must be
filed.
Respondent relies on In re the Estate of Major A. Riddle v. Close, 99 Nev. 632, 668 P.2d
290 (1983), in which this court dismissed an appeal of interlocutory probate orders, because
the notice had been filed after the expiration of the 30-day statutory period. In Estate of
Riddle, above, we stated: We perceive no reason why the legislature, having granted a right
to appeal where it did not otherwise exist, should not be free to place restrictions upon the
exercise of that right.
NRS 177.015(2) places restrictions upon the exercise of the right of appeal, namely, that
the notice of appeal must be filed with the district court clerk within two days and with the
supreme court clerk within five days after a ruling by the district court. Appellant does not
offer sufficient justification in reason, common sense, or public policy to warrant a judicial
interpretation of this statute which disregards the second, conjunctive five-day requirement.
Since appellant concedely did not file the notice of appeal with the clerk of the supreme
court within 5 judicial days after the ruling of the district court," the appeal was not
perfected in the manner commanded by the statute.
101 Nev. 65, 67 (1985) State v. Loyle
after the ruling of the district court, the appeal was not perfected in the manner commanded
by the statute.
The appeal is dismissed.
Mowbray and Gunderson, JJ., concur.
Steffen, J., with whom Manoukian, C. J., agrees, dissenting:
Since I do not view the five-day notice to this Court as being jurisdictional, I respectfully
dissent.
Respondent contends that the failure of the state to comply fully with the terms of NRS
177.015(2) deprives this Court of jurisdiction to entertain an appeal by the state. In pertinent
part, the statute reads as follows:
[N]otice of the appeal must be filed with the clerk of the district court within 2 judicial
days and with the clerk of the supreme court within 5 judicial days after the ruling by
the district court [on the motion to suppress].
Prior to the enactment of the quoted statute, no right of appeal existed from an order granting
a motion to suppress evidence. The statute contains time limits which are quite short when
compared to other appeal statutes and rules. E.g., NRAP 4(a) (30 days for civil appeal);
NRAP 4(b) (30 days for criminal appeal); NRS 34.380 (15 days for habeas corpus appeal);
NRS 179.510 (30 days for appeal from order suppressing wiretap evidence). I have reviewed
the legislative history of NRS 177.015(2) and have concluded that the short notice
requirement reflects a concern for preserving the right to speedy trials for defendants who
have successfully moved to suppress evidence. The legislative history, however, does not
reveal a purpose for the requirement that the state file two separate notices of appeal.
I am unaware of any other statute or rule which provides for the filing of an original notice
of appeal in the Supreme Court. All other appeals are initiated by the filing of notices of
appeal in the district court. E.g., NRAP 4(1) (civil appeals); NRAP 4(b) (criminal appeals).
The statute dealing with criminal appeals in general states that an appeal from a district court
to the Supreme Court is taken by filing with the clerk of the district court a notice of appeal
in duplicate. NRS 177.075. Furthermore, NRAP 3(a) provides that an appeal from the
district court to the Supreme Court shall be taken by filing a notice of appeal with the clerk
of the district court. Cf. Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317 (1940) (notice of
appeal filed in Supreme Court instead of district court; appeal ineffective).
The filing of a two-day notice of appeal in the district court is sufficient to effectuate the
legislative purpose of preserving speedy trials.
101 Nev. 65, 68 (1985) State v. Loyle
sufficient to effectuate the legislative purpose of preserving speedy trials. Filing of a notice of
appeal in the district court is also sufficient to invoke the jurisdiction of this Court. There is
no indication in the statute's history that the legislature intended the additional five-day notice
of appeal to be a jurisdictional prerequisite. It appears that the additional notice requirement
is simply to insure that we are informed, within five days after the district court's ruling, of
the existence of an appeal which will be docketed shortly and which should be given
expedited consideration by this Court. Cf. NRS 177.075(5) (duplicate notice of appeal
forwarded by district court clerk to Supreme Court clerk). As such, the five-day notice which
is to be filed with the Supreme Court clerk should not be viewed as an additional
jurisdictional requirement necessary to invoke the appellate power of this Court in a
suppression appeal.
Accordingly, I would hold that although the timely filing of a notice of appeal in the
district court is a jurisdictional prerequisite to an appeal under NRS 177.015(2), the timely
filing of the additional five-day notice in this Court is not a jurisdictional requirement.
Therefore, the state's failure to file the five-day notice in this Court was a procedural
dereliction which should not affect the validity of the appeal, and the dereliction should be a
ground only for such action as we deem appropriate. NRAP 3(a). I do not consider the instant
dereliction to be of sufficient magnitude to warrant dismissal. I would therefore deny
respondent's motion to dismiss the appeal.
__________
101 Nev. 68, 68 (1985) Koester v. Estate of Koester
DONALD F. KOESTER, Appellant, v. ADMINISTRATOR OF THE ESTATE OF SHERRY
A. KOESTER, DECEASED, Respondent.
No. 14083
January 4, 1985 693 P.2d 569
Appeal from order granting a motion to construe an amended divorce decree and a motion
to enter the original divorce decree nunc pro tunc, Third Judicial District Court, Churchill
County; Stanley A. Smart, Judge.
Prompted by probate proceedings on former wife's estate, former husband filed motion for
order construing original and amended divorce decree, and wife's estate, which was allowed
to intervene, opposed husband's motion for construction and moved for entry of order nunc
pro tunc setting time of filing of original decree back to time prior to wife's death. The district
court granted estate's motion for order nunc pro tunc, and husband appealed.
granted estate's motion for order nunc pro tunc, and husband appealed. The Supreme Court,
Manoukian, C. J., held that: (1) portion of order appealed from which purported to construe
divorce decree was nonappealable by reason that it did not affect rights of parties growing out
of final judgment; but (2) nunc pro tunc entry of original decree of divorce was appealable
special order made after final judgment; and (3) nunc pro tunc order was properly entered,
validating otherwise voidable divorce decree, which was filed and signed by judge shortly
before wife's death, but findings of fact, conclusions of law and decree of divorce were not
filed with clerk until next day.
Affirmed in part; appeal dismissed in part.
Springer, J., dissented.
Diehl, Evans & Associates, Fallon, for Appellant.
Warren W. Goedert, Reno, and Echeverria & Osborne, Reno, for Respondent.
1. Judgment.
Rule which establishes when judgment takes effect is not inconsistent with statute which preserves
benefits of cause of action which has ripened into jury verdict or decision, modifying common law rule that
all proceedings in lawsuit were arrested by death of party. NRS 17.140; NRCP 58(c).
2. Divorce.
District court had power, pursuant to statute which preserves benefits of cause of action which has
ripened into jury verdict or decision, to enter judgment in divorce action after wife's death, where judge
filed decision and, shortly before wife's death, signed findings, conclusions, and decree prepared by
wife's counsel, although findings of fact, conclusions of law and decree of divorce were not filed until day
after wife's death, but where personal representative of wife was not substituted as party until after entry of
decree was voidable. NRS 17.140; NRCP 25(a).
3. Parties.
Statute which preserves benefits of cause of action which has ripened into jury verdict or decision as
against deceased party does not alter rule that before court may issue order or judgment against or for
deceased party, personal representative must be substituted. NRS 17.140.
Postjudgment order may be appealed only if it affects rights of parties growing out of final judgment.
NRAP 3A(b)(2).
5. Judgment.
Judgment may be amended nunc pro tunc if change will make record speak truth as to what was actually
determined or done or intended to be determined or done by court.
6. Motions.
Exercise of nunc pro tunc order depends on circumstances of particular case and it is to be granted or
refused as justice may require.
7. Divorce.
Nunc pro tunc entry of original decree of divorce setting time of filing of original decree back to point
prior to wife's death validated otherwise voidable decree of divorce, and thus, was appealable.
8. Judgment.
Although power to amend judgment nunc pro tunc cannot be used to correct judicial errors or omissions,
court has inherent power to correct mere clerical errors at any time.
9. Divorce.
Failure to file final divorce decree is clerical omission which court has inherent power to correct at any
time.
10. Divorce.
Portion of nunc pro tunc order construing divorce decree, which reconfirmed previous determination that
real property and appurtenances were community property of parties despite their method of holding title,
did not affect parties' rights arising out of final judgment, and thus, was not appealable as special order
made after final judgment.
OPINION
By the Court, Manoukian, C. J.:
This is an appeal from an order granting a motion to construe an original and amended
divorce decree and a motion to enter the original decree nunc pro tunc. That portion of the
order appealed from which purports to construe the divorce decrees is nonappealable pursuant
to NRAP 3A(b)(2) because it did not affect the rights of the parties growing out of final
judgment. The nunc pro tunc entry of the original decree of divorce is, however, an
appealable special order made after final judgment. Because the nunc pro tunc order was
properly entered, validating an otherwise voidable divorce decree, that portion of the order
below is affirmed.
Donald F. Koester and Sherry A. Koester were married in Reno on June 1, 1968. On
November 20, 1978, Don filed for divorce and requested that the community property be
divided. The lower court filed its decision on July 17, 1979, and ruled that 29.5 acres of
land held by Sherry and Don in joint tenancy was the community property of the parties. The
findings, conclusions and decree were prepared by Sherry's counsel and, sometime on July
30, 1979, the judge signed them. At 3:30 p.m. that afternoon, Sherry was killed in an
automobile collision. The findings of fact, conclusions of law and decree of divorce were not
filed with the clerk until July 31, 1979.
On October 29, 1979, the lower court amended its findings of fact and conclusions of law.
Prompted by the probate proceedings in Sherry's estate, Don filed, on December 12, 1981, a
motion for an order construing the original and the amended divorce decrees.
decrees. On December 28, 1981, Sherry's estate was allowed to intervene in the continuation
of the divorce action. On that date, the estate opposed Don's motion for construction and also
moved for entry of an order nunc pro tunc setting the time of filing of the original divorce
decree back to July 17 or July 30, 1979.
On March 23, 1982, the lower court granted the estate's motion for an order nunc pro tunc
and again stated that its decision of July 17, 1979 determined that the real property and
appurtenances were the community property of the parties. . . . The order of March 23rd is
the only order from which Don has appealed.
1

1. Appealability of the nunc pro tunc entry of the original decree of divorce.
On appeal, Don contends that because Sherry died before the divorce decree was filed,
NRCP 58(c) invalidated the decree. The estate, however, argues that NRS 17.140 permitted
the lower court to enter formal judgment when, as in this case, a party dies after rendition of
the decision. In response, Don argues that NRCP 58(c) and NRS 17.140 are inconsistent and
that, therefore, NRCP 58(c) prevails. We disagree.
[Headnote 1]
The rule and the statute are not inconsistent. NRCP 58(c) establishes when a judgment
takes effect. NRS 17.140 preserves the benefits of a cause of action which has ripened into a
jury verdict or a decision. See Bates v. Burns, 274 P.2d 569 (Utah 1954). NRS 17.140
modified the common law rule that all proceedings in a lawsuit were arrested by the death of
a party. See Becker v. King, 307 So.2d 855 (Fla.App. 1975); Orton v. Adams, 444 P.2d 62
(Utah 1968).
[Headnote 2]
This court has not interpreted NRS 17.140. A similar statute (Cal.Civ.Pro. Code 669
West 1980) was interpreted in John v. Superior Court, 90 P. 53 (Cal. 1907), as permitting the
entry of a final decree of divorce following the husband's death so long as the death occurred
after a decision of all the issues of fact had been entered. Id. at 54. In the instant case, Sherry
died after the lower court had entered its decision. Therefore, the lower court had the power,
pursuant to NRS 17.140, to enter judgment after Sherry's death.
____________________

1
On September 1, 1982, the estate filed a motion to dismiss the appeal. The estate contended that pursuant to
NRAP 3A(b)(2), the order construing the amended divorce decree and granting the motion for the nunc pro tunc
entry of the original decree was nonappealable, in that, it was not a special order made after final judgment. This
court, on December 20, 1982, ordered that judgment on the motion to dismiss would be reserved until briefing
was completed because a determination of the appealability question necessarily involved a resolution of the
merits of the appeal.
had the power, pursuant to NRS 17.140, to enter judgment after Sherry's death.
The final divorce decree, however, was entered in Sherry's name. Sherry's death was not
suggested in the record, pursuant to NRCP 5, nor was a motion for substitution of proper
parties made pursuant to NRCP 25(a). Because an administrator or a personal representative
was not substituted for Sherry until after entry of the original divorce decree, this court, in its
order of December 20, 1982, questioned the decree's validity.
[Headnote 3]
Generally, the personal representative of the deceased must be substituted as a party before
the deceased party's estate can be affected by any judgment. Boyd v. Lancaster, 90 P.2d 317,
319 (Cal.App. 1939). Even the presence of a statute similar to NRS 17.140 will not alter the
rule that before a court may issue an order or judgment against or for a deceased party the
personal representative must be substituted. Cf. Dorney v. Reddy, 357 N.Y.S.2d 21
(N.Y.App.Div. 1974) (In the face of N.Y.Civ.Prac. Law and Rules 5016(d), dismissal order
was void because decedent's personal representative had not been substituted). At best, if a
party dies after commencement of an action and after the court has acquired personal
jurisdiction over the party, a judgment rendered against a deceased party without substitution
of the personal representative is voidable. Woolley v. Seijo, 36 Cal.Rptr. 762 (Ct.App. 1964).
Therefore, the judgment entered against Sherry after death was voidable because her personal
representative or administrator was not substituted.
[Headnotes 4-6]
The order from which Don has appealed entered the voidable divorce decree nunc pro tunc
back to July 17, 1979. A post judgment order may be appealed only if it affects the rights of
the parties growing out of final judgment. Wilkinson v. Wilkinson, 73 Nev. 143, 145, 311
P.2d 735, 736 (1957). See also NRAP 3A(b)(2). In Nevada, a judgment may be amended
nunc pro tunc if the change will make the record speak the truth as to what was actually
determined or done or intended to be determined or done by the court. . . . Finley v. Finley,
65 Nev. 113, 119, 189 P.2d 334, 337 (1948), overruled on other grounds, Day v. Day, 80
Nev. 386, 395 P.2d 321 (1964). (Emphasis added.) The exercise of a nunc pro tunc order . . .
depends on the circumstances of a particular case and it is to be granted or refused as justice
may require. Allen v. Allen, 70 Nev. 412, 415, 270 P.2d 671, 672 (1954).
[Headnotes 7-9]
Other jurisdictions have employed nunc pro tunc orders to relate a final divorce decree
back to a point in time before the death of a party
relate a final divorce decree back to a point in time before the death of a party
[i]f the facts justifying the entry of a decree were adjudicated during the lifetime of the
parties of a divorce action, so that a decree was rendered or could or should have
rendered thereon immediately, but for some reason was not entered as such on the
judgment record. . . .
Thrash v. Thrash, 385 So.2d 961, 962-963 (Miss. 1980). See also Berkenfield v. Jacobs, 83
So.2d 265 (Fla. 1955); Becker v. King, 307 So.2d 855 (Fla.App. 1975); Caprita v. Caprita, 60
N.E.2d 483 (Ohio 1945); In re Tabery, 540 P.2d 474 (Wash.App. 1975). The instant case fits
squarely within the general rule regarding nunc pro tunc entry of divorce decrees. Thus, the
nunc pro tunc decree affects the rights of the parties arising out of the final decree because it
validates an otherwise voidable decree of divorce.
2

[Headnote 10]
2. Appealability of the order construing the original and amended divorce decrees.
That portion of the March 23, 1982, order construing the divorce decrees, however, is not
appealable as a special order made after final judgment. The lower court in its July 17th
decision plainly stated that [Don] failed to meet his burden of proving that [the 29.5 acres
were] not the community property of the parties.
3
The formal findings and conclusions filed
on July 31, 1979, and the amended findings and conclusions entered on October 29, 1979,
substantially restated the decision. Finally, in its order construing the divorce decrees, the
court reconfirmed its previous determination that the real property and appurtenances were
the community property of the parties . . . in spite of their method of holding title. Thus, the
March 23rd order construing the original and amended decrees did not affect the rights
arising out of the final judgment. See generally In re Enger's Will, 30 N.W.2d 694 (Minn.
1948); Meadow Valley M. Co. v. Dodds, 6 Nev. 621 {1S71); Schaff v.
____________________

2
Even under the general rule of Finley, the nunc pro tunc decree should be upheld. Although this power
cannot be used to correct judicial errors or omissions, the court has the inherent power to correct mere clerical
errors at any time. Finley, at 118-119, 189 P.2d at 336-337. This court has previously described entry of the
judgment as a ministerial act. See Coleman v. Moore & McIntosh, 40 Nev. 139, 241 P.217 (1925). Failure to file
a final divorce decree then is a clerical omission.

3
Because the original decree is not on appeal, we express no opinion on the ruling which placed the burden
on Don to prove that the realty was his separate property. See Peters v. Peters, 92 Nev. 687, 557 P.2d 713
(1976).
Nev. 621 (1871); Schaff v. Kennelly, 69 N.W.2d 777 (N.D. 1955).
3. Conclusion.
The lower court's order which entered the original decree nunc pro tunc as of July 17,
1979, affected the rights arising out of final judgment because it validated the otherwise
voidable decree which was entered after Sherry's death without substituting her personal
representative. Thus, that portion of the March 23rd order is a special order made after final
judgment appealable under NRAP 3A(b)(2).
That part of the March 23rd order which construed the original and amended divorce
decrees was consistent with the court's original holdings and did not affect the parties' rights
arising out of final judgment. Consequently, the appeal from that part of the March 23rd order
which construed the divorce decrees is hereby dismissed.
The only issue properly before this court is the propriety of the nunc pro tunc entry of the
original divorce decree. As the analysis of the appealability issue indicates, the lower court
did not err in entering the divorce decree nunc pro tunc as of July 17, 1979. Thus, that part of
the March 23rd order which granted the motion for nunc pro tunc entry of the original divorce
decree is affirmed.
Mowbray, Steffen, and Gunderson, JJ., concur.
Springer, J., dissenting:
I would reverse the judgment in this case. The decree of divorce was not filed until after
the death of the wife. NRCP Rule 58(c) provides that a judgment is not effective until it is
entered and that it is not entered until it is filed. There was, therefore, no judgment in effect at
the time of the wife's death. When the wife died, property held in joint tenancy by the two
parties vested in the surviving husband, the appellant; the question of divorce became moot.
See Fox v. Fox, 84 Nev. 368, 441 P.2d 678 (1968); LaGrange Constr. v. Del E. Webb Corp.,
83 Nev. 524, 435 P.2d 515 (1967); Fitzharris v. Phillips, 74 Nev. 371, 333 P.2d 721 (1958).
In my view, since the unfiled judgment was not effective for any purpose,
1
the death of
the wife fixed the parties' status and property rights in joint tenancy property: the husband
became a single man and the sole holder of property held by his wife and him in joint tenancy
at the time of the wife's death.
NRS 17.140 provides that if a party dies after the decision, but before the judgment (the
case here), the court may nevertheless render judgment on the decision. There are three
reasons why I think that this statute does not apply to the joint tenancy property in this
case.
____________________

1
NRCP 58(c).
think that this statute does not apply to the joint tenancy property in this case.
The first reason is that given abovethe deceased's interest vested irrevocably in the
survivor by the operation of the law at the time of death. The second reason is that the court's
pre-death decision does not clearly adjudicate the matter, does not clearly order or declare the
transmutation of joint tenancy property into community property.
The trial court merely concluded that the plaintiff has failed to meet his burden of proving
that real property in Lyon County is not the community property of the parties. There was
not, however, in the decision itself any definitive order, declaration, or decision to the effect
that the property in question had become community property.
The third reason for my opinion is that I do not believe the court had the power to
transmute this joint tenancy property into community property.
NRS 125.150(1)(b)(2), which went into effect a few weeks before the pre-death decision,
provides that a divorce court may dispose of property placed in joint tenancy by the parties
on or after July 1, 1979. This property was not placed in joint tenancy on or after July 1,
1979. Therefore, I would conclude, the legislature did not intend the court to dispose of such
property in a divorce case. Further, even if the court had the power to dispose of such
property, I do not believe that gives the court the power to transmute or change the nature of
the property into community property, even if it had chosen to do so.
Certain issues other than those relating to the joint tenancy or marital status issue might be
determined by a nunc pro tunc order, but this need not be considered in this appeal.
I would reverse and enter judgment declaring appellant-husband to be sole owner of the
joint tenancy property.
____________
101 Nev. 76, 76 (1985) Component Systems v. District Court
COMPONENT SYSTEMS CORPORATION, a Nevada Corporation; LAS VEGAS
PLYWOOD AND LUMBER, INC., a Nevada Corporation; ST. GEORGE PLYWOOD AND
LUMBER, INC., a Utah Corporation; ROGER DIEHL, an Individual; CLAUDE DIEHL, an
individual; and VIOLET DIEHL, an Individual, Petitioners, v. EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, Respondent.
No. 14751
January 4, 1985 692 P.2d 1296
Original petition for writ of mandamus.
Guarantors petitioned for writ of mandamus after district court failed to order lender to
reconvey deeds of trust securing personal guaranties. Petitioners alleged the deeds could no
longer be enforced because such enforcement was barred under the one-action rule after they
brought action against lender for various causes and lender counterclaimed without seeking
recovery on their personal guaranties. The Supreme Court held that: (1) the transactions
constituted one debt for purposes of the one-action rule; (2) counterclaims asserted by
corporation were not mandatory; and (3) raising the counterclaims without assertion of the
personal guaranties barred enforcement of the deeds of trust given to secure those personal
guaranties under the one-action rule.
Writ granted.
Ordowski & Eads, Las Vegas, for Petitioners.
Vargas & Bartlett, Las Vegas, for Respondent.
1. Pleading.
Party opposing grant of writ of mandamus was not entitled to have a reply to its answer to the petition
stricken, even though the Supreme Court did not order any briefs on the petition, because its substantial
rights were not prejudiced by the reply brief. NRAP 2, 21(b).
2. Guaranty.
Under California law, a guaranty is a form of suretyship obligation and is subject to all provisions of law
relating to suretyship. West's Ann.Cal.Civ.Code 2787.
3. Principal and Surety.
Unlike a contract of guaranty, contract of suretyship is an engagement which is primary or original and
absolute or unconditional.
4. Mortgages.
Execution of personal guaranties of corporate loans and execution of deeds of trust allegedly securing the
guaranties were all one transaction with underlying corporate loans and guaranties for the purposes of
the Nevada and Utah one-action rules, applying the distinction between guarantors,
whose obligations are wholly separate from the principal obligation guaranteed, and
sureties, co-obligors with the principal debtor, where "guaranties" were, under
California law, a form of suretyship and where, of five deeds of trust, three made no
mention of securing the "guaranties," but stated they were securing corporate
indebtedness, and one stated that it secured both the guaranty and the corporate
indebtedness.
the Nevada and Utah one-action rules, applying the distinction between guarantors, whose obligations are
wholly separate from the principal obligation guaranteed, and sureties, co-obligors with the principal
debtor, where guaranties were, under California law, a form of suretyship and where, of five deeds of
trust, three made no mention of securing the guaranties, but stated they were securing corporate
indebtedness, and one stated that it secured both the guaranty and the corporate indebtedness. West's
Ann.Cal.Civ.Code 2787; NRS 40.340; U.C.A. 1953, 78-37-1.
5. Set-Off and Counterclaim.
Compulsory-counterclaim rule did not require lender, defendant in action by debtors' guarantors for
alleged breach of financing agreements, wrongful rejection of tender of real property in lieu of foreclosure
and trade libel, to make counterclaims asserting its rights to repayment of loans and to payment by the
corporate guaranties. NRCP 13(a).
6. Mortgages.
One-action rule precluded enforcement of deeds of trust given to lender by individual guarantors of
corporations' debts after lender, in action against it by the individual guarantors, filed permissive
counter-claims which asserted action against underlying corporate guaranties but failed to assert action on
the personal guaranties. NRS 40.340.
OPINION
Per Curiam:
Over a four year period, beginning March 28, 1979, Walter Heller Western, Inc. (Heller,
Inc.) entered into a series of financing agreements with the corporate petitioners. To secure
the Heller, Inc. loans, Component Systems Corp., Las Vegas Plywood & Lumber, Inc. and St.
George Plywood & Lumber, Inc. each executed an Accounts Financing Security
Agreement, an Inventory Loan Security Agreement and a Chattel Mortgage Security
Agreement. All loans to the corporations were cross-collateralized. Each corporate loan was
also guaranteed by the other two corporations.
The corporations' officers also executed personal guaranties of the corporate loans. Heller,
Inc. contends that the personal guaranties were secured by deeds of trust on real estate held by
the officers as individuals. Specifically, on March 6, 1979, Roger, Claude and Violet Diehl
guaranteed payment of the Heller, Inc. loans to St. George Plywood. On the same day, Claude
and Violet executed a trust deed on the St. George property in Washington County, Utah,
and on the Salt Lake City property in Davis County, Utah, to secure the payment of all
indebtedness . . . owing by St. George Plywood & Lumber, Inc. to Walter E. Heller Western
Incorporated.
On June 7, 1979, Roger, Claude and Violet guaranteed the Heller, Inc. loans to Las Vegas
Plywood. Again, on the same day, Claude and Violet secured the payment of all
indebtedness .
. . . owing by Las Vegas Plywood and Lumber, Inc. to Walter E. Heller Western
Incorporated by executing a trust deed on the Nellis property in Clark County, Nevada.
This trust deed was subsequently modified to state that it guaranteed all of Claude's and
Violet's obligations under their guaranty dated June 7, 1979. On October 23, 1981, Roger
secured the payment of all indebtedness . . . owing by Las Vegas Plywood & Lumber, Inc. to
Walter E. Heller Western Incorporated by executing a deed of trust on the Viking property
in Clark County.
Finally, on April 23, 1982, Roger guaranteed the Heller loans to Component Systems. This
guaranty, along with the payment of all indebtedness of Component Systems Corporation,
was secured with a deed of trust executed on the same date by Roger on the Henderson
property in Clark County.
Around August of 1982, defaults occurred on all of the corporate loans. A demand letter
was sent on October 1, 1982, by Heller, Inc. to all three corporations and the personal
guarantors detailing all defaults in payments which amounted to $1,400,367.58. The defaults
were not cured, so Heller caused notices of breach and election to sell to be recorded on all
the secured properties.
1
The trustee's sales have been postponed.
On December 15, 1982, the petitioners brought an action in the Eighth Judicial District
Court against Heller, Inc. and two of its officers. The complaint alleged (1) that Heller, Inc.
breached the financing agreements by failing to extend credit, to relinquish and to reconvey
certain security and to allocate the debt; (2) that Heller, Inc. was over-secured and wrongfully
rejected a tender of real property in lieu of foreclosure; and (3) trade libel. Heller, Inc.
answered on January 31, 1983, and raised ten counterclaims. In the counterclaims Heller, Inc.
asserted its rights to possession of the corporations' inventory and chattels, to repayment of
the loans and to payment by the corporate guaranties. Heller, Inc. did not counterclaim for
payment on the personal guaranties.
On February 11, 1983, the petitioners moved for reconveyance of the deeds of trust which
purportedly secured the personal guaranties. The petitioners argued that all of the loans,
corporate guaranties and personal guaranties constituted one single cross-collateralized debt
secured by the various deeds of trust. Because Heller, Inc. had initiated a trustee's sale, the
petitioners continued, its counterclaims on the underlying corporate loans and guaranties
violated the "one action" rules of Nevada and Utah.
____________________

1
Two of the five parcels of real estate allegedly securing the individual guaranties are located in Utah. The
deeds of trust for the Utah parcels require Utah law to be applied. The three remaining parcels of real estate are
in Clark County, Nevada. There exists no apparent distinction between the Utah and Nevada one action rules.
Compare NRS 40.430 with Utah Rev. Stat. 78-37-1.
guaranties violated the one action rules of Nevada and Utah. The petitioners concluded that
Heller, Inc. had waived its security and the petitioners were entitled to an order reconveying
the deeds of trust.
[Headnote 1]
The district court, however, found that Heller, Inc. had not violated the one action rule
and denied the motion on March 15, 1983. The petitioners have raised the same arguments in
an original petition for a writ of mandamus filed on April 7, 1983. The court ordered an
answer and Heller, Inc. responded on July 29, 1983.
2

In Coombs v. Heers, 366 F.Supp 851 (D.Nev. 1973), the federal district court held that the
promisee on a guaranty could not be barred by Nevada's one action rule from attaching the
real and personal property of the guarantors even though the promisee had not exhausted the
trust deed securing the underlying debt. There, the guarantors argued that their unsecured
guaranty and the underlying debt which was secured by a deed of trust constituted one debt
and that the one action rule required that the promisee first exhaust the security. Id. at 853.
This argument, however, was rejected because of the traditional separateness of the guaranty
of its underlying debt. Id. at 854. This result was approved in First National Bank v. Barengo,
91 Nev. 396, 536 P.2d 487 (1975). In Barengo, this court rejected the guarantor's attempt to
assert the one action rule as a bar to the promisee's recovery on the guaranty where neither the
deed of trust securing the underlying debt nor the debt itself had been exhausted. Again, the
decision was predicated on the rule that a contract of guaranty is to be separately considered.
Id. at 397, 536 P.2d at 487. Based on similar reasoning, the Coombs-Barengo rule has been
extended to prohibit the application of the protections of Nevada's deficiency judgment
statutes, NRS 40.451, et seq., to the contract of guaranty. See Manufacturers & Traders Trust
v. Dist. Ct., 94 Nev. 551, 583 P.2d 444 (1978). In Thomas v. Valley Bank of Nevada, 97 Nev.
320, 629 P.2d 1205 (1981), this court reaffirmed the Manufacturers & Traders rule by noting
the distinction in Nevada between guarantors, whose obligations are wholly separate from
the principal obligation guaranteed, and sureties, who are co-obligors with the principal
debtor. Thomas, at 323, 629 P.2d at 1207. See also Glens Falls Ins. v. First Nat'l Bank, S3
Nev. 196
____________________

2
The petitioners filed a reply to Heller, Inc.'s answer. The reply does not raise any new issues nor did it
affect the outcome of this petition. Nevertheless, Heller, Inc. has filed a motion to strike the reply because this
court did not order any briefs on the petition pursuant to NRAP 21(b). Because Heller, Inc.'s substantial rights
have not been prejudiced by petitioner's reply brief, we hereby order the motion denied. See NRAP 2.
83 Nev. 196, 427 P.2d 1 (1967); Short v. Sinai, 50 Nev. 346, 259 P.2d 417 (1927). The court
noted that, although this traditional distinction remained in force in Nevada, it had been
abolished, pursuant to Cal. Civ. Code 2787, in California.
The instant case is the negative of the Coombs and Barengo cases. Here, the guarantors are
attempting to assert the one action rule as a bar to the action foreclosing on the deeds of trust
allegedly securing the guaranties because the promisee/lender has also initiated an action
against the underlying corporate loans and guaranties. Although in Coombs and Barengo the
underlying debt, not the guaranty, was secured, this distinction is not legally relevant. Thus,
the dispositive issue in the case at hand is whether all of the transactions constitute one debt
or are separate contracts of guaranties and loans.
All of the individual guaranties were executed on the same form. That form provides that
the guaranty is to be governed by California law. Because California has abolished the
distinctions between guarantors and sureties, see Cal. Civ. Code 2787 (1939),
3
the
petitioners contend that the personal guarantors are co-makers on the corporate obligations.
Therefore, the petitioners conclude, the one action rule is applicable.
Heller, Inc.'s sole response to this argument is to cite a footnote in Union Bank v. Gradsky,
71 Cal.Rptr. 64, 67 n. 3 (Cal.App. 1968), which states that the California one action rule is
inapplicable to suits by a secured creditor against a guarantor, endorser or other surety. In
Union Bank, the California court utilized the principles of estoppel to bar the lender from
recovering from the guarantor after exercising its power of sale under the deed of trust
securing the underlying obligation. The Union Bank court estopped the lender from
recovering from the guarantor because the operation of California's anti-deficiency statute
4
effectively destroyed the guarantor's subrogation rights against the principal debtor.
____________________

3
Cal. Civ. Code 2787 provides that:
The distinction between sureties and guarantors is hereby abolished. The terms and their derivatives,
wherever used in this code or in any other statute or law of this State now in force or hereafter enacted, shall
have the same meaning, as hereafter in this section defined. A surety or guarantor is one who promises to
answer for the debt, default, or miscarriage of another, or hypothecates property as security therefor.
Guaranties of collection and continuing guaranties are forms of suretyship obligations, and except in so far as
necessary in order to give effect to provisions specially relating thereto, shall be subject to all provisions of
law relating to suretyships in general.

4
Cal. Code of Civ. Pro. 580d provides in pertinent part that:
No judgment shall be rendered for any deficiency upon a note secured by a deed of trust or mortgage
upon real property hereafter executed in any case in which the real property has been sold by the mortgagee
or trustee under power of sale contained in such mortgage or deed of trust. . . .
destroyed the guarantor's subrogation rights against the principal debtor. Thus, the issue now
under consideration was not dispositive in Union Bank and footnote 3 is properly considered
as dicta. Additionally, both cases relied on by Union Bank in footnote 3 involved transactions
which occurred before the 1939 amendment to 2787 which abolished the distinctions
between guarantors and sureties. See Everts v. Matteson, 132 P.2d 476 (Cal. 1942); Loeb v.
Christie, 57 P.2d 1303 (Cal. 1936).
[Headnotes 2, 3]
Since the 1939 amendment of 2787 eliminating the distinction between guarantors and
sureties, it is clear that the rule in contracts of guaranty that the obligations of the principal
debtor and that of the guarantor were entirely independent obligations was abolished.
Wiener v. Van Winkle, 78 Cal.Rptr. 761, 768 (Cal.App. 1969). In California, a guaranty is
now a form of suretyship obligation and is subject to all provisions of law relating to
suretyship. American Guaranty Corp. of Cal. v. Stoody, 41 Cal.Rptr. 69, 70 (Cal.App. 1964).
Unlike a contract of guaranty, a contract of suretyship, which according to 2787 the
personal guarantors in this case executed, is an engagement which is primary or original
and absolute or unconditional. 38 Am.Jur.2d Guaranty 15 (1968).
[Headnote 4]
Given the distinctions between guarantors and sureties drawn in Coombs and its progeny
and the fact that pursuant to Cal. Civ. Code 2787 the personal guarantors are co-obligors
of the corporate borrowers, all the transactions under review should be treated as one loan for
the purposes of the one action rule. This conclusion is strengthened by the form of the deeds
of trust which allegedly secured the guaranties. Of the five trust deeds, three of them make
no mention of securing the guaranties. Those three deeds state that they are securing the
indebtedness of the corporate borrowers owing to Heller, Inc. The fourth deed of trust
initially contained similar language but was subsequently modified to clarify that it was
securing the individual's guaranty. The fifth deed states that it secures both the guaranty and
the corporate indebtedness. It is apparent that, at least as to four of the deeds of trust, the
parties themselves intended the deeds to secure the corporate loans, not the personal
guaranties of those loans.
Heller, Inc. also raises a policy argument against the imposition of the one action rule in
the present case. It notes that two of the traditional purposes of the one action rule were to
prevent harassment of the debtor and to avoid a multiplicity of actions. See Nevada
Wholesale Lumber Co. v. Myers Realty, Inc., 92 Nev. 24, 544 P.2d 1204 (1976); Paramount
Ins., Inc. v. Rayson & Smitley, S6 Nev. 644
& Smitley, 86 Nev. 644, 472 P.2d 530 (1970); McMillian v. United Mortgage Co., 82 Nev.
117, 412 P.2d 604 (1966). These purposes would not be effectuated, Heller, Inc. contends,
because it was compelled to raise the counterclaims against the corporate loans and
guaranties by NRCP 13(a).
5

[Headnote 5]
Chapter 40 of the Nevada Revised Statutes provides a comprehensive scheme of creditor
and debtor protection with respect to the foreclosure and sale of real property subject to
security interests. Keever v. Nicholas Beers Co., 96 Nev. 509, 512, 611 P.2d 1079, 1082
(1980). Under that scheme, once a creditor has commenced a trustee's sale of the security, the
creditor may usually obtain a personal judgment against the debtor only by complying with
NRS 40.451 et seq. See generally Nevada Land & Mtge. v. Hidden Wells, 83 Nev. 501,
504-505, 435 P.2d 198, 200 (1967). NRS 40.455 requires that before the court may award a
deficiency judgment the security must be sold and a hearing to determine the fair market
value of the security at the date of the sale must be conducted pursuant to NRS 40.457.
Because at the time of serving the pleading Heller, Inc. had not sold the security nor had it
conducted a hearing pursuant to NRS 40.457, it had no claim for a personal judgment against
the petitioners. Thus, NRCP 13(a) did not compel Heller, Inc. to raise the counterclaims
against the corporate loans and guaranties. See Esquire, Inc. v. Varga Enterprises, 185 F.2d
14, 18 (7th Cir. 1950); United States v. Chelsea Towers, Inc., 12 Fed.R.Serv.2d 13a.12
(case 1) (D. N.J. 1969); 3 Moore's Federal Practice 13.14 [1] at 13-22 (1983).
[Headnote 6]
In summary, in light of Cal. Civ. Code 2787 and the form of the trust deeds themselves,
the personal guaranties and the underlying corporate debts are to be treated as one
obligation. That obligation was secured by several deeds of trust upon which Heller, Inc. had
instituted nonjudicial sales. When Heller, Inc. counterclaimed on its rights under the
corporate loans and obligations, it was, in effect, simultaneously seeking relief under the
security and the underlying debt. Those counterclaims were not compulsory under NRCP
13(a). Consequently, Heller, Inc. violated NRS 40.430 and forfeited its security.
____________________

3
NRCP 13(a) provides in pertinent part that:
A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader
has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the
opposing party's claim and does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction. . . .
lated NRS 40.430 and forfeited its security. Accordingly, the writ of mandamus shall issue
and the district court is hereby ordered to issue an order requiring Heller, Inc. to reconvey all
the deeds of trust given to Heller, Inc. by the petitioners.
____________
101 Nev. 83, 83 (1985) Schofield v. Copeland Lumber
WARREN SCHOFIELD and OLIVE SCHOFIELD, Appellants, v. COPELAND
LUMBER YARDS, INC., Respondent.
No. 14904
January 4, 1985 692 P.2d 519
Appeal from summary judgment in an action to foreclose a materialman's lien and from an
order denying motion for reconsideration. Third Judicial District Court, Lyon County; Mario
G. Recanzone, Judge.
In action against homeowners to foreclose a materialman's lien, the district court entered
summary judgment in favor of materialman, and homeowners appealed. The Supreme Court
held that lien was invalid as matter of law, since materialman did not fully or substantially
comply with lien statute by failing to give homeowners notice of terms, time given and
condition of contract under which material was supplied.
George E. Franklin, Yerington, for Appellants.
George M. Keele, Gardnerville, for Respondent.
1. Mechanics' Liens.
Compliance with provisions of lien statutes is placed at issue by complaint for foreclosure and need not
be raised affirmatively in the answer.
Object of lien statutes is to secure payment to those who perform labor or furnish material to improve
property of the owner.
3. Judgment.
Summary judgment is only appropriate when pleadings and papers on file show that there is no genuine
issue of fact, and that the moving party is entitled to judgment as a matter of law.
Since materialman did not fully or substantially comply with lien statute by failing to include in notice of
lien statement of terms, time given and conditions of contract for supply of material, lien was invalid as a
matter of law. NRS 108.226, subd. 4(d).
OPINION
Per Curiam:
Sometime prior to November 5, 1980, appellants Warren and Olive Schofield entered into
a contract with Herbert Penrose, a general contractor doing business as Nevada Homes and
Apartments, to construct a home for them on their property in Lyon County, Nevada.
Appellants at that time resided in California and relied upon Mr. Penrose to perform the
duties of a contractor, including contracting for the delivery of building materials to their
homesite.
In late November of 1980, appellants received a registered letter from respondent
Copeland Lumber Yards, Inc., informing them that respondent was supplying lumber and
other building materials to their building site. In the spring of 1981, Mrs. Schofield had a
telephone conversation with respondent's representative, during which he informed her that
Mr. Penrose was in arrears on payment on the account he had set up in appellants' name.
According to her affidavit, Mrs. Schofield responded that appellants had advanced Mr.
Penrose sufficient money to pay for all material. Significantly, these were the only
communications between the parties of which the court had any evidence when it granted
judgment in this case.
Respondent subsequently took measures to perfect a lien upon appellants' property for the
arrearages, and commenced this foreclosure proceeding. The statutory directives for
perfection of a materialman's lien were followed in all particulars except that a statement of
the terms, time given and conditions of respondent's contract was not included in the notice of
lien as required by NRS 108.226(4)(d). Respondent moved for summary judgment and the
court entered judgment in its favor. Appellants assert that the grant of summary judgment was
in error because respondents did not demonstrate that they had fully complied with the lien
laws. We agree.
[Headnote 1]
The mechanics lien is a creature of statute, unknown at common law. Strict compliance
with the statutes creating the remedy is therefore required before a party is entitled to any
benefits occasioned by its existence. . . . If one pursues his statutory remedy by filing a
complaint to perfect a mechanic's lien, he necessarily implies full compliance with the
statutory prerequisites giving rise to the cause of action. Fisher Bros., Inc. v. Harrah Realty
Co., 92 Nev. 65, 67, 545 P.2d 203 (1976). Although compliance with the provisions of the
lien statutes is placed at issue by the complaint for foreclosure and need not be raised
affirmatively in the answer, Fisher Bros., supra, in this case appellants' answer did
affirmatively raise the issue by denying such compliance.
case appellants' answer did affirmatively raise the issue by denying such compliance.
[Headnote 2]
The object of the lien statutes is to secure payment to those who perform labor or furnish
material to improve the property of the owner. Peccole v. Luce & Goodfellow, 66 Nev. 360,
212 P.2d 718 (1949). We have held on a number of previous occasions that where there is
substantial compliance with the lien statutes notices, liens and pleadings arising out of those
statutes will be liberally construed in order to effect the desired object. Lamb v. Goldfield
Lucky Boy Min. Co., 37 Nev. 9, 138 P. 902 (1914); Peccole, supra. Very general statements
of the terms, times given and conditions of a contract have been accepted as being in
substantial compliance with the statute. See Ray Heating Products v. Miller, 74 Nev. 124,
126, 324 P.2d 237, 238 (1958). However, we do not think that a notice of lien may be so
liberally construed as to condone the total elimination of a specific requirement of the statute.
This is particularly true where, as in the instant case, the property owners had no personal
knowledge of the terms of respondent's contract with Mr. Penrose. The record in this case
indicates that this lack of knowledge placed them at a considerable disadvantage in defending
against the motion for summary judgment.
NRS 108.226(4)(d) clearly provides that the owner of the improved property be informed
to the terms of the contract which ultimately results in a lien against his property. In Ray
Heating Products v. Miller, supra, we held that a lien claim was not insufficient for failure to
state the terms, time given and conditions of the contract, explaining that if there are no
special terms, time or conditions given, none can be stated, and in the absence of any such
specifications, or proofs to the contrary, the law would presume that none existed, and that
the materials were to be paid for on delivery. 74 Nev. at 126, 324 P.2d at 238. In this case,
however, the court could not have presumed that the contract terms were for payment on
delivery. Mrs. Schofield's affidavit, submitted in opposition to the motion for summary
judgment, made clear that, whatever the actual terms of the contract, they apparently were not
for payment on delivery. In fact, she questioned why respondent had not demanded
compliance with these terms if it was experiencing difficulty in collecting from Mr. Penrose.
The information before the court on the motion for summary judgment, therefore,
indicated that the terms of the contract, which are expressly accorded materiality by the lien
statute, were omitted and that such omission under the facts if this case was fatal to the lien.
Appellants stated sufficient facts in Mrs. Schofield's affidavit to rebut the presumption that
the contract was on a payment on delivery basis. Obviously, had appellants been provided
with the information to which the statute entitles them, it is possible that they would
have been able to raise other issues of fact, e.g., issues relating to the timeliness of the
filing of the lien and the notice given them.
field's affidavit to rebut the presumption that the contract was on a payment on delivery basis.
Obviously, had appellants been provided with the information to which the statute entitles
them, it is possible that they would have been able to raise other issues of fact, e.g., issues
relating to the timeliness of the filing of the lien and the notice given them.
[Headnotes 3, 4]
Summary judgment is only appropriate when the pleadings and papers on file show that
there is no genuine issue of fact, and that the moving party is entitled to judgment as a matter
of law. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260 (1981). Since respondent did
not fully or substantially comply with the lien statutes, the lien is invalid as a matter of law,
and respondent is not entitled to judgment.
Accordingly, the summary judgment is reversed.
____________
101 Nev. 86, 86 (1985) Biasi v. Leavitt
BRUNO BIASI and ELISA BIASI as Co-Trustees of the BRUNO BIASI FAMILY
TRUST, Appellants, v. LADELL LEAVITT, Respondent.
No. 14937
January 4, 1985 692 P.2d 1301
Appeal from a judgment determining that respondent had established title by adverse
possession in a property dispute. Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Neighbors brought action to eject defendant from disputed strip of land of which they were
record owners. The district court entered judgment determining that defendant had
established title by adverse possession over the disputed property, and plaintiffs appealed.
The Supreme Court held that defendant failed to adequately demonstrate that he fulfilled tax
payment requirement and, therefore, failed to establish all facts necessary to constitute an
adverse possession.
Reversed.
Paul L. Larsen, Las Vegas, for Appellants.
Leavitt & Leavitt, Las Vegas, for Respondent.
Defendant, who constructed home which encroached upon strip of land of which neighbors were record
owners, failed to adequately demonstrate that he fulfilled statutory tax payment
requirement and, therefore, failed to establish all facts necessary to constitute
adverse possession of the disputed property; fact that he was taxed on improvements
did not necessarily mean that he paid taxes on property upon which they rested.
demonstrate that he fulfilled statutory tax payment requirement and, therefore, failed to establish all
facts necessary to constitute adverse possession of the disputed property; fact that he was taxed on
improvements did not necessarily mean that he paid taxes on property upon which they rested. NRS
11.150.
A party claiming adverse possession has burden to affirmatively establish necessary facts by clear and
competent proof in order to overcome presumption that possession of the land is under regular title.
NRS 11.150.
OPINION
Per Curiam:
This is a boundary dispute. Appellants, the Biasis, brought an action to eject respondent
from a disputed strip of land of which they are the record owners. Respondent Leavitt
successfully defended the action, claiming that he had adversely possessed the land for the
statutory period. The sole issue on appeal is whether respondent satisfactorily established his
compliance with the statutory requirement of NRS 11.150 that a party pay all taxes assessed
against the land in question for a period of five years before adverse possession can be
established.
1
We conclude that he did not and reverse.
[Headnote 1]
The problem in this case arose as a result of two government surveys having been made of
the area in which the parties' properties are located. The first survey was performed in 1881
and established boundary lines for those sections of land already patented and occupied. The
area in dispute in this case was one of these sections. The second survey, made in 1934, was
undertaken to correct certain errors in the 1881 survey, but was not intended to disturb
boundary lines or affect vested interests in the already patented and occupied lands. Section
corner markers placed during the 1934 survey within the already patented lands were not
meant to designate property corners, but were established as reference points from which
surrounding, as yet unpatented, land was to be measured.
The Biasi and Leavitt properties are contiguous. Their common recorded boundary line
coincides with the section line dividing Sections 35 and 36, Township 13 South, Range 70
East, as established by the 1SS1 survey.
____________________

1
11.150 Additional requirements for adverse possession: Occupation continuously for 5 years; payment of
taxes. In no case shall adverse possession be considered established unless it be shown, in addition to the
requirements of NRS 11.120 or 11.140, that the land has been occupied and claimed for the period of 5 years,
continuously, and that the party or persons, their predecessors and grantors have paid all taxes, state, county and
municipal, which may have been levied and assessed against the land for the period mentioned, or have tendered
payment thereof.
ing Sections 35 and 36, Township 13 South, Range 70 East, as established by the 1881
survey. The Biasis own the NW 1/4 of the NW 1/4 of Section 36. Leavitt owns a smaller
parcel located within the NE 1/4 of the NE 1/4 of Section 35. Unfortunately, Leavitt did not
have an adequate survey made of his property before he constructed a home on his property.
He incorrectly assumed that the 1934 section marker designated his property corner. As a
result of this error, the building encroaches approximately thirty-five feet onto the Biasis'
land.
At trial, respondent produced tax receipts for three years showing that he had paid taxes on
3.16 acres, with improvements, in section 35. He also testified that he paid a similar
assessment for a number of additional years. The major portion of the improvements for
which respondent was billed stand in the disputed area, which is part of section 36.
Appellants produced tax receipts showing that they had paid the taxes on their land in section
36, including the disputed area, for the years in question. Although there was no direct
evidence that respondent had paid taxes in any part of section 36, the trial court apparently
assumed that the payment of taxes for the improvements constituted payment on the land as
well, and concluded that there had been a double billing and double payment of taxes on the
disputed strip of land. Relying on the holding in Zubieta v. Tarner, 76 Nev. 243, 351 P.2d 982
(1960), the court determined that respondent had satisfied the tax payment requirement. We
disagree.
In Zubieta, supra, we held that where taxes were paid by both the record owner of the
property and an adverse claimant, the claimant's payment was sufficient to satisfy the
statutory requirement and the fact that the legal owner had also paid taxes on the property
would not defeat the claim. In that case, however, the property descriptions in the parties'
deeds overlapped so that each had been assessed and paid taxes on the disputed area. This is
not true in the instant case. As noted, respondent's deed describes property within section 35
while appellants' deed describes property within section 36. There is no overlap in the legal
description of the parties' land in their respective deeds.
Respondent contends, however, that Sorensen v. Costa, 196 P.2d 900 (Cal. 1948) supports
the trial court's determination that he paid taxes on the disputed area. In Sorensen it was held
that, where a claimant of title by adverse possession paid the taxes actually assessed on the
land occupied, a misdescription of the land on the tax rolls or in tax receipts would not affect
the efficacy of payment under the California statute requiring payment of taxes in order to
establish adverse possession. In that case, however, the court also noted that the claimant was
required to show that the particular land occupied was assessed and the taxes paid by him or
his predecessors; it was not sufficient to show that he thought or supposed he was paying
taxes on the land occupied when the land was assessed under a correct description that
applied to other land.
he thought or supposed he was paying taxes on the land occupied when the land was assessed
under a correct description that applied to other land. 196 P.2d at 908. In the instant case,
although respondent demonstrated that he had erred in placing his property line according to
the 1934 survey, he failed to show that the tax assessor's office operated under a similar
mistake. In fact, the only evidence appearing in the record indicates that the assessor's office
probably used the correct survey to establish section lines in the area and therefore correctly
assessed respondent's property. Moreover, there is no evidence that the assessment of
respondent's land was made on the basis of an on-site measurement of the area rather than the
deed description so that respondent was billed for both his own land in section 35 plus the
disputed area in section 36. Again, the contrary appears from the record. Respondent was
apparently assessed and paid taxes upon only the amount of land described in the tax receipts
as being entirely within section 35. Consequently, it does not appear that respondent paid
taxes on the additional land he claims. See Platt v. Martinez, 563 P.2d 586 (N.M. 1977)
(where legal description of the two tracts of land contained in the respective deeds of the
adverse claimant and neighbor do not conflict and contain no overlap, and claimant paid taxes
only on the property covered by his deed, adverse possession claim was defeated for want of
payment of taxes even though the land in question had been occupied by claimant) and
Trappett v. Davis, 633 P.2d 592 (Idaho 1981) (where tax assessment results in adverse
claimants' payment of taxes on some, but not all, of claimed area, claimants were entitled to
only that additional land on which they had actually paid taxes).
Finally, the fact that respondent was taxed on improvements does not necessarily mean
that he paid taxes on the property upon which they rested. In Stephens v. Hurly, 563 P.2d 546
(Mont. 1977), the court was faced with a similar situation. In that case, the adverse claimant
had placed a mobile home, water and sewer lines and various other improvements on his
neighbor's property. He paid taxes on the improvements, but the evidence at trial showed that
his property tax bill had been assessed on the basis of his record holdings only. The only
value added to the tax bill was the value of the improvements; the additional land on which
the improvements were situated was not assessed to him. Consequently, the court upheld the
trial court's determination that no taxes had been paid on the underlying land and adverse
possession had not been established.
[Headnote 2]
A party claiming adverse possession has the burden to affirmatively establish the necessary
facts by clear and competent proof in order to overcome the presumption that possession
of the land is under the regular title.
in order to overcome the presumption that possession of the land is under the regular title.
McDonald v. Fox, 20 Nev. 364, 22 P. 234 (1889). Respondent did not adequately
demonstrate that he fulfilled the tax payment requirement contained in NRS 11.150 and has,
therefore, failed to establish all facts necessary to constitute an adverse possession.
Accordingly, the judgment is reversed.
____________
101 Nev. 90, 90 (1985) Potts v. Vokits
DONALD POTTS, Appellant, v. WILLIAM VOKITS, MARY
LOU VOKITS, VICTOR L. SMITH, Respondents.
No. 15041
January 4, 1985 692 P.2d 1304
Appeal from a judgment finding respondent Smith in adverse possession of land and
finding respondent Vokits to be entitled to damages; Fifth Judicial District Court, Nye
County; William P. Beko, Judge.
Action was brought concerning ownership of land. The district court held that one
landowner had acquired the land at issue through adverse possession, and granted damages
against other claimant in favor of purchaser of land from claimant for breach of warranty of
marketability in conveyance of part of the land at issue. Appeal was taken. The Supreme
Court held that: (1) fact that adverse possessor's statement of taxable property referred to a
residence slightly over record parcel boundary line and a garage entirely within boundary of
another lot did not warrant inferring that taxes were assessed for the entire property; (2) since
person claiming land through doctrine of adverse possession paid taxes only on 8,061 square
feet of land, that person was not in adverse possession of the entire 33,930 square-foot parcel
claimed; and (3) since adverse possession claimant was not in adverse possession of the land
in question, award of damages to purchaser of lot would be reversed.
Reversed.
[Rehearing denied November 5, 1985]
David Horton, Carson City, for Appellant.
David C. Polley, Las Vegas, for Respondent Vokits.
Richard C. Maurer, Las Vegas, for Respondent Smith.
1. Parties.
An indispensable party is a party who is necessary to an action but who, for some reason, cannot be
made a party to that action.
2. Parties.
If a necessary party is found to be unavailable, the court must decide whether in equity and good
conscience the action should proceed.
3. Parties; Pretrial Procedure.
If in equity and good conscience an action cannot proceed without a necessary party, that party is
indispensable, and the case must be dismissed. NRCP 19(b).
4. Quieting Title.
Absence of two parties in action brought to determine ownership of land did not deprive district court of
jurisdiction, where there was no reason to believe that absence of the parties would result in complete relief
not being accorded the present parties, and where there was no evidence that any interest of the two absent
parties would even be affected.
5. Quieting Title.
Since person seeking title to land through doctrine of adverse possession did not meet certain
requirements set forth under statute providing for assertion of possession against all claimants known or
unknown, judgment could only be against known claimants. NRS 11.110-11.150, 40.090, 40.100.
In order to claim adverse possession under statute providing for adverse possession against a known
claimant, the claimed property must be occupied and claimed for five years, continuously, and the claimant
must pay all taxes assessed against the property for the same time period. NRS 11.150.
Fact that adverse possession claimant's statement of taxable property referred to a residence which
extended slightly over record parcel boundary line and a garage which was entirely within another lot did
not warrant inference that taxes were assessed for the entire property, for purposes of adverse possession
claim. NRS 11.150.
Payment of taxes is an absolute requirement for claiming land through adverse possession. NRS
11.150.
Landowner who paid taxes only on record parcel of 8,061 square feet was not in adverse possession of
33,930 square-foot parcel he had claimed possession to for almost 30 years. NRS 11.150.
Award of damages to purchaser of land against vendor for breach of implied covenant of marketability
due to fact that another landowner claimed title by adverse possession to part of the property conveyed
would be reversed, in view of Supreme Court's holding that such landowner was not in adverse possession
of the land in question. NRS 11.150.
OPINION
Per Curiam:
In 1955 respondent Victor Smith purchased by quitclaim deed a parcel of property in the
Crescent Lode Mining Claim (Crescent Lode) in Tonopah, Nevada. The description in the
deed describes a quadrangular parcel containing S,061 square feet of land.
describes a quadrangular parcel containing 8,061 square feet of land.
In 1979 appellant Donald Potts purchased the Stone Cabin Lode Mining Claim (Stone
Cabin) for the purpose of subdividing the area and selling the individual parcels. Stone Cabin
is directly south of Crescent Lode and adjacent to Smith's record parcel. Two of the parcels of
the Stone Cabin subdivision, lots 5 and 6, are at issue in this action. Lot 5 is still owned by
appellant Potts, while lot 6 is owned by respondent Vokits. Vokits purchased lot 6 by
quitclaim deed from Potts in 1980.
1

Potts had the land surveyed for subdivision purposes. At that time it became apparent that
Smith's residence was not within his record title parcel of land. In fact, Smith's garage is
entirely within the boundaries of lot 5. Smith, however, claims that he owns a much greater
parcel of land than that reflected in his deed. His claimed parcel of land contains
approximately 33,930 square feet and includes lots 5 and 6 in the Stone Cabin subdivision, as
well as other property in the Crescent Lode Claim.
The district court found that Smith acquired the entire 33,930 square feet through adverse
possession and granted judgment in favor of Smith. The court also granted damages against
Potts and in favor of Vokits for breach of warranty of marketability in the conveyance of lot
6. We reverse.
Jurisdiction
[Headnotes 1-3]
Potts initially argues that the district court lacked jurisdiction because of the absence of
two indispensable parties. An indispensable party is a party who is necessary to an action
but who, for some reason, cannot be made a party to that action. If a necessary party is found
to be unavailable, the court must decide whether in equity and good conscience the action
should proceed. If in equity and good conscience the action cannot proceed without the
necessary party, that party is indispensable and the case must be dismissed. NRCP 19(b).
[Headnote 4]
We hold these two parties are not indispensable. There is no reason to believe their
absence will result in complete relief not being accorded the present parties and there is no
evidence that any interest of these two absent parties will even be affected. Therefore, the
absence of these parties did not deprive the district court of jurisdiction.
____________________

1
Vokits leveled part of lot 6 and brought a mobile home onto the property. Several other improvements,
including a driveway and landscaping, were added to the parcel.
Adverse Possession
[Headnote 5]
The district court found Smith had acquired the adjacent property through adverse
possession. Adverse possession can be claimed under two separate sections of the Nevada
Revised Statutes. NRS 11.110 through NRS 11.150 allow a party to assert his possession
against a known claimant, while NRS 40.090 allows a party to assert his possession against
all claimants known or unknown. In order to bind all claimants pursuant to NRS 40.090, there
are certain requirements set forth in NRS 40.100 which must be met. Since there is no
indication of compliance with NRS 40.100, the judgment can only be against known
claimants pursuant to NRS 11.110 through NRS 11.150.
[Headnotes 6, 7]
In order to claim adverse possession under NRS 11.150, the claimed property must be
occupied and claimed for five years, continuously, and the claimant must pay all taxes
assessed against the property for the same time period. In this case, Smith paid all taxes
assessed against him by the Nye County Assessor but was under the belief that he was paying
taxes on the entire claimed parcel of 33,930 square feet. The record indicates that taxes were
only assessed for the record parcel of 8,061 square feet.
2

[Headnote 8, 9]
The issue, then, is whether the payment of taxes is an absolute requirement for claiming
land through adverse possession. This court has never held otherwise. See Crumbaker v.
Kelly, 95 Nev. 743, 601 P.2d 1199 (1979); Reno Brewing Company v. Packard, 31 Nev. 433,
103 P. 415 (1909). Taxes were paid only on the 8,061 square feet of land. We hold therefore
that Smith was not in adverse possession of the entire 33,930 square foot parcel, and the
judgment is reversed.
3

Warranty of Marketability
The district court found that respondent Vokits' property was subject to the same
disabilities as Potts' and thus granted title to the property, by adverse possession, to Smith.
The court also granted damages in favor of Vokits and against Potts for breach of implied
covenant of marketability.
____________________

2
The statement of Taxable Property described, by metes and bounds, the 8,061 square feet record parcel. The
statement, however, also makes reference to a residence and garage. The residence extends slightly over the
record parcel boundary line onto lots 5 and 6, and the garage is entirely within the boundary of lot 5. Smith
argues this court should infer from this that taxes were assessed for the entire property. We decline to do so.

3
The parties indicated at oral argument that a settlement would be reached regarding the residence which
encroaches on lot 5 and the garage which is entirely on lot 5.
granted damages in favor of Vokits and against Potts for breach of implied covenant of
marketability. Potts argues that the land was conveyed to Vokits by quitclaim deed and thus
no covenants or warranties are conveyed with the title.
[Headnote 10]
Because we hold Smith was not in adverse possession of the land in question, the award of
damages to Vokits must also be reversed. Accordingly, judgment in favor of Smith and
Vokits is reversed.
____________
101 Nev. 94, 94 (1985) Johnston v. State
MILTON REAY JOHNSTON, Appellant, v. THE
No 14950
January 10, 1985 692 P.2d 1307
Appeal from judgment of conviction of second degree murder with use of a deadly
weapon; Eighth Judicial District court, Clark County, Miriam Shearing, Judge.
Defendant was convicted in the district court of second degree murder with use of a deadly
weapon, and he appealed. The Supreme Court held that it was improper to charge defendant
with second degree murder for death resulting from drunk driving.
Reversed.
Morgan D. Harris, Public Defender, Craig D. Creel, Deputy Public Defender, Clark
County, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
Automobiles.
It was improper to charge defendant with second degree murder for death resulting from drunk driving.
NRS 200.010, 200.030, 484.3795.
OPINION
Per Curiam:
On the morning of September 28, 1981, defendant Milton Johnston was driving a vehicle
under the influence of alcohol.
1
Johnston was driving erratically in an alley when his car hit
a wooden electrical pole.
____________________

1
A blood test showed Johnston's blood-alcohol rate to be .20 percent. Under NRS 484.381(2)(c), a person
with a blood-alcohol rate of .10 percent or more is presumed to be under the influence of intoxicating liquor.
wooden electrical pole. The pole fell almost immediately, striking and killing a deliveryman
in the alley.
Johnston was charged by information with driving under the influence of alcohol, pursuant
to NRS 484.3795 and murder with use of a deadly weapon pursuant to NRS 200.010, NRS
200.030, and NRS 193.165. The jury found Johnston guilty of second degree murder with use
of a deadly weapon. In accordance with the pre-sentence report and recommendation,
Johnston was sentenced to 21 years for the offense of second degree murder and 21 years for
the use of a deadly weapon in the commission of a crime, to be served consecutively.
Johnston appeals from that conviction.
No objection was made to the information which charged Johnston with murder and use of
a deadly weapon in commission of a crime. We hold, however, that the charge and the
subsequent conviction constitute plain error in light of this court's decision in Sheriff v.
LaMotte, 100 Nev. 270, 680 P.2d 333 (1984).
In LaMotte, above, the defendant was charged with felony DUI and second degree murder.
The sheriff argued that liability for second degree murder should extend to all deaths resulting
from drunk driving. The sheriff urged this court to find that drunk driving per se is inherently
dangerous and naturally tends to destroy human life.
This court, however, left such a determination to the legislature. In addressing the statutory
liability for drunk driving, this court reasoned:
Since its addition to the Nevada Revised Statutes in 1973, the Nevada Legislature has
made various amendments to NRS 484.3795. . . . Definition of criminal conduct and
setting punishments therefor is traditionally a legislative function. . . . Here, the Nevada
Legislature has set the punishment for killing or seriously injuring another while
driving a vehicle under the influence of intoxicants at imprisonment for not less than
one year nor more than six years and imposition of a fine of not less than $2,000 nor
more than $5,000. NRS 484.3795 (1982). Expansion of the range of punishments for
those drunk drivers who kill fellow motorists or bystanders would constitute an
impermissible judicial excursion into the Legislature's domain.
LaMotte, 100 Nev. at 272-73, 680 P.2d at 334. (Emphasis added). Accordingly, this court
held that it is improper to charge second degree murder for a death resulting from drunk
driving. In light of this opinion, Johnston was improperly charged with murder in the instant
case.
2
Accordingly, the judgement of conviction is reversed and the case remanded to the
district court for a new trial.
____________________

2
This of course is not to say that alcohol is a complete defense to murder. If there had been substantial
evidence that Johnston had the intent to kill the
Accordingly, the judgement of conviction is reversed and the case remanded to the district
court for a new trial.
Springer, A. C. J., and Mowbray, Steffen and Gunderson, JJ., and Foley, D. J.,
3
concur.
____________________
victim, a charge of murder would have been proper. Absent such a showing of intent to kill, NRS 484.3795
provides the exclusive punishment for the homicide which occurred.

3
The Honorable Richard Bryan, Governor, designated the Honorable Thomas A. Foley, District Judge of the
Eighth Judicial District, to sit in this case in the place of The Honorable Noel E. Manoukian, Chief Justice, who
voluntarily disqualified himself. Nev. Const., Art. 6 4.
____________
101 Nev. 96, 96 (1985) Trustees, Hotel Employers v. Royco, Inc.
THE TRUSTEES OF HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS
INTERNATIONAL (REPRESENTING HEALTH AND WELFARE TRUST FUND);
AND THE TRUSTEES OF SOUTHERN NEVADA CULINARY AND BARTENDERS
PENSION TRUST (REPRESENTING PENSION TRUST FUND), Appellants, v.
ROYCO, INC., dba LAKE MEAD TAVERN, Respondent.
No. 15387
January 10, 1985 692 P.2d 1308
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Robert G.
Legakes, Judge.
Trustees of health and welfare fund brought action to recover money from employers
under collective bargaining agreement. The district court dismissed the action, and trustees
appealed. The Supreme Court held that amended order dismissing first suit brought by
trustees even if void because entered ex parte, without notice, and prior motion, did not bar,
under res judicata, second suit where original order dismissing the complaint was not final
adjudication on the merits because it stated that the action was being dismissed solely because
parties had represented to the court that they had reached settlement.
Reversed.
Thomas L. Pursel, Ltd., Las Vegas, for Appellants.
Peter L. Flangas, Las Vegas, for Respondent.
1. Judgment.
First suit brought by trustees of health and welfare fund to recover money owed by employers under
collective bargaining agreement did not bar, under res judicata, second suit where final judgment on the
merits was never entered in the first suit because it was dismissed without prejudice.
2. Judgment.
Dismissal without prejudice is not final adjudication on the merits for purposes of doctrine of res
judicata.
3. Judgment.
Amended order dismissing first suit brought by trustees of health and welfare fund to recover money
owed by employers under collective bargaining agreement even if void because entered ex parte, without
notice, and prior motion, did not bar, under res judicata, second suit where original order dismissing the
complaint was not final adjudication on the merits because it stated that the action was being dismissed
solely because parties had represented to the court that they had reached settlement.
OPINION
Per Curiam:
In December of 1980, appellants filed a complaint in district court against respondent. The
complaint sought recovery for certain sums of money allegedly owed by respondent under the
terms of a collective bargaining agreement. The parties subsequently undertook settlement
negotiations. Consequently, on March 11, 1983, the district court dismissed the complaint.
The district court's order of dismissal states:
This matter having come on for trial January 29, 1982, and counsel for both the
plaintiff and the defendant having represented to the Court that they had reached a
settlement and would submit a judgment, and good cause appearing therefor, it is
hereby
ORDERED that this matter is hereby dismissed, and the note for trial docket filed
February 7, 1983, be, and the same is hereby stricken.
Four days later, on March 15, 1983, the district court, without notice or a prior hearing,
entered an amended order of dismissal which indicated that the action was dismissed without
prejudice.
The next day, on March 16, 1983, appellants refiled their complaint. The complaint again
sought recovery for sums of money allegedly owed by respondent under the parties' collective
bargaining agreement. Respondent subsequently answered the complaint and moved for
summary judgment, contending that the district court's first order of dismissal was res
judicata and precluded appellants from relitigating their cause of action. The district court
agreed and entered summary judgment in respondent's favor.
district court agreed and entered summary judgment in respondent's favor. This appeal
followed. We reverse.
[Headnotes 1, 2]
Appellants contend, and we agree, that the doctrine of res judicata does not preclude their
present action because a final judgment on the merits was never entered in the former action.
See Horvath v. Gladstone, 97 Nev. 594, 637 P.2d 531 (1981). The district court's amended
order of dismissal expressly states that the action was dismissed without prejudice. A
dismissal without prejudice is not a final adjudication on the merits. See, e.g., Lighthouse v.
Great W. Land & Cattle, 88 Nev. 55, 493 P.2d 296 (1972).
[Headnote 3]
Respondent counters that the March 15, 1983, amended order of dismissal is void because
it was entered ex parte, without notice and a prior motion. Therefore, according to
respondent, the doctrine of res judicata is applicable, and appellants' second action is barred
by the lower court's original order of dismissal. We need not reach this contention, however.
Even if the district court's amended order of dismissal was void because entered ex parte and
without notice to respondent, appellants' present action would still not be barred by the
doctrine of res judicata. The district court's original order of March 11, 1983, dismissing
appellants' complaint, was clearly not a final adjudication of the merits of the action. The
order specifically states that the action was dismissed solely because the parties had
represented to the court that they had reached a settlement. Moreover, the order indicates that
a final judgment was to be submitted by the parties and entered sometime thereafter.
1
Accordingly, we reserve the summary judgment and remand for further proceedings.
____________________

1
In support of its motion for a summary judgment, respondent argued below that a trial was held on the
merits, and that the district judge had entered a ruling in respondent's favor. This contention was supported by
the affidavit of counsel which stated only that a trial was had on the merits, and by a copy of the lower court's
minutes. The clerk's minutes merely indicate that a recess was called, after which the parties informed the court
of a settlement, and that the parties would figure it out and submit a judgment. These minutes do not indicate a
ruling on the part of the district court judge in favor of either party. In contrast, in opposition to the summary
judgment motion, appellants' counsel averred that a trial had not concluded below on the merits; that appellants
had four witnesses ready to testify; that the court took a recess and suggested to the attorneys that a settlement
should be worked out; and that after settlement negotiations failed with no offer having been submitted to the
court, the district court dismissed the action. In light of these allegations, which we must view in a light most
favorable to appellants, and in light of the clear language contained in the district court's order, we conclude that
the dismissal of appellants' complaint did not constitute a final judgment on the merits. See Mullis v. Nevada
National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982).
Accordingly, we reserve the summary judgment and remand for further proceedings.
Springer, Steffen and Gunderson, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Honorable David Zenoff, Senior Justice, was designated by the Governor to sit in place of The
Honorable Chief Justice Noel E. Manoukian who voluntarily disqualified himself from consideration of this
case. Nev. Const., art. 6, 4.
The Honorable Justice John C. Mowbray also voluntarily disqualified himself from consideration of this
case.
____________
101 Nev. 99, 99 (1985) S. Nev. Homebuilders v. L.V. Valley Water
SOUTHERN NEVADA HOMEBUILDERS ASSOCIATION, INC.; Barry W. Becker
Homes, Inc.; Betty W. Becker Investment Co.; Ernest Becker Homes, Inc.; Parade of Homes,
Inc.; All Nevada Corporations and Doing Business as Becker & Sons, a Nevada Partnership;
Charleston Heights Bowl, Inc., Marford Inc., a California Corporation; Becker & Sons, a
Nevada Partnership and Becker Hospitals of Texas, Inc., a Corporation Authorized to Do
Business in Nevada; All Doing Business as Marbeck, a Nevada Corporation; Western Supply
Corporation; and Kimmel Enterprises, Inc., Doing Business as Lewis Homes of Nevada, a
Nevada Partnership; and Nevada Young American Homes, Inc., Appellants, v. LAS VEGAS
VALLEY WATER DISTRICT, a Public Quasi Municipal Corporation, Respondent.
No. 15343
January 15, 1985 693 P.2d 1255
Appeal from judgment after bench trial denying appellants' request for declaratory,
injunctive and other relief. Eighth Judicial District Court, Clark County, Llewellyn A. Young,
Judge.
Property developers appealed from an order of the district court holding that water
district's rules imposing a feeder main connection charge on all new applicants to the system
was legal. The Supreme Court held that imposition by the board of directors of the water
district of a feeder main connection charge upon all new applicants to the system to aid in
funding the major construction projects of the water district did not represent an equitable
allocation and recovery of costs of providing facilities and delivery of water service and was
outside the power granted to the board by the legislature; the board is limited to imposing
such a feeder main connection charge only if it is used to recover costs identifiable with
the properties charged.
board by the legislature; the board is limited to imposing such a feeder main connection
charge only if it is used to recover costs identifiable with the properties charged.
Jones, Jones, Close & Brown, and Gary R. Goodheart, Las Vegas; Kenneth C. Hamister,
Elyria, Ohio, for Appellants.
Robert Miller, District Attorney, Bryon Toma, Deputy District Attorney, Las Vegas;
Urban J. Schriener and Bruce D. Snyder, Los Angeles, California, Attorneys for Respondent.
Roy A. Woofter, North Las Vegas City Attorney, Amicus Curiae.
Shauna M. Hughes, City Attorney for Henderson, Amicus Curiae.
Robert L. Van Wagoner, City Attorney for Reno, Amicus Curiae.
Waters and Water Courses.
Imposition by the board of directors of the water district of a feeder main connection charge upon new
applicants to the system, namely property developers, to aid in funding the major construction projects of
the water district did not represent an equitable allocation and recovery of costs of providing facilities and
delivery of water service and was outside the power granted to the board by the legislature; board is
limited to imposing such a feeder main connection charge only if it is used to recover costs identifiable
with the properties charged such as the costs of building a feeder main or the initial costs of oversizing the
lines to prepare for anticipated growth. 1947 Nev. Stat. ch. 167, 16d, as amended.
OPINION
Per Curiam:
This is an appeal from a judgment entered for respondent, the Las Vegas Valley Water
District, denying appellants' request for declaratory, injunctive, and other relief. The
appellants, principally the Southern Nevada Homebuilders Association, Inc., a trade
organization, challenged the ruling of the district court that certain sections of the Water
District's 1975 service rules imposing connection fees as a pre-condition of obtaining new or
expanded water service are legal. Because we agree with the Association's contention that the
Water District exceeded its statutory authority by imposing a fee on new customers in order
to pay for expansion within the existing system, we reverse the decision of the district
court.
to pay for expansion within the existing system, we reverse the decision of the district court.
THE FACTS
The Water District is formed under the provisions of Chapter 167 of the 1947 Statutes of
Nevada, commonly known as the Las Vegas Valley Water District Act. Pursuant to authority
granted in this Act, the Board of Directors of the Water District establishes and promulgates
written rules and regulations for the distribution and use of water within the Water District's
boundaries;
1
and the Water District establishes rates and charges for water.
Through the rules and regulations, the Board governs the Water District. Two groups are
affected by the Water District's policies on rates and charges: the customers, or water users,
and the applicants, a group consisting mainly of property developers. Various mixes of rates
and charges have been used by the Water District in an attempt to balance the burden
imposed by each group. In general, the customers are charged a flat rate plus an amount based
on the water used. The Water District's water sales revenues have historically produced an
annual net profit after deducting all expenses, including depreciation and interest. These
surplus revenues are used to repay the bond indebtedness, to replace worn or obsolete
equipment, and to expand the Water District's facilities. The Water District has obtained
funds for the acquisition and expansion of its major facilities through long-term borrowing
under its general obligation bond authority contained in 16d of the Act.
The group referred to as the applicants has been required to contribute to the costs of
providing new services. Since 1955 the developers have been required to build off-site main
extensions from the development to the existing system (defined in the Water District rules as
a feeder main). When the developer has been required to install an oversized main, if
requested to do so by the Water District, the developer pays only for that cost of the main
capacity necessary to serve his development. Since 1960, the Water District has collected a
connection fee from those tying into a Water District-constructed main. Subsequent
developers have been charged a fee for connecting to a main constructed by others. The
developers are required to build at their own expense whatever water mains are necessary
within their development's boundaries.
Because of the rapidly increasing population in the area served by the Water District, the
Act has been amended numerous times, which has been followed by corresponding changes
within the rules and regulations.
____________________

1
The Water District serves the Las Vegas Valley area of Clark County except the cities of North Las Vegas
and Henderson.
rules and regulations. In 1975, the legislature amended 16d to provide specifically that the
Water District be authorized to charge a connection fee. After this enactment, the Water
District implemented its new service rules imposing a feeder main connection charge on all
new applicants to the system. The new rules attempted to equalize the burden on developers
by providing that the initial developer installing the feeder main from the development to the
existing system receive a credit for the amount paid for the main against the feeder main
connection charge imposed on the development. The developer then pays the difference, if
the connection charge is greater. If the cost of the main exceeds the connection charge, the
developer is entitled to reimbursement from subsequent applicants connecting to that main.
The feeder main connection charge is imposed on all new applicants regardless of whether
the development connects directly to the existing system or utilizes a newly installed feeder
main.
The money collected from this charge is not segregated but it is placed within the general
fund. The money has been used, in part, to reimburse developers for their costs of installing
the feeder mains. In addition the money has been spent on oversizing mains being built by
developers so that anticipated growth in an area could be accommodated by the system
quickly. The money has also been utilized, however, for bolstering or reinforcing water mains
within the existing system in order to provide for increased demand and capacity for the new
growth.
THE FEEDER MAIN CHARGE
The Association suggests that the feeder main connection charge is illegal for various
reasons. Because we find it exceeds the authority granted to the Board by the legislature, only
this issue need be discussed.
The district court found that the Board had the authority under either 16d or 19.1 of the
Act to impose the feeder main connection charge. Section 16d, as amended, provides in part:
It is the intent of this act that, so far as possible, the principal of and interest on any
bonds issued by the district shall be paid from revenues from the works and properties
of the district. The board shall from time to time establish reasonable rates and charges
for the products and services furnished by such works and properties, and no board or
commission other than the governing body of the district shall have authority to fix or
supervise the making of such rates and charges. Such rates and charges may be in such
forms as, but not exclusively limited to, service charges, monthly commodity charges,
late charges, delinquent processing charges, lump-sum installment charges, or
connection charges if such rates and charges represent an equitable allocation and
recovery of costs of providing facilities and delivery of water service. . . .
lump-sum installment charges, or connection charges if such rates and charges
represent an equitable allocation and recovery of costs of providing facilities and
delivery of water service. . . . Subject to the limitation that the rates and charges be
reasonable, the board shall fix rates and charges which will produce sufficient revenues
to pay the operating and maintenance expenses of such works and properties, the
general expenses of the district, and the principal of and interest on all outstanding
bonds of the district as the same fall due and any payments required to be made into any
sinking fund for said bonds. . . . (Emphasis added.)
The Board is given extensive authority by this section to impose rates and charges. This
authority, however, is limited by the requirement that such rates and charges be an equitable
allocation and recovery of costs of providing facilities and delivery of water service.
We do not believe that imposing a feeder main connection charge to aid in funding the
major construction projects of the Water District is such an equitable allocation. Instead, we
conclude that the Board is limited to charging a connection fee only if it is used to recover
costs identifiable with the properties charged. Thus the costs of building a feeder main
would be proper, as would the initial costs of oversizing the lines to prepare for anticipated
growth. Financing the bolstering or enlarging of lines already part of the existing system,
however, is outside the scope of power given in 16d.
2

We believe that to conclude otherwise allows the Water District to recover the costs of the
same facilities twice. The Water District is empowered by 16d to charge water rates to
recover the costs of delivery of service and to issue bonds to provide for the major
construction projects, with the interest and principal being paid from the revenues of the
Water District. The evidence produced at trial showed that the water rates collected were
ample to pay for the costs of system expansion and replacement of obsolete or worn parts in
the system. To allow the Water District to charge water rates to its customers, issue bonds,
and then also to charge a connection fee to pay for some of the major construction projects,
permits the Water District to expand its surplus revenue after the costs of providing the
service have already been recovered. Such is not the intent of the legislature.
Finally, it is not equitable that the new applicants for service be forced to pay a connection
fee which is spent on a facility which may not benefit them or which benefits all members of
the system.
____________________

2
Our decision is limited to those mains discussed above. We thus reject the District's attempt to label any
and all mains as feeder mains for the purpose of coming within the statute.
system. Although it may be necessary for some purposes for the Water District to divide the
people affected by its rules into two groupsthe customers and the applicantsit is not
equitable to impose a charge on only one of the groups when the funds produced are used to
pay for facilities benefiting both groups. The Water District can impose its water rates and
issue bonds to recover the costs of providing facilities and delivery of service benefiting both
groups; it can only impose a separate fee on the new applicants fairly if it recovers the costs
directly identifiable with the applicants' properties.
The district court also found that the charge was authorized under 19.1 of the Act.
3
Although this section grants the Water District authority to act under the provisions of other
Nevada Revised Statutes which apply to public districts of the state, this authority is qualified
to the extent that such provisions are not in conflict with this act. None of the statutes
discussed by the district court contains the limitation which we find controlling as to the
legislature's intent in 16d. To the extent that the statutes permit a connection charge
unrelated to costs of providing service to the charged property they are inconsistent with
16d and thus cannot be used as authority to permit the Water District's charge.
In summary, we conclude that the Board is limited to imposing a feeder main connection
charge only if it is used to recover costs identifiable with the properties charged. Any other
charge does not represent an equitable allocation and recovery of costs of providing facilities
and delivery of water service as required by 16d of the Act and is outside the power
granted to the Board by the legislature.
We therefore order this judgment reversed and the case remanded for further proceedings
consistent with this opinion.
Springer, Mowbray and Gunderson, JJ., and Foley, D. J.
4
and McGroarty, D. J.,
5
concur.
____________________

3
Section 19.1 of the Act states:
Any powers expressly granted by this act are in addition to other powers available to the district under the
general laws of this state. All provisions of Nevada Revised Statutes which apply to public districts of the
state and which are not in conflict with this act may be utilized by the district in order that such district
may carry out its corporate purposes in the most efficient manner.

4
The Governor designated The Honorable Thomas Foley, Judge of the Eighth Judicial District Court, to sit
in the place and stead of The Honorable Noel Manoukian, Chief Justice, who voluntarily recused himself. Nev.
Const., art. 6, 4.

5
The Governor designated The Honorable John S. McGroarty, Judge of the Eighth Judicial District Court, to
sit in the place and stead of The Honorable Thomas L. Steffen, Justice, who voluntarily recused himself. Nev.
Const., art. 6, 4.
____________
101 Nev. 105, 105 (1985) Obstetrics and Gynecologists v. Pepper
OBSTETRICS AND GYNECOLOGISTS WILLIAM G. WIXTED, M.D., PATRICK M.
FLANAGAN, M.D., WILLIAM F. ROBINSON, M.D. LTD., a Professional Corporation,
Appellants, v. RHONDA PEPPER and ROGER PEPPER, Respondents.
No. 14726
January 21, 1985 693 P.2d 1259
Appeal from order denying motions to compel arbitration and to stay lawsuit pending
arbitration; Eighth Judicial District Court, Clark County; Robert G. Legakes, Judge.
Patient at medical clinic brought negligence action. Medical clinic filed motion to stay the
action for negligence pending arbitration. The district court denied motions, and appeal was
taken. The Supreme Court held that agreement medical clinic required patient to sign before
receiving treatment stating that all disputes between the parties would be submitted to
arbitration and that parties expressly waived the right to trial was unenforceable.
Affirmed.
Keefer, O'Reilly & Haight, and Robert E. Gaston, Las Vegas, for Appellants.
Cromer, Barker, Michaelson, Gillock & Rawlings, Las Vegas; Pomeranz, Crockett &
Myers, Las Vegas, for Respondents.
Allan Earl, Las Vegas, for Nevada Trial Lawyers Association, Amicus Curiae.
1. Arbitration.
Since medical clinic set up existence of an agreement it required patients to sign before receiving
treatment stating that all disputes between parties would be submitted to binding arbitration, it had burden
of showing in negligence action that binding agreement existed. NRS 38.045.
2. Contracts.
Distinctive feature of adhesion contract is that weaker party has no choice as to its terms.
3. Contracts.
An adhesion contract need not be unenforceable if it falls within reasonable expectations of weaker or
adhering party and is not unduly oppressive.
4. Contracts.
Courts will not enforce against adhering party a provision limiting duties or liabilities of stronger party to
adhesion contract absent plain and clear notification of terms and an understanding consent.
5. Arbitration.
Agreement medical clinic required patients to sign before receiving treatment stating that all
disputes between parties would be submitted to arbitration and that parties
expressly waived the right to trial was unenforceable since agreement was never
explained to patient who subsequently decided to bring negligence action.
treatment stating that all disputes between parties would be submitted to arbitration and that parties
expressly waived the right to trial was unenforceable since agreement was never explained to patient who
subsequently decided to bring negligence action.
OPINION
Per Curiam:
This appeal concerns the enforceability of an arbitration agreement between appellant
medical clinic and respondent patient. Following a hearing, the district court denied
appellant's motions to stay respondent's action for negligence pending arbitration and to direct
arbitration to proceed. On the record before us, we are not persuaded that the district court
erred.
Appellant clinic requires its patients to sign the arbitration agreement at issue before
receiving treatment. The agreement provides that all disputes between the parties shall be
submitted to binding arbitration. The parties expressly waive their right to a trial. According
to the standard procedure of the clinic, the receptionist hands the patient the arbitration
agreement along with two information sheets, and informs him or her that any questions he or
she may have regarding the agreement will be answered. The patient must sign the agreement
before receiving treatment; the physician signs later. If the patient refuses to sign the
arbitration agreement, the clinic refuses treatment. Ostensibly, even in the absence of an
arbitration agreement, the clinic will consent to provide treatment in some emergency
situations, but the record does not reflect that this has ever in fact occurred. The agreement
does not give the patient any option to revoke within a specified period of time; once the
patient signs the agreement he or she cannot regain the right to a trial.
On November 28, 1979, respondent Rhonda Pepper entered appellant medical clinic to
obtain a prescription for an oral contraceptive. Respondent's signature appears on the
agreement; however, respondent stated in an affidavit that she has no recollection of either
signing the agreement or of its being explained to her. On July 20, 1980, respondent suffered
a cerebral incident which left her partially paralyzed. Subsequently respondent filed suit
against appellant medical clinic, alleging that the cerebral incident had been caused by the
clinic's negligence in prescribing the contraceptive, which was contraindicated by her medical
history. Appellant moved to stay the lawsuit pending arbitration and to order arbitration to
proceed. Each party submitted an affidavit, and a hearing was held. The district court denied
both motions, and ordered respondent's counsel to prepare findings of fact and conclusions
of law, to be filed after approval by appellant's counsel.
fact and conclusions of law, to be filed after approval by appellant's counsel. Counsel being
unable to reach agreement, no findings of fact and conclusions of law were ever filed.
[Headnote 1]
NRS 38.045 provides that if a party requests a court to compel arbitration pursuant to a
written agreement to arbitrate, and the opposing party denies the existence of such an
agreement, the court shall summarily determine the issue. See Exber, Inc. v. Sletten Constr.
Co., 92 Nev. 721, 729, 558 P.2d 517, 521-522 (1976). Since appellant set up the existence of
the agreement to preclude the lawsuit from proceeding, it had the burden of showing that a
binding agreement existed. After reviewing the facts, we cannot say that the district court
erred in finding that appellant did not sustain that burden.
Initially, we note that the district court did not enter any findings of fact and conclusions of
law. The absence of express findings renders it impossible for us to know on what grounds
the district court refused to enforce the arbitration agreement. We have previously held,
however, that in the absence of express findings, this court will imply findings where the
evidence clearly supports the judgment. IAMA Corporation v. Wham, 99 Nev. 730, 734, 669
P.2d 1076, 1078 (1983); Cooper v. Pacific Auto Ins. Co., 95 Nev. 798, 801, 603 P.2d 281,
283 (1979); Gorden v. Gorden, 93 Nev. 494, 496, 569 P.2d 397, 398 (1977).
[Headnote 2]
The district court could certainly have found that the arbitration agreement was an
adhesion contract. An adhesion contract has been defined as a standardized contract form
offered to consumers of goods and services essentially on a take it or leave it basis, without
affording the consumer a realistic opportunity to bargain, and under such conditions that the
consumer cannot obtain the desired product or service except by acquiescing to the form of
the contract. Miner v. Walden, 422 N.Y.S.2d 335, 337 (N.Y.Sup.Ct. 1979). The distinctive
feature of an adhesion contract is that the weaker party has no choice as to its terms. Wheeler
v. St. Joseph Hospital, 133 Cal.Rptr. 775, 783 (Cal.Ct.App. 1976). The arbitration agreement
before us clearly falls into this category. It was prepared by appellant medical clinic and
presented to respondent as a condition of treatment. Respondent had no opportunity to modify
any of its terms; her choices were to sign the agreement as it stood or to forego treatment at
the clinic.
[Headnotes 3, 4]
An adhesion contract need not be unenforceable if it falls within the reasonable
expectations of the weaker or adhering party and is not unduly oppressive.
party and is not unduly oppressive. Graham v. Scissor-Tail, Inc., 623 P.2d 165, 172-173 (Cal.
1981). However, courts will not enforce against an adhering party a provision limiting the
duties or liabilities of the stronger party absent plain and clear notification of the terms and an
understanding consent. Wheeler v. St. Joseph Hospital, 133 Cal.Rptr. at 784.
[Headnote 5]
The district court held a hearing to determine whether an enforceable arbitration agreement
existed between the parties. The parties were entitled to present oral testimony at the hearing;
instead, they chose to rely on the affidavits they had submitted. Consequently, we must look
for facts supporting the decision of the district court in the affidavits of respondent and of
appellant's receptionist. The affidavits do not compel the conclusion that respondent
knowingly consented to the terms of the agreement. Respondent stated that she did not
remember receiving any information regarding the terms of the arbitration agreement.
Appellant's receptionist stated that the general policy of the clinic was to inform the patient
that any questions he or she might have would be answered. The contents of both affidavits
are perfectly consistent with the conclusion that the agreement was never explained to
respondent. On these facts the district court may well have found that respondent did not give
an informed consent to the agreement and that no meeting of the minds occurred.
Consequently, we conclude that appellant has failed to demonstrate that the district court
erred. As the moving party, appellant had the burden of persuading the district court that the
arbitration agreement which it wished to enforce was a valid contract. We cannot say as a
matter of law that appellant sustained that burden. Since appellant's counsel failed to pursue
the entry of findings of facts and conclusions of law, we are bound to presume that the district
court found that respondent did not give a knowing consent to the arbitration agreement
prepared by appellant clinic. See IAMA Corporation v. Wham, 99 Nev. at 734, 669 P.2d at
1078.
Accordingly, we affirm the judgment of the district court and remand for further
proceedings.
____________
101 Nev. 109, 109 (1985) Lubritz v. Circus Circus Hotels
JOEL and CAROL LUBRITZ, Appellants, v. CIRCUS
CIRCUS HOTELS, INC., Respondent.
No. 15388
January 22, 1985 693 P.2d 1261
Appeal from a judgment in favor of defendant in an action to accelerate payment of the
balance of a promissory note; Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
The district court refused to enforce terms of an automatic acceleration clause in a
promissory note. On appeal by the payees, the Supreme Court held that: (1) maker could not
unilaterally extend time for performance by withholding installment payments to all payees
merely because of difficulties with address of one payee; (2) where it was not shown that
representative of note payees actually knew that payment checks were going to be delayed
until addresses were verified, case of estoppel to accelerate payment was not established by
showing that maker called such representative and asked for verification of addresses; and (3)
where promissory note payees were entitle to bring action to accelerate balance remaining on
defaulted note, award of attorney's fees against payees was improper, the terms of the contract
authorizing the court only to award costs and attorney's fees to the payees.
Reversed and remanded with instructions.
John Peter Lee, Las Vegas, for Appellants.
Graves & Leavitt, Las Vegas, for Respondent.
1. Bills and Notes.
There are three types of acceleration clauses on bills or notes, i.e., automatic, optional, and particular,
which is combination of automatic and optional. U.C.C. 1-208 comment.
2. Bills and Notes.
There are instances in which equity may properly intervene to prevent automatic acceleration of maturity
date of note from going into effect, but maker could not unilaterally extend time for performance by
withholding installment payments to all payees merely because of difficulties with address of one payee.
3. Estoppel.
Where it was not shown that representative of promissory note payees actually knew that payment checks
were going to be delayed until addresses were verified, case of estoppel to accelerate payment was not
established by showing that maker called such representative and asked for verification of addresses.
4. Costs.
Absent rule, statute or contract authorizing award of attorney's fees, such fees may not be allowed.
5. Bills and Notes.
Where promissory note payees were entitled to bring action to accelerate balance remaining on defaulted
note, award of attorney's fees against payees was improper, the terms of the contract authorizing the court
only to award costs and attorney's fees to the payees.
OPINION
Per Curiam:
The present appeal concerns the failure of the district court to enforce the terms of an
automatic acceleration clause contained in a promissory note. On July 1, 1982, respondent
Circus Circus executed promissory notes to appellants, the Lubritzes and nine other parties
not involved in this litigation. The note contained an acceleration clause which provided as
follows: Failure of the maker to pay any installment on the due date shall constitute a default
under the terms hereof and the total amount in the sum of . . . $353,333.02 . . ., or the balance
remaining, shall then and there become immediately due and payable.
According to the terms of the note, the first installment was to be paid directly to the
Lubritzes' representative, David Goldwater, Esq., on the day the contract was signed.
1
The
rest of the installments were to be paid on the first day of each of the following months. The
first installment was timely. The second installment, however, was not paid when due on
August 1. On August 4, 1982, the Lubritzes declared a default in the contract and demanded
an acceleration of the total balance remaining as provided in the note. On August 5, 1982,
Circus Circus tendered a check for the August installment, but the Lubritzes rejected the
payment and filed suit to accelerate the balance of the note.
Acceleration Clause
[Headnote 1]
There are three types of acceleration clauses: automatic, optional, and particular (a
combination of automatic and optional). An optional acceleration clause is a clause which
seemingly grant[s] the power of an acceleration at the whim and caprice of one party. U.C.C.
1-208 official comment (1977). An automatic acceleration clause contains no optional
features, is absolute in its terms, and declares that the note becomes due upon default. 11
Am.Jur.2d Bills and Notes 294 (1963). The clause in Circus Circus' promissory note is
undoubtedly automatic and resulted in the note's becoming due by reason of the default.
____________________

1
Goldwater represented all ten of the payees of the promissory notes.
in Circus Circus' promissory note is undoubtedly automatic and resulted in the note's
becoming due by reason of the default.
Circus Circus admits that the August installment was not made on time but insisted that it
was justified in delaying payment because there was some confusion as to the arrangements
for mailing payments. The note, however, was unquestionably in default. Instead of awarding
judgment to the Lubritzes, together with attorney's fees as provided in the note, the district
court awarded judgment to Circus Circus and required the Lubritzes to pay attorney's fees to
Circus Circus. The court rationalized this action by applying equitable principles of hardship
and estoppel.
[Headnote 2]
Circus Circus cites numerous authorities for the application of equitable principles to
optional clauses but no authority for the application to automatic clauses. Although no cases
have been cited to support the proposition, we do recognize that there are instances in which
equity may properly intervene to prevent an automatic acceleration from going into effect. An
example of this would be a case in which the process of delivery of payment was interrupted
by forces beyond the obligor's control. Thus equity might intervene to prevent acceleration if
payment was prevented by the death of the messenger in the course of timely delivery of the
payment. Equity however may not properly intervene to prevent acceleration under the
circumstances of this case and the clear wording of the note must be given effect.
The circumstances of this case show that during the month of July, Circus Circus
somehow discovered that it may have had an incorrect address for one of the payees of the ten
promissory notes.
2
An officer of Circus Circus contacted Goldwater seeking corrections or
verifications of the addresses. The Lubritzes' address was listed correctly in the agreement.
There is evidence that the officer representing Circus Circus had actual knowledge that the
Lubritzes' address was correct. Under such circumstances, equitable relief is not available to
invalidate the clear meaning contained in the wording of the note. Circus Circus may not
unilaterally extend the time for performance by withholding installment payments to all
payees merely because they experienced difficulties with the address of one payee.
Estoppel
[Headnote 3]
Circus Circus also argues that the Lubritzes are estopped from declaring a default on the
note in light of the fact that Goldwater was informed by Circus Circus that there was some
difficulty with the addresses in the contract.
____________________

2
The addresses had been provided to Circus Circus and were listed in a separate agreement between the
parties.
declaring a default on the note in light of the fact that Goldwater was informed by Circus
Circus that there was some difficulty with the addresses in the contract. It was not
demonstrated, however, that Goldwater actually knew the checks were going to be delayed
until the addresses were verified. A case of estoppel is not established by showing that Circus
Circus called Goldwater and asked for a verification of addresses. To constitute estoppel, the
party relying on it must be influenced by the acts or silence of the other and it must appear
that the acts or conduct of the party estopped caused the party relying to act as he would not
have acted. . . . Zunino v. Paramore, 83 Nev. 506, 509, 435 P.2d 196 (1967). The Lubritzes
have done nothing which would estop them from enforcing the acceleration clause. The
remaining balance on the note is thus immediately due and payable.
Attorney's Fees
[Headnotes 4, 5]
The district court awarded costs and attorney's fees to Circus Circus. It is well settled in
Nevada that in absence of a rule, statute, or contract authorizing and award of attorney's fees,
such fees may not be allowed. Von Ehrensmann v. Lee, 98 Nev. 335, 647 P.2d 377 (1982);
Consumers League of Nevada v. Southwest Gas Corp., 94 Nev. 153, 576 P.2d 737 (1978).
The Lubritzes were entitled to bring the action to accelerate the balance remaining on the
defaulted note. An award of attorney's fees against the Lubritzes was improper. By the terms
of the contract, the court is authorized to award costs and attorney's fees to the Lubritzes.
The judgment of the trial court is reversed and remanded with instructions that the district
court enter judgment for the entire balance of the note, including interest, and award costs and
attorney's fees as provided in the note.
____________
101 Nev. 113, 113 (1985) First Interstate Bank v. Green
FIRST INTERSTATE BANK OF NEVADA, a National Banking Association, Appellant, v.
CHRISTOPHER E. GREEN, ROBERT C. HOLLAND and THOMAS A. MERCURIO,
Individually and Doing Business as CRT ASSOCIATES, Respondents.
No. 15171
January 22, 1985 694 P.2d 496
Appeal from summary judgment, Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Bank brought action against customer for its wrongful retention of $100,000 deposited in
customer's commercial checking account due to bank's clerical error. Subsequently, bank
offered to consent to a judgment in its favor for money due, along with interest and attorney
fees. Customer paid amount sued for, but contested any payment of interest or attorney fees.
The district court entered summary judgment for customer, and bank appealed. The Supreme
Court held that: (1) summary judgment was improper since parties still disputed date from
which prejudgment interest ran; (2) bank could recover 12 percent interest for period of
customer's wrongful detention of funds, since it was undisputed that customer deliberately
deprived bank of use of its funds and had the use and benefit of the money; and (3) where
party is entitled to repayment on a certain date, and payment is not made, interest is
recoverable from the date due.
Gregory D. Corn, Reno, for Appellant.
Mark H. Gunderson, Reno, for Respondents.
In reviewing order granting summary judgment, Supreme Court will consider all evidence in light most
favorable to party who lost on the motion. NRCP 56.
2. Judgment.
In bank's action to determine interest due from customer for customer's wrongful retention of $100,000
deposited in customer's account due to bank's clerical error, summary judgment was improper since the
parties still disputed date on which bank customer knowingly appropriated bank's money, necessary to
determine proper amount of prejudgment interest owed bank for the period of wrongful detention of such
funds. NRCP 56.
3. Interest.
Bank could recover 12 percent interest for period of wrongful detention of its funds by bank customer,
whose account had been credited with $100,000 of bank's money due to bank's clerical error, since it was
undisputed that customer deliberately deprived bank of use of its funds and customer had the use and
benefit of the money. NRS 99.040(3).
4. Interest.
Where party is entitled to repayment on a certain date, and payment is not made, interest is recoverable
from the date due. NRS 99.040(3).
5. Costs.
Attorney fees are not recoverable unless authorized by statute, rule, or agreement between the parties.
NRS 18.010, subd. 2(a).
6. Costs.
Total amount of judgment is to be considered in calculating statutory eligibility for attorney fees allowed
to plaintiffs as prevailing parties when they have not recovered more than $10,000; however, prejudgment
interest should not be included with the principal in calculating plaintiffs' eligibility. NRS 18.010, subd.
2(a).
7. Costs.
In bank's action to determine interest due from customer for customer's wrongful retention of $100,000
deposited in customer's account due to bank's clerical error, district court could award attorney fees to
bank, in light of the equities of the action and fact that bank would recover by judgment no more than
$10,000. NRS 18.010, subd. 2(a).
OPINION
Per Curiam:
First Interstate Bank (FIB) appeals a summary judgment granted against it and in favor of
respondent CRT Associates. Because we believe the undisputed facts favor FIB, we reverse
and remand to the district court to determine the remaining disputed fact.
In their briefs and at oral argument, both parties concede all but one fact. There is no
dispute that CRT maintained a commercial checking account at FIB, and due to the bank's
clerical error, CRT was the recipient of $100,000 of FIB's money. The error took place on
October 1, 1981, when CRT deposited a $100,000 draft, but was credited with $200,000. FIB
became aware of the error on December 18, 1981; CRT was advised on January 5, 1982.
Before advising CRT of the erroneous transfer, FIB froze CRT's bank account.
1
FIB filed
suit on January 29, 1982, after conversations with CRT executives on January 5 and 10. On
April 30, 1982, FIB offered to consent to a judgment in its favor for the money due, along
with interest from January 5, 1982, until paid, and attorney's fees of $1,250. CRT paid the
amount sued for on June 10, 1982, but contested any payment of interest or attorney's fees.
The only remaining factual dispute is the date CRT actually knew it had FIB's money, knew
the amount of the money due, and refused to return it.
[Headnotes 1, 2]
In reviewing an order granting summary judgment this court
____________________ will consider all evidence in a light most favorable to the party
who lost on the motion.

1
CRT had $16,417.48 in its account. Neither party explains the $10 discrepancy in their calculations:
$100,000 minus the frozen $16,417.48 is actually $83,582.52. FIB sued for and CRT paid $83,572.48.
will consider all evidence in a light most favorable to the party who lost on the motion.
Bowyer v. Davidson, 94 Nev. 718, 728, 584 P.2d 686, 687 (1978). Summary judgment under
NRCP 56 is proper only where the moving party is entitled to judgment as a matter of law,
where it is quite clear what the truth is, and where no genuine issue remains for trial. Short v.
Hotel Riviera, Inc., 79 Nev. 94, 103, 378 P.2d 979, 984 (1963). As the parties still dispute the
date on which CRT knowingly appropriated FIB's money, summary judgment was improper.
That date must be determined by the district court, and it appears that only through the
protections of cross-examination will the truth be revealed.
2

The only issues for this court to decide, then, are whether the district court properly
determined no interest was recoverable by FIB from the date of knowing appropriation by
CRT to the date of agreed payment, and whether the district court could award attorney's fees.
INTEREST
NRS 99.040(3) governs the award of interest in this case, and provides, in pertinent part:
[w]hen there is no express contract in writing fixing a different rate of interest, interest
must be allowed at the rate of 12 percent per annum upon all money from the time it
becomes due, in the following cases . . . [u]pon money received to the use and benefit
of another and detained without his consent. (Emphasis added.)
[Headnotes 3, 4]
As it is undisputed that CRT deliberately deprived FIB of the use of its funds for some yet
to be determined time, and as CRT had the use and benefit of the money, the statute allows
recovery of 12 percent interest
3
for the period of wrongful retention of the funds. Where a
party is entitled to repayment on a certain date, and payment is not made, interest is
recoverable from the date due. See Sierra Pacific Power Co. v. Nye, 80 Nev. 88, 389 P.2d 387
(1964); Carter v. Barbash, 82 Nev. 289, 417 P.2d 154 (1966).
____________________ Therefore, the district court erred in determining no interest is
recoverable.

2
At oral argument, counsel for both parties could not agree on the date from which interest should run. To
avoid the necessity of a trial to determine this single fact, we ordered the parties to try to settle this dispute, and
allowed 30 days to do so. Within 10 days of oral argument, we were advised the parties could not reach an
agreement. Thus, the parties have not yet resolved the single remaining disputed fact.

3
Although FIB originally sought 16 percent interest for the time the money was knowingly withheld, at oral
argument counsel conceded that the bank would accept 12 percent interest.
Therefore, the district court erred in determining no interest is recoverable.
ATTORNEY'S FEES
[Headnote 5]
Attorney's fees are not recoverable in Nevada unless authorized by statute, rule, or
agreement between the parties. Locken v. Locken, 98 Nev. 369, 650 P.2d 803 (1982). As no
agreement or rule is involved here, the lower court may award FIB attorney's fees as the
prevailing party only if the bank recovers no more than $10,000. NRS 18.010(2)(a).
4

[Headnotes 6, 7]
The total amount of the judgment is to be considered in calculating eligibility under NRS
18.010(2)(a). Peterson v. Freeman, 86 Nev. 850, 856, 477 P.2d 876, 880 (1970). As the
money due in this case has been paid, only the prejudgment interest will be awarded in the
lower court's judgment. Prejudgment interests, however, should not be included with the
principal in calculating the eligibility of a plaintiff as a prevailing party for an award of
attorney's fees within the statute. Mays v. Todaro, 97 Nev. 195, 198, 626 P.2d 260, 262
(1981). For purposes of determining eligibility of attorney's fees, then, FIB will recover by
judgment no more than $10,000, and NRS 18.010(2)(a) does not bar attorney's fees. Thus, the
district court, weighing the equities of the action, including the fact that FIB made the initial
error in the transfer of funds, may award attorney's fees.
The judgment is reversed. This matter is remanded to the district court for proceedings
____________________

4
NRS 18.010(2) states:
The court may make an allowance of attorney's fees to:
(a) The plaintiff as prevailing party when the plaintiff has not recovered more than $10,000.
____________
101 Nev. 117, 117 (1985) City of Boulder v. General Sales Drivers
CITY OF BOULDER CITY, NEVADA, Appellant, v. GENERAL SALES DRIVERS,
DELIVERY DRIVERS AND HELPERS, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
LOCAL UNION NO. 14; PHILLIP TAMOUSH; and LOCAL GOVERNMENT
EMPLOYEE-MANAGEMENT RELATIONS BOARD, Respondents.
No. 15414
January 22, 1985 694 P.2d 498
Appeal from an order denying petition for judicial review; Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
City petitioned for review of decision of arbitrator resolving labor dispute and predicated
its petition on the contention that arbitrator's decision was required to be reviewed according
to standards established in the Administrative Procedure Act, while union contended that
provisions of Uniform Arbitration Act applied to review. The district court denied petition,
and city appealed. The Supreme Court held that: (1) provisions of the Uniform Arbitration
Act applied for review of arbitrator's decision, and (2) record did not support vacating the
decision.
Affirmed.
Gardner and Stoebling, Las Vegas; Richards, Watson, Dreyfuss & Gershon, and Norman
Kirshman, Los Angeles, California, for Appellant.
Gang & Berkley, Las Vegas, for Respondent General Sales Drivers, Delivery Drivers and
Helpers, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 14.
Brian McKay, Attorney General, and Don Christensen, Deputy Attorney General, Carson
City, for Respondent Local Government Employee-Management Relations Board.
1. Statutes.
It is presumed that in enacting a statute legislature acts with full knowledge of existing statutes relating to
same subject.
2. Statutes.
Supreme Court will construe a statute so as to accomplish the legislature's purpose.
3. Labor Relations.
When legislature chose to require submission of disputes governed by the Local Government
Employee-Management Relations Act to an arbitrator and further determined that such arbitration awards
should be final and binding, it did so with the intention that the procedures set forth in
the Uniform Arbitration Act, including its limited standard of judicial review, should
apply, rather than those of the Administrative Procedure Act, in light of the usage of
the terms "arbitrator" and "final and binding" in the context of labor relations. NRS
3S.015 et seq., 233B.010 et seq.,
final and binding, it did so with the intention that the procedures set forth in the Uniform Arbitration Act,
including its limited standard of judicial review, should apply, rather than those of the Administrative
Procedure Act, in light of the usage of the terms arbitrator and final and binding in the context of labor
relations. NRS 38.015 et seq., 233B.010 et seq., 288.215.
4. Labor Relations.
Record did not support vacating award of arbitrator made pursuant to Local Government
Employee-Management Relations Act. NRS 38.145, 288.215.
OPINION
Per Curiam:
The City of Boulder City, Nevada (City), has appealed from an order of the district court
denying its petition for judicial review of the decision of an arbitrator resolving the impasse
in its negotiations with respondent General Sales Drivers and Helpers, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union
No. 14 (Union). The City has predicated its appeal upon the contention that the arbitrator's
decision must be reviewed according to the standards established for governmental agencies
in the Nevada Administrative Procedure Act, NRS Chapter 233B. The Union, on the other
hand, contends that the decision of an arbitrator is reviewable pursuant to the provisions of
NRS Chapter 38, the Uniform Arbitration Act. We are persuaded that it was the intent of the
legislature that the arbitration statute apply.
The arbitration award which is the subject of this appeal was issued pursuant to NRS
288.215, a special experimental provision of the Local Government Employee-Management
Relations Act. Enacted in 1977 for a temporary period, the statute applies only to firemen and
their local government employers.
1
It provides that as a final step in the bargaining process,
after the parties have participated in all other methods of dispute resolution provided for in
the Act, including advisory factfinding, They shall, within 10 days after the factfinder's
report is submitted, submit the issues remaining in dispute to an arbitrator. . . . NRS
288.215(3). After a hearing, and an option period of final negotiations, each party submits a
final written offer to the arbitrator for selection, on the basis of certain statutory criteria. NRS
288.215(7), (8), and (9); NRS 288.200. The statute specifically provides that [t]he decision
of the arbitrator is final and binding on the parties. NRS 288.215(9).
[Headnotes 1-3]
It is presumed that in enacting a statute the legislature acts with full knowledge of existing
statutes relating to the same subject.
____________________

1
Originally set to expire on July 1, 1981, the statute now will expire July 1, 1985. 1977 Nev. Stats. ch. 462
6 at 918; 1981 Nev. Stats. ch. 743, 10 at 1871.
full knowledge of existing statutes relating to the same subject. Ronnow v. City of Las Vegas,
57 Nev. 332, 366, 65 P.2d 133 (1937). We will construe a statute so as to accomplish the
legislature's purpose. NL Industries v. Eisenman Chemical Co., 98 Nev. 253, 645 P.2d 976
(1982). There is a well-known history of arbitration and a traditional use of the terms
arbitrator and final and binding in the context of labor relations. See United Steelworkers
of America v. American Manufacturing Co., 363 U.S. 564 (1960); United Steelworkers of
America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of
America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). In Enterprise Wheel and
Car, above, 363 U.S. at 596, the United States Supreme Court held that substantive review by
the courts of arbitration awards was inappropriate in light of the special qualifications of
arbitrators for resolving labor disputes by virtue of their knowledge of the customs and
practices of a particular factory or a particular industry. The court noted that plenary judicial
review would make meaningless the provisions that the arbitrator's decision is final, for in
reality it would almost never be final. Id. at 599. In light of this history and tradition we are
persuaded that when the legislature chose to require submission of these disputes to an
arbitrator, and further determined that such arbitration awards should be final and
binding, it did so with the intention that the procedures set forth in NRS Chapter 38,
including its limited standard of judicial review, should apply.
[Headnote 4]
The Uniform Arbitration Act provides that a court may vacate an arbitration award when
the moving party can show that the award was procured by corruption, fraud or other undue
means, NRS 38.145(1)(a); that there was evident partiality on the part of a neutral
arbitrator or other prejudicial misconduct, NRS 38.145(1)(b); or that the arbitrator exceeded
his powers or improperly conducted the hearing contrary to the statutory requirements found
in NRS 38.075. Appellant has presented no substantial basis for a finding that the award
should be vacated on any of these grounds.
Appellant's remaining contentions are either without merit or based upon its threshold
argument that the Administrative Procedure Act, rather than the Uniform Arbitration Act,
should be applicable. Accordingly, we affirm the order of the district court, denying
appellant's petition for judicial review.
Springer, A. C. J., and Mowbray, Steffen, and Gunderson, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Honorable David Zenoff, Senior Justice, was designated to sit in this case. Nev. Const., art. 6 19;
SCR 10.
____________
101 Nev. 120, 120 (1985) Southwest Gas v. Lear
SOUTHWEST GAS CORPORATION; STATE OF NEVADA, PUBLIC SERVICE
COMMISSION, Appellant, v. JOHN O. LEAR and MARILEE LEAR, Respondents.
No. 14956
January 23, 1985 693 P.2d 1264
Appeal from order granting a petition for writ of mandamus, Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
The district court granted writ of mandamus directing Public Service Commission to
decide case involving gas bill on evidence which existed in record prior to court's initial order
remanding case. On appeal, the Supreme Court held that while previous order of Public
Service Commission upholding validity of gas bill was a final order for purposes of
administrative code section authorizing Commission to reopen a proceeding to take
additional evidence only if it does so before issuance of a final order, trial court's action in
remanding case to the Commission put case in same position as if no final order had been
entered, and therefore Commission was entitled to reopen proceedings to consider additional
evidence.
Reversed.
William H. Kockenmeister, Carson City; William A. Claerhout, Las Vegas, for Appellants.
Colucci, Minagil & Aurbach, Las Vegas, for Respondents.
Gas.
While previous order of Public Service Commission upholding validity of gas bill was a final order for
purposes of administrative code section authorizing Commission to reopen a proceeding to take additional
evidence only if it does so before issuance of a final order, trial court's action in remanding case to the
Commission put case in same position as if no final order had been entered, and therefore Commission was
entitled to reopen proceedings to consider additional evidence.
OPINION
Per Curiam:
This appeal is taken from an order granting a writ of mandamus. In Public Serv. Comm'n
v. Lear, 98 Nev. 298, 646 P.2d 1213 (1982), this court affirmed a decision of the lower court
which found that an order of the Public Service Commission (hereafter Commission),
approving a gas bill submitted to the respondents, was not supported by substantial evidence.
The lower court accordingly remanded the case to the Commission in order for it to
consider "other evidence."
101 Nev. 120, 121 (1985) Southwest Gas v. Lear
lower court accordingly remanded the case to the Commission in order for it to consider
other evidence. In its order granting the writ, the court directed the Commission to decide
the case on the evidence which existed in the record prior to the court's initial order
remanding the case to the Commission. By this order, the lower court prevented the
Commission from reopening the proceedings before it to consider additional evidence as the
Commission had intended to do.
On appeal the Commission contends that it was authorized to reopen the proceedings to
consider additional evidence and did not abuse its discretion by doing so. The Commission
therefore contends the lower court erroneously granted the writ of mandamus.
Respondent argues only that because the order entered by the Commission in the prior
proceedings was a final order, the Commission had no authority to reopen the proceedings to
consider additional evidence.
1

Nev. Admin. Code 703.775 authorizes the Commission to reopen a proceeding to take
additional evidence if it does so before the issuance of a final order. The Commission's
previous order upholding the validity of the gas bill did constitute a final order. The lower
court's action in remanding the case to the Commission, however, put the case in the same
position as if no final order had been entered. See Southern Pacific Company v. Corporation
Commission, 321 P.2d 224 (Ariz. 1958); Tamiami Trail Tours, Inc. v. Railroad Commission,
174 So. 451 (Fla. 1937); Rock Island Motor Trans. Co. v. Murphy Motor Fr. Lines, 58
N.W.2d 723 (Minn. 1953). The Commission was therefore entitled to reopen the proceedings
to consider additional evidence. The order granting the writ of mandamus is therefore
reversed.
____________________

1
Respondents have not argued that the prior order of the lower court, which was affirmed by this court,
prohibited the Commission from reopening the prior proceedings.
____________
101 Nev. 122, 122 (1985) SIIS v. Partlow-Hursh
STATE INDUSTRIAL INSURANCE SYSTEM, Appellant,
v. LEILANI PARTLOW-HURSH, Respondent.
No. 15315
March 4, 1985 696 P.2d 462
Appeal from judgment reversing administrative determination. Second Judicial District
Court, Washoe County; John E. Gabrielli, Judge.
In proceedings in lieu of appeal, appeals officer found that worker's compensation
claimant's notice of appeal was untimely filed. On petition for judicial review, the district
court reversed and ordered an appeal on the merits. The State Industrial Insurance System
appealed. The Supreme Court held that: (1) a notice of appeal form is filed when it is
received by appeals officer; (2) 30-day time limit is jurisdictional and mandatory; and (3) the
trial court erred in excusing the claimant from the mandatory time limits.
Reversed.
Ronnie N. Likes, Associate General Counsel, Carson City, for Appellant.
Richard J. Bortolin, Carson City, for Respondent.
Supreme Court's interpretation of notice of appeal provision prescribing 30-day time limit for filing an
appeal from decision of hearing officer relating to claim for compensation is based on independent
appellate review, as opposed to more deferential standard of review. NRS 616.5422, subd 1.
Notice of appeal form in worker's compensation proceeding is filed for limitations purposes when it is
received by appeals officer. NRAP 25(a); NRS 616.5422, subd 1.
3. Appeal and Error; Workers' Compensation.
Where statute is silent, time period for perfecting appeal is generally considered to be mandatory, not
procedural; time periods for worker's compensation appeals are not treated differently.
Thirty-day time limit prescribed in statute for filing of appeal from decision of hearing officer on worker's
compensation claim is jurisdictional and mandatory. NRS 616.5422, subd. 1.
Trial court erred in excusing worker's compensation claimant from mandatory 30-day time limit for filing
appeal where, although appeals officer found that appeal notice had been mailed on last day for filing
appeal, notice was not received until some 16 or 17 days after time limit had expired. NRAP 25(a); NRS
616.5422, subd. 1.
OPINION
Per Curiam:
The State Industrial Insurance System (SIIS) appeals the district court's decision excusing
respondent's untimely appeal of her worker's compensation claim and concluding that the
time period specified for filing an appeal in NRS 616.5422(1)
1
is procedural. We agree with
appellant that the 30-day time limit prescribed in the statute is jurisdictional, and mandatory,
and thus respondent's untimely appeal must be dismissed. We therefore reverse the lower
court's decision.
FACTS AND PROCEDURAL HISTORY
The essential fact in this case is not in dispute: respondent's notice of appeal was untimely
received by the appeals officer. Some 17 days
2
after the 30-day time limit prescribed in NRS
616.5422(1), respondent's representative hand-delivered her notice of appeal to the appeals
officer's secretary.
In the proceedings in lieu of appeal, the appeals officer found that the appeal notice form
was mailed on the last day for filing an appeal. He determined that one who entrusts his
notice of appeal to the mails for the sake of convenience does so at his peril and has a
responsibility to ensure that the notice is received by the appeals officer in a timely fashion.
Ruling on her petition for judicial review, the district court found that the untimely filing
was excused as the notice was lost in the mail. It found that the late filing was not due to an
unjustified disregard of the statutory time limit, was not respondent's fault, and thus was
excusable. The lower court concluded that the time limit in NRS 616.5422(1) is procedural,
and excusable, not jurisdictional and mandatory, adopting the argument, analysis, and
authorities and conclusion of the West Virginia Supreme Court of Appeals in Bailey v.
SWCC, 296 S.E.2d 901 (W.Va. 1982). The district court reversed the appeals officer's
decision dismissing the appeal as untimely, and ordered an appeal on the merits.
____________________

1
NRS 616.5422(1) states:
Any party aggrieved by a decision of the hearing officer relating to a claim for compensation may
appeal the decision by filing a notice of appeal with an appeals officer within 30 days after the date of the
decision.

2
In her briefs, respondent contends that her appeal was only 16 days late, even though the appeals officer and
the district court found her appeal to be 17 days late. As her appeal is untimely no matter if 16 or 17 days late,
we need not address this alleged discrepancy.
ISSUES
[Headnote 1]
We are asked to interpret the notice of appeal provision specified in NRS 616.5422(1).
Our interpretation is based on an independent appellate review, as opposed to a more
deferential standard of review. Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d
3, 4 (1984). In light of this standard of review, we must determine whether mailing
constitutes filing for purposes of NRS 616.5422(1), and whether the 30-day time specified for
filing an appeal is jurisdictional or procedural.
FILING AN APPEAL
Even though counsel's secretary testified that she understood that the filing date for a
notice of appeal form is the day it is received by the appeals officer, respondent argues that
the mailing of the form within the 30-day time limit is a timely filing. The district court made
no ruling on this point, but in finding that the appeal was filed 17 days late, the court
implicitly determined that mailing does not constitute filing.
Likewise, while we have never expressly held that mailing is not filing, we have implicitly
determined that the two concepts are defined by their plain meaning. Nyberg, 100 Nev. at
323, 683 P.2d at 4. Analogously, the Nevada Rules of Appellate Procedure clearly indicate
that in cases before this court, filing shall not be timely unless the papers are received by the
clerk within the time fixed for filing. NRAP 25(a) (Emphasis added).
The Ninth Circuit has determined that [m]ere mailing is not enough in filing documents
with a local draft board, when the governing statute did not specify mailing as a means of
filing. Blades v. U.S., 407 F.2d 1397, 1399 (9th Cir. 1969).
[Headnote 2]
Respondent has not invited us to consider any contrary authority. We hold, therefore, that a
notice of appeal form is filed pursuant to NRS 616.5422(1) when it is received by the appeals
officer.
30-DAY TIME LIMIT
The SIIS contends that the 30-day time limit specified in NRS 616.5422(1) is
jusrisdictional and not procedural, and, thus, the district court erred in finding respondent's
untimely appeal excusable.
[Headnote 3]
NRS 616. 5422(1) is silent as to whether or not the time limit can be excused. Where the
statute is silent, the time period for perfecting an appeal is generally considered to be
mandatory, not procedural.
perfecting an appeal is generally considered to be mandatory, not procedural. 1A Sutherland,
Statutes and Statutory Construction, 25.04 (4th Ed. 1984). Time periods for worker's
compensation appeals are not treated differently. 3 Larson, Workmen's Compensation Law,
80.52(a) (1983). What appears to be a majority of jurisdictions has concluded that the
statutory time limit to appeal a worker's compensation claim is mandatory and jurisdictional.
3

[Headnotes 4, 5]
We agree with this view, and thus hold that the 30-day time limit in NRS 616.5422(1) is
jurisdictional and mandatory. The district court erred in excusing respondent from the
mandatory time limit. Accordingly, the lower court's decision is reversed and the appeals
officer's dismissal is reinstated.
____________
101 Nev. 125, 125 (1985) Geissel v. Galbraith
SUE GALBRAITH GEISSEL, Executrix of the Estate of DONALD BENNET
GALBRAITH, Appellant, v. ROSEMARY E. GALBRAITH, TAM-O-CHELL, INC.;
CONSTRUCTION CONSULTANTS & MANAGEMENT, INC.; ROBERT RISHLING;
RAYMOND GREGOR; MARILYN GREGOR; FIRST AMERICAN TITLE COMPANY OF
NEVADA; CONSOLIDATED MORTGAGE COMPANY; and NEVADA SAVINGS AND
LOAN ASSOCIATION, Respondents.
No. 15568
March 4, 1985 695 P.2d 1316
Appeal from an order granting respondent's motion to dismiss pursuant to NRCP 41(b);
Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Executrix of father's estate brought reformation action claiming that deed of trust and
promissory note drawn by title company were prepared and took effect in manner contrary to
intentions of parties and should therefore be reformed. The district court dismissed the
reformation action.
____________________

3
E.g., Argonaut Ins. v. King, 666 P.2d 865 (Or.App. 1983); Cooper Indus. Products v. Meadows, 634
S.W.2d 400 (Ark.App. 1982); Smith v. Dept. of Labor and Indus., 596 P.2d 296 (Wash.App. 1979); McKenna
v. Indus. Com'n., 596 P.2d 405 (Colo. 1979); Roadway Express, Inc. v. Gray, 389 A.2d 407 (Md.App. 1978);
State ex rel. Valve Casting Co. v. Johnston, 396 N.E.2d 240 (OhioApp. 1978); Kissell v. Labor and Ind. Rel.
Appls. Bd., 549 P.2d 470 (Hawaii 1976); cert, denied, 429 U.S. 898 (1976); Kulovits Trucking v. Workmen's
Comp. Apl. Bd., 332 A.2d 892 (Pa. 1975).
dismissed the reformation action. Executrix appealed. The Supreme Court held that evidence
from which it could have been reasonably concluded that parties intended proceeds of sale to
remain sole and separate property of husband, despite note prepared by title company in favor
of the husband and wife as joint tenants was sufficient to prove prima facie case.
Gladstone and Stark, Las Vegas, for Appellant.
Brown, Wells, Beller & Kravitz, Las Vegas, for Respondent Galbraith.
Andras F. Babero, Las Vegas, for Respondent Nevada Savings.
Lionel, Sawyer & Collins and Dennis L. Kennedy, Las Vegas, for remaining Respondents.
Reformation of Instruments.
In reformation action, evidence from which it could reasonably have been concluded that parties intended
proceeds of sale to remain sole and separate property of husband, despite note prepared by title company,
contrary to escrow instructions, in favor of husband and wife as joint tenants was sufficient to prove a
prima facie case.
OPINION
Per Curiam:
This is an appeal from an NRCP 41(b) dismissal of reformation action. Appellant Geissel
is the executrix of the estate of her father, Donald Galbraith. In her amended complaint the
executrix claims that a deed of trust and a promissory note drawn by respondent First
American Title Company were prepared and took effect in a manner contrary to the intentions
of the parties and should therefore be reformed.
The controversy arises out of the sale of certain real property owned by Donald Galbraith
as separate property. The original escrow was prepared in such a manner as to be executed by
Galbraith as an unmarried man. Since Galbraith had married since his acquisition of the
property, this designation was inaccurate; and he was requested by respondent First American
Title Company to get a quitclaim from his wife or arrange to have her sign the deed.
Galbraith insisted to William R. Smith, an agent of the title company, that the property
was his sole and separate property and that he was unhappy with the problem raised, as he
saw it, by the title company.
title company. Later he told Smith that it was all right to have her come down and sign.
New escrow instructions were prepared, indicating that a deed was to be signed by Donald
and Rosemary Galbraith, husband and wife as joint tenants. The escrow provision relating to
payment, however, provided that there would be executed by the buyer a deed of trust and a
promissory note in the amount of $142,000.00 in favor of Donald B. Galbraith. Rather than
preparing a note in favor of Donald B. Galbraith, the title company prepared a deed of trust
and a note for $142,000.00 payable to Donald B. Galbraith and Rosemary E. Galbraith,
husband and wife as joint tenants. The record is not clear as to why the note was made out in
a manner contrary to the escrow instructions. There is no indication that Donald Galbraith
consented to the variance. To the contrary, he persistently maintained that the sale was of his
separate property; and approximately 90 days after the escrow concluded he filed suit to quiet
title to the property as his sole and separate property. This suit was resolved by the parties
entering into a stipulation that the subject real property was the sole and separate property
of Donald Galbraith. On the same day as the stipulation was signed a judgment was entered
declaring the property to be the separate property of Donald Galbraith. It is true that the
stipulation was signed after the escrow was in operation so that Donald Galbraith's stipulated
and declared separate property interest had to relate to the proceeds of the property rather than
to the title; still, as of the date of the parties' stipulation and the judgment, on July 22, 1981, it
is quite clear that Donald Galbraith's interest in the property, whatever it might be, was and
was intended by both parties to be his, sole and separate, rather than joint or community
property.
The evidence in this case is anything but clear. It does not clearly appear, for example, that
Rosemary Galbraith at anytime after stipulating to the separate nature of the property ever
claimed to be a joint tenant. Supplemental escrow instructions dated February 22, 1980,
authorizing Consolidated Mortgage Company to collect the $142,000.00 note were signed by
Donald Galbraith alone. Supplemental escrow instructions dated March 5, 1980, signed by
both Galbraiths authorized the title company to deposit all proceeds into Nevada Savings
and Loan Association Account Number 1700984-6, Mr. Galbraith's sole account. These
factors tend to favor a conclusion that the position of the executrix may be stronger than that
of the respondents.
Considering the above evidence it is very difficult to conclude, as did the trial judge, that
as a matter of law the plaintiff failed to prove a prima facie case for reformation, that is that
there was no sufficient evidence from which it could have been reasonably concluded that
the parties intended the proceeds of the sale to remain the sole and separate property of
Donald Galbraith.
concluded that the parties intended the proceeds of the sale to remain the sole and separate
property of Donald Galbraith. For this reason we reverse the judgment and remand the matter
for trial.
____________
101 Nev. 128, 128 (1985) Woods v. State
CATHY WOODS, Appellant, v. THE
No. 13318
March 5, 1985 696 P.2d 464
Appeal from judgment of conviction of one count of first-degree murder, Second Judicial
District Court, Washoe County; John W. Barrett, Judge.
Defendant was convicted in the district court of first-degree murder. Defendant appealed.
The Supreme Court, Gunderson, J., held that: (1) State could not be allowed to use woman as
prosecution witness to obtain conviction on one murder and then claim that she was not
sufficiently credible to testify regarding same conversations as defense witness in defendant's
trial for second murder; (2) there was sufficient corroboration of proffered statements against
interest identifying alleged killer; (3) proffered testimony regarding identity of alleged killer
complied with all three requirements of statute governing statements against interest; (4) trial
court's exclusion of testimony was clearly prejudicial to defendant; and (5) trial court
improperly refused to admit newspaper articles concerning victim's death.
David Parraguirre, Washoe County Public Defender, Jane G. McKenna, Deputy, Michael
B. McDonald, Deputy, Reno, for Appellant.
Brian McKay, Attorney General, Mills Lane, District Attorney, Edward B. Horn, Deputy,
Reno, for Respondent.
1. Witnesses.
Individual's alleged statements to his girl friend that he had found a girl whose car had broken down and
slashed her throat would have been admissible as prior inconsistent statements had he been permitted to
testify at trial, as he did at offer of proof, and denied having killed girl. NRS 51.035, subd. 2(a).
101 Nev. 128, 129 (1985) Woods v. State
2. Criminal Law.
In order for statement against interest to be trustworthy, it must actually have been made by declarant and
must afford basis for believing truth of matter asserted. NRS 51.345; Fed.Rules Evid.Rules 804(b)(3),
804 note, 28 U.S.C.A.
3. Criminal Law.
In determining whether declarant in fact made proffered statement against interest, trial court may
consider credibility of witness.
4. Criminal Law.
State could not be allowed to use woman as prosecution witness to obtain conviction on one murder
charge and then claim that she was not sufficiently credible to testify as defense witness regarding
statements against interest in trial of third party for second murder.
5. Criminal Law.
Evidence placing alleged killer near scene of crime on night of murder and evidence that alleged killer
knew fact which was not mentioned in any news accounts of crime supported finding of trustworthiness of
proffered statements against interest regarding identity of killer. NRS 51.345.
6. Criminal Law.
Fact that woman confessed to her former jailmate that she had committed one murder made it more likely
that she would confess to her, during same period of time, that she committed another murder, thus
providing indicia of trustworthiness of proffered testimony of that confession. NRS 51.345.
7. Criminal Law.
Quantum of corroboration for proffered statements against interest identifying alleged killer demanded by
district court was particularly inappropriate in light of paucity of corroboration provided by State for
defendant's confession, itself given under circumstances not conducive to reliability in that defendant was
patient at state hospital when she confessed.
8. Criminal Law.
Assurances of trustworthiness required by statute governing admission of statements against interest
should not be measured by more restrictive standard than assurances of accuracy necessary to fall within
general exception for hearsay statements of unavailable witnesses. NRS 51.315, 51.345.
9. Criminal Law.
Proffered testimony identifying alleged killer complied with all three requirements for admission as
statement against interest in that declarant invoked Fifth Amendment privilege and thus became
unavailable, declarant's statements were clearly against her penal interest at the time made in that she
admitted that she helped dispose of evidence of the crime and had discussed killing a randomly chosen
victim to cover up earlier murder, and there was sufficient corroborating circumstances to assure accuracy
of statements and prospective witness had neither bias nor motive for testifying. NRS 51.345.
10. Criminal Law.
Evaluation of story of prospective witness, concerning statements allegedly made by her former jailmate
who stated that her boyfriend had killed victim, and decision of how much credence should be given to that
story, was for jury.
101 Nev. 128, 130 (1985) Woods v. State
11. Criminal Law.
Trial court's refusal to permit prospective witness to testify before jury regarding statements of her former
jailmate identifying her boyfriend as killer of victim was clearly prejudicial to defendant, in that without
that testimony, defendant was unable to properly present her version of events.
12. Criminal Law.
Newspaper articles are not inadmissible under hearsay rule if they are offered, not for the truth of their
contents, but for the fact of their publication.
13. Criminal Law.
Newspaper articles from which defendant could have gleaned all details she provided in support of her
confession were relevant where State argued in its opening and closing statements that defendant's
confession had contained information which only murderer could have known.
14. Criminal Law.
Determination of whether evidence is relevant lies within sound discretion of trial judge.
15. Criminal Law.
Fact that defendant who alleged that details she provided in support of her confession had been gleaned
from news accounts of murder might not have read those news accounts was not determinative of whether
newspaper articles were admissible since State argued that information provided by defendant could have
been known only to murderer, so that articles could properly have been used to show that details provided
by defendant were public knowledge.
OPINION
Appellant Cathy Woods was convicted of first-degree murder in the slaying of Michelle
Mitchell and was sentenced to life imprisonment without the possibility of parole. Because
we consider that certain evidentiary rulings of the district court precluded appellant from
receiving a fair trial, we reverse her conviction.
The record reflects the following facts. On the evening of February 24, 1976, Michelle
Mitchell's car broke down near the campus of the University of Nevada, Reno, and she
telephoned her mother to ask for a ride home. Mitchell's mother left immediately but could
not find her daughter. Mitchell's dead body was discovered a few hours later in the garage of
a nearby house. Her hands were bound with twine and her throat had been slashed.
For nearly three years no charges were brought in the Mitchell killing. In March of 1979,
the Reno Police Department received the information that a mental patient at the Louisiana
State University Medical Center at Shreveport, Louisiana, had told hospital staff that some
years ago in Reno she had killed a girl named Michelle.
101 Nev. 128, 131 (1985) Woods v. State
hospital staff that some years ago in Reno she had killed a girl named Michelle. The patient
was appellant Cathy Woods, who had been committed to the hospital in February of 1979.
Appellant told the hospital staff and subsequently Lieutenant Dennison of the Reno Police
Department that she had offered to help the girl fix her car, had taken her to a garage on the
pretext of getting some tools, had made a sexual proposal to her, and when rebuffed, had cut
her throat. Appellant was subsequently brought to Reno and tried.
Appellant entered a plea of not guilty. The defense theory was that appellant's confession
was the product of her mental illness: Mitchell had actually been killed by Tony Lima, the
boyfriend of Raye Wood, to cover up the contract murder of Peggy Davis by Raye Wood and
Marjorie Carter. The two women had beaten Davis to death with a hammer only a few days
before Mitchell was killed.
1
Raye Wood's former jailmate, Kathy Murnighan, was ready to
testify that Raye Wood had told her that she and Lima had discussed killing a woman to cover
up the Davis killing by making it appear as though both murders were the work of a
homicidal manic. One night Lima told Raye Wood that he had found a girl whose car had
broken down and had slashed her throat. Ray Wood and Lima together disposed of the
murder weapon.
Lima was called during the offer of proof and denied having killed Mitchell. Raye Wood
invoked her fifth amendment privilege against self-incrimination and refused to testify unless
she was granted immunity. The State declined to seek immunity on her behalf, and Raye
Wood was ruled to be unavailable. Defense counsel then sought to introduce Murnighan's
testimony under NRS 51.345. The district court refused to allow Murnighan to testify because
it did not consider her testimony sufficiently trustworthy to be admissible under the statute.
[Headnote 1]
Initially, we note that Murnighan's proffered testimony included not only Raye Wood's
statements about her own activities but also Raye Wood's narration of Lima's statements to
her. Lima's statements to Raye Wood present no problem under the hearsay rule. Lima
testified at the offer of proof and denied having killed Mitchell. Had he been permitted to
testify at trial, his statements to Raye Wood would have been admissible as prior inconsistent
statements. NRS 51.035(2)(a). However, Murnighan could not testify about any of Raye
Wood's statements to herincluding Raye Wood's narration of Lima's statementsunless
the district court admitted her testimony under NRS 51.345.
____________________

1
See Kaplan v. State, 99 Nev. 449, 663 P.2d 1190 (1983). Lima, who had been convicted of being an
accessory after the fact, was out on parole by the time appellant's trial began. Wood and Carter were serving
their sentences for first and second degree murder respectively.
101 Nev. 128, 132 (1985) Woods v. State
could not testify about any of Raye Wood's statements to herincluding Raye Wood's
narration of Lima's statementsunless the district court admitted her testimony under NRS
51.345. We turn then to consider the admissibility of Murnighan's testimony under the
statute.
1. A statement which at the time of its making:
. . .
(b) So far tended to subject [the declarant] to civil or criminal liability;
. . .
that a reasonable man in his position would not have made the statement unless he
believed it to be true is not inadmissible under the hearsay rule if the declarant is
unavailable as a witness. A statement tending to expose the declarant to criminal liability
and offered to exculpate the accused in a criminal case is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement.
Under the statute, a statement against penal interest is admissible if the declarant is
unavailable at the time of the trial and if the statement was against the declarant's penal
interest at the time when made. If the statement is offered to exculpate an accused, however,
an additional requirement exists: corroborating circumstances must clearly indicate that the
statement is trustworthy.
An examination of the record discloses that Murnighan's proffered testimony complied
with all three requirements. Raye Wood, the declarant, invoked her fifth amendment privilege
and thus became unavailable within the meaning of the Evidence Code. NRS 51.055(1)(a).
Raye Wood's statements were clearly against her penal interest at the time when made. By
admitting that she had helped dispose of the evidence of the crime, Raye Wood exposed
herself to criminal liability as an accessory after the fact. NRS 195.030(1). Since Raye Wood
and Lima had discussed killing a randomly chosen woman to cover up the Davis murder,
Raye Wood might also have exposed herself to criminal liability for conspiracy to commit
murder. NRS 199.480(1).
[Headnote 2]
It was the requirement of trustworthiness, however, which preoccupied the court below. In
order for a statement to be trustworthy evidence under the statute, the statement must actually
have been made by the declarant and must afford a basis for believing the truth of the matter
asserted. The legislative history of Rule 804(b)(3) of the Federal Rules of Evidence, on which
NRS 51.345 is based, indicates that its draftmen were particularly concerned with the
possibility of fabrication. United States v. Bagley, 537 F.2d 162, 167 {5th Cir. 1976) and the
legislative history cited therein. "[O]ne senses in the decisions a distrust of evidence of
confessions by third persons offered to exculpate the accused arising from suspicions of
fabrication either of the fact of the making of the confession or in its contents."
101 Nev. 128, 133 (1985) Woods v. State
v. Bagley, 537 F.2d 162, 167 (5th Cir. 1976) and the legislative history cited therein. [O]ne
senses in the decisions a distrust of evidence of confessions by third persons offered to
exculpate the accused arising from suspicions of fabrication either of the fact of the making
of the confession or in its contents. Notes of Advisory Committee on Proposed Rules, Fed.
Rules Evid. Rule 804(b)(3), 28 U.S.C.A. at 697.
[Headnote 3]
In determining whether the declarant in fact made the proffered statement, the trial court
may consider the credibility of the witness. United States v. Bagley, supra; Laumer v. United
States, 409 A.2d 190 (D.C. 1979); contra United States v. Atkins, 558 F.2d 133 (3rd Cir.
1977) (inquiry into trustworthiness of the declarant, not of the witness). It has been noted that
a test for admissibility of hearsay statements based on the credibility of the testifying witness
is unrelated to the purpose of the general rule against hearsay. United States v. Satterfield,
572 F.2d 687, 691-692 (9th Cir. 1978). This observation notwithstanding, the Satterfield
court acknowledged that the legislative history of the rule indicates that an inquiry into
whether the statements against penal interest were actually made is proper when the
statements are offered to exculpate an accused and that the credibility of the witness is one of
the factors the court should consider. Id.
[Headnote 4]
The district court's primary reason for excluding Murnighan's testimony was that it did not
consider her to be a credible witness. The trial judge made this determination in spite of the
fact that he had presided over Raye Wood's trial at which Murnighan, as witness for the
prosecution, testified about her conversations with Raye Wood. Raye Wood's statements
about the Davis slaying and her statements about the Mitchell slaying were interwoven in the
same series of conversations in the same surroundings during the same period of time. It is
absurd to contend that Murnighan was credible when she related Raye Wood's statements
about the Davis slaying but not credible when she related Raye Wood's statements about the
Mitchell slaying. Cf. United States v. Benveniste, 564 F.2d 335 (9th Cir. 1977) (when
evidence of accusatory statements admitted, error to exclude at same trial evidence of
exculpatory statements made by same declarant regarding same subject matter).
We recognize that Murnighan's testimony at Raye Wood's trial was admitted under a
different hearsay exception and that the Evidence Code did not require, or indeed authorize,
the district court to inquire into Murnighan's credibility prior to letting her testify. However,
Murnighan either was or was not a credible witness as to her conversations with Raye
Wood.
101 Nev. 128, 134 (1985) Woods v. State
witness as to her conversations with Raye Wood. The failings which were mentioned by the
district courther emotional instability, her criminal recordwere equally present when she
testified at Raye Wood's trial. If they were not fatal to her credibility at that trial, they should
not have precluded her from telling her story to the jury at appellant's trial. The state
demonstrated its belief that Murnighan was a credible witness when it put her on the stand in
Raye Wood's trial. Indeed, the State demonstrated that belief when it employed Murnighan as
an informant and facilitated her access to Raye Wood in prison so that Murnighan could
obtain information from her. During that period of time Murnighan provided information
about two murders: police officers testified that most of the verifiable information had been
proved accurate. The State cannot be allowed to use Murnighan as a prosecution witness to
obtain a conviction on one murder and then to claim that she is not sufficiently credible to
testify regarding the same conversations as a defense witness in the trial of a third party for
the second murder.
[Headnote 5]
Furthermore, there is sufficient corroboration of the proffered statements to afford a basis
for believing in the truth of their contents. See United States v. Bagley, 537 F.2d at 167. A
maroon Monte Carlo was seen near the scene of the crime on the night of the murder. Lima
traded in his car, a maroon Monte Carlo soon after Mitchell was killed. A footprint in the
garage matched Lima's shoe size. Murnighan said that Lima lost something in the garage; a
blue cigarette lighter was found on the scene. Most strikingly, Murnighan stated that Lima
had said that Mitchell was having her menstrual period when he killed her. Lima was trying
to excuse himself for not having stabbed Mitchell in the vagina as Davis had been stabbed,
because Raye Wood berated him for not having killed Mitchell the same way that Davis had
been killed. Mitchell's autopsy had disclosed that she had been having her menstrual period
prior to her death. This fact was not mentioned in any of the numerous news accounts of the
crime, and the State has been unable to proffer an alternative explanation of how Murnighan
could have learned of it.
[Headnote 6]
The inquiry into whether the proffered statement is trustworthy has led a number of courts
to focus on the relationship of the declarant and the witness. Chambers v. Mississippi, 410
U.S. 284 (1973); United States v. Guillette, 547 F.2d 743 (2nd Cir. 1976); Laumer v. United
States, 409 A.2d 190 (D.C. 1979). For instance, a statement against interest made to a close
friend or relative is considered to be more reliable than a statement made to a stranger.
101 Nev. 128, 135 (1985) Woods v. State
a stranger. No such relationship existed between Raye Wood and Murnighan. However, Raye
Wood had confessed to Murnighan that she had committed one murder. She had been
convicted of that murder, and during the offer of proof she admitted that she had committed
it. The fact that Raye Wood confessed to Murnighan that she had committed one murder
makes it more probable that she would confess to her, during the same period of time, that
she had committed another murder.
[Headnote 7]
These corroborating circumstances seem to us ample to support a finding of
trustworthiness under NRS 51.345. The quantum of corroboration demanded by the district
court was particularly inappropriate in light of the paucity of corroboration provided by the
State for appellant's confession, itself given under circumstances not conducive to reliability.
Cf. People v. Lettrich, 108 N.E.2d 488 (Ill. 1952) (improper to exclude confession of third
party on hearsay grounds when defendant's conviction rested on his repudiated confession
obtained under duress.)
Additionally, we are guided by our decision in Johnstone v. State, 92 Nev. 241, 548 P.2d
1362 (1976). In Johnstone appellant and two companions were convicted of committing a
murder in the motel where they were staying. To show that he was not even in the motel
when his companions killed the victims, appellant wished to have a police officer testify
regarding statements made to him by a couple staying at the motel. The couple had related
that on the evening of the murder they had met two men asking directions to the room
appellant shared with his companions. The district court, finding no applicable hearsay
exception, refused to allow the testimony to come before the jury. We reversed and remanded
for a new trial. We pointed out that the Evidence Code itself declares that the expressly stated
hearsay exceptions are illustrative and not restrictive; the general rule is that a statement is
admissible if its nature and the circumstances under which it is made offer assurances of
accuracy. NRS 51.075; NRS 51.315. The couple's statements fit into just such a category and
should have been admitted.
Many of the factors which we found persuasive in Johnstone are also present in this case.
Like the couple in Johnstone, Murnighan was not involved in any way with appellant Cathy
Woods. She had never met Tony Lima and her acquaintance with Raye Wood dated only
from her time in jail. No advantage accrued to her from either the prosecution or the prison
authorities for making her statements about Mitchell's murder. There is no suggestion of bias
on her part or of any motive either to inculpate Raye Wood or to exculpate appellant. Indeed,
at the time that Murnighan first related Raye Wood's statements she could not have
known what would aid appellant, for appellant had not yet implicated herself in the
Mitchell murder.
101 Nev. 128, 136 (1985) Woods v. State
time that Murnighan first related Raye Wood's statements she could not have known what
would aid appellant, for appellant had not yet implicated herself in the Mitchell murder.
[Headnote 8]
In Johnstone we relied on NRS 51.315, which renders admissible statements offering
strong assurances of accuracy if the declarant is unavailable. The statute declares that NRS
51.345 if illustrative of the general exception provided by NRS 51.315. The assurances of
trustworthiness required by NRS 51.345, the more specific statute, should not be measured
by a more restrictive standard than the assurances of accuracy necessary to fall within the
general exception of NRS 51.315.
[Headnotes 9-11]
Consequently, we hold that the district court erred in not permitting Murnighan to testify
before the jury regarding Raye Wood's statements. Both the contents of the statements and the
circumstances surrounding their making offer persuasive assurances that Raye Wood did in
fact make the statements attributed to her and that there is a basis for believing in the truth of
their contents. It was for the jury to evaluate Murnighan's story and to decide how much
credence it should be given. Furthermore, the district court's ruling was clearly prejudicial.
Without Murnighan's testimony, appellant was unable to properly present her version of the
events, without which her defense was undoubtedly far less persuasive than it might have
been. Chambers v. Mississippi, 410 U.S. at 294.
Appellant also attacks the district court's refusal to admit a set of newspaper articles
concerning Mitchell's death. The State argued in its opening and closing statements that
appellant's confession had contained information which only the murderer could have known.
The defense wished to introduce the newspaper articles to show that all the details provided
by appellant could have been gleaned from news accounts of the murder. The district court
ruled that the articles were not relevant and further were inadmissible hearsay evidence.
[Headnotes 12-15]
Newspaper articles are not inadmissible under the hearsay rule if they are offered not for
the truth of their contents but for the fact of their publication. United States v. Halifax County
Board of Education, 314 F.Supp. 65, 75 (E.D.N.C. 1970). Nor could the articles be properly
excluded as irrelevant. The determination of whether evidence is relevant lies within the
sound discretion of the trial judge. Lamborn v. Phillips Pacific Chemical Co., 575 P.2d 215
(Wash. 1978). However, the record shows that the district court based its ruling on the fact
that there was no evidence that appellant, who did not testify, had read any of the news
accounts.
101 Nev. 128, 137 (1985) Woods v. State
evidence that appellant, who did not testify, had read any of the news accounts. This factor
need not have been determinative. Since the State argued that information provided by
appellant could have been known only by the murderer, the newspaper articles could have
been properly used to show that the details provided by appellant were public knowledge.
Appellant also contends that the district court improperly admitted certain testimony
regarding her personal life. Since we have already concluded that appellant was prejudiced by
the improper exclusion of evidence, we do not find it necessary to decide this issue. Errors, if
any, that may have occurred will not necessarily recur on retrial.
Appellant was charged with a serious crime carrying a severe penalty. She was entitled to a
trial at which she could defend herself against these charges. The evidentiary rulings of the
district court, taken cumulatively, denied appellant a fair opportunity to present her defense.
Accordingly, we are compelled to reverse appellant's conviction and to remand for a new
trial.
Springer, C. J., and Mowbray and Steffen, JJ., concur.
____________
101 Nev. 137, 137 (1985) Sorensen v. First Federal
SVEN SORENSEN and SUSAN SORENSEN, Appellants, v. FIRST FEDERAL
SAVINGS & LOAN ASSOCIATION OF NEVADA, Respondent.
No. 15457
March 11, 1985 696 P.2d 995
Appeal from judgment of involuntary dismissal pursuant to NRCP 41(b) and denial of
motion to amend pleadings pursuant to NRCP 15(b); Second Judicial District Court, Washoe
County; Richard C. Minor, Judge.
Applicant brought action against savings and loan association with which he had applied
for mortgage life and mortgage disability insurance. The district court granted association's
motion for involuntary dismissal, and applicant appealed. The Supreme Court held that
applicant's claims that association had been delinquent in processing his application, resulting
in his remaining uninsured at time he became disabled and until it was too late to seek
alternative, were sufficient to state causes of action both in contract and negligence.
David Hamilton, Reno, for Appellants.
A. D. Jensen, Reno, for Respondent.
Insurance.
Applicant's claims that savings and loan association with which he applied for mortgage disability
insurance had been delinquent in processing his application, resulting in his remaining uninsured until after
he became disabled and it was too late to seek alternative, were sufficient to state causes of action against
association both in contract and negligence.
OPINION
Per Curiam:
1

On January 5, 1978, Sven Sorensen applied for a loan from First Federal Savings & Loan
Association to purchase a condominium under construction. On January 12, 1978, Sorensen
was advised that his credit report had been received and his application approved. Along with
the approval, Sorensen received applications for mortgage life and mortgage disability
insurance. Sorensen completed the applications for insurance on January 25, 1978, and
returned them to the bank. Sorensen was required to pay a loan origination fee of $250.00 for
First Federal's services in processing the loan package, obtaining verification and approval,
and for the time of the loan officer.
On June 21, 1978, the loan on the condominium closed. On July 26, 1978, Sorensen
sustained a back injury, rendering him disabled from work. Sorensen contacted agents of First
Federal, advised them of his injury, and requested claim forms for the disability insurance
benefits. The forms were filled out by Sorensen's physician on August 11, 1978, and returned
to First Federal.
When First Federal received the completed forms it was discovered that the insurance
application had never been sent to the insurance company. The date on the application was
changed from January 25, 1978 to August 11, 1978, and on September 25, 1978 the
application was forwarded to Minnesota Mutual Life Insurance Company. On that same day,
First Federal informed Sorensen that his disability insurance had not yet been approved and
that until First Federal received an approved policy, the disability claim could not be
submitted. Sorensen was not advised by First Federal that the application had not been sent.
On November 9, 1978, Minnesota Mutual sent a letter to Sorensen advising him that he was
ineligible for disability insurance because of his occupation as an ironworker.
____________________

1
The Honorable Thomas L. Steffen, Justice, voluntarily disqualified himself from consideration of this case.
advising him that he was ineligible for disability insurance because of his occupation as an
ironworker.
Sorensen brought an action against First Federal claiming breach of covenant of good faith
and fair dealing and breach of contract. At the conclusion of Sorensen's case-in-chief First
Federal made a motion for involuntary dismissal pursuant to NRCP 41(b). The motion was
granted without leave to amend the pleadings. This appeal followed.
In evaluating a motion to dismiss at the close of a plaintiff's case, plaintiff's evidence and
all reasonable inferences that can be drawn from the evidence must be admitted, and the
evidence must be interpreted in the light most favorable to plaintiff.
Shepard v. Harrison, 100 Nev. 178, 180, 678 P.2d 670, 672 (1984) (citations omitted).
Interpreting the evidence in a light most favorable to Sorensen, it is apparent that Sorensen
could have obtained alternative insurance had he known Minnesota Mutual would not insure
him. Because of what may be shown to be First Federal's delinquency in processing the
application, it might be concluded that Sorensen was not informed of his uninsurability until
it was too late to seek an alternative.
Thus, while we agree with the trial court that Sorensen has failed to state a cause of action
for breach of fiduciary duty, we hold Sorensen has presented facts sufficient to state a cause
of action in both contract
2
and negligence.
3

We therefore reverse the order of the trial court and remand for further proceedings
Springer, C. J., Mowbray and Gunderson, JJ., and Zenoff, Sr. J.,
4
concur.
____________________

2
Sorensen sufficiently alleged a breach of an implied contract to properly process the loan papers.

3
Although negligence was not expressly pleaded by Sorensen, sufficient allegations were alleged to give First
Federal adequate notice of a negligence claim. In fact, in First Federal's answer, contributory negligence was
pleaded as an affirmative defense. Sorensen should be granted leave to amend his complaint to expressly state a
cause of action in negligence.

4
The Honorable David Zenoff, Senior Justice, was designated to sit in this case. Nev. Const., art. 6, 19;
SCR 10.
____________
101 Nev. 140, 140 (1985) Korbel v. Korbel
RICHARD A. KORBEL, Appellant, v. ANGELINA
J. KORBEL, Respondent.
No. 15491
March 11, 1985 696 P.2d 993
Appeal from an order granting respondent's request for attorney's fees; Eighth Judicial
District Court, Clark County; Michael J. Wendell, Judge.
Husband moved to modify decree of divorce on basis of changed circumstances. The
district court denied motion for modification and ordered husband to pay certain sums of
money as provided in property settlement and also ordered husband to pay wife's attorney
fees of $2,500, $2,000 of which was for defending prior appeal. Husband appealed only from
that portion of order which awarded attorney fees for prior appeal. The Supreme Court held
that district court erred in awarding attorney fees for previous appeal.
Reversed.
Albert D. Massi, Ltd., and Allen Cap, Las Vegas, for Appellant.
Freedman & Whelton, Las Vegas, for Respondent.
1. Costs.
Absent statute or agreement, attorney fees are not recoverable.
2. Divorce.
Statute providing for support and cost of suit during pendency of divorce action in order to enable party
to carry on or defend in divorce action, had no application to appeal. NRS 125.040, subd. 1.
3. Divorce.
Statute which provides that whether or not application for suit money has been made under provision of
statute authorizing award of cost of suit during pendency of divorce action, court may award reasonable
attorney fees to either party in action for divorce if those fees are in issue under pleadings did not authorize
award of attorney fees for defending appeal, where $2,000 award by trial court was made six months after
appeal was dismissed by Supreme Court. NRS 125.150, subd. 3.
4. Divorce.
Statute providing award of fees when party is in default of money owed under divorce decree did not
authorize trial court award of attorney fees for appeal which had been dismissed by Supreme Court six
months previously. NRS 125.180.
OPINION
Per Curiam:
On July 30, 1980, Richard and Angelina Korbel were divorced. There were three children
of the marriage. Custody of the two daughters was awarded to Angelina while custody of
the son was awarded to Richard.
the two daughters was awarded to Angelina while custody of the son was awarded to Richard.
The divorce decree ratified and incorporated by reference a property settlement agreement
entered into by the parties on July 24, 1980. That agreement, among other things, provided
the terms and amounts of child support payments to be paid by Richard. On June 22, 1981,
upon motion of Richard, the decree of divorce was modified changing custody of the
daughters to Richard. On February 11, 1982, Angelina moved to amend the divorce decree as
modified to change the custody of all three children to Angelina and reinstating the terms of
support as provided in the original property settlement agreement. Richard opposed the
motion on the ground that the support obligations were abrogated when the decree of divorce
was modified June 22, 1981.
The district court agreed, in part, with Angelina. Although not raising the amount of child
support payments, the court found that the provisions of the property settlement agreement
were still in force. The court, therefore, reinstated the terms of child support payments as
established in the agreement. Richard appealed that decision to this court, and the appeal was
dismissed on April 20, 1983.
Thereafter, on June 13, 1983, Richard moved to modify the decree of divorce on the basis
of changed circumstances. Argument on the motion was heard in conjunction with argument
on an order to show cause for failure to pay alimony and child support.
On December 13, 1983, the court denied the motion for modification and ordered Richard
to pay certain sums of money for support, tuition, books, etc., as provided in the property
settlement agreement. The court also ordered Richard to pay Angelina's attorney's fees of
$2,500.00, $2,000.00 of which was for defending the prior appeal. Richard appeals only from
that portion of the order which awarded attorney's fees for the prior appeal.
[Headnote 1]
Absent statute or agreement, attorney's fees are not recoverable. Consumers League of
Nevada v. Southwest Gas Corp., 94 Nev. 153, 576 P.2d 737 (1978). Angelina argues that
NRS 125.040(1), NRS 125.150(3) and NRS 125.180 authorized the court to award attorney's
fees for the prior appeal. We disagree.
[Headnote 2]
NRS 125.040(1) provides for support and cost of suit during pendency of the divorce
action. It requires application to the court and notice to the other party. The purpose of NRS
125.040(1) is to enable the other party to carry on or defend in the divorce action and has no
application to an appeal.
[Headnote 3]
NRS 125.150(3) provides: Whether or not application for suit money has been made
under the provisions of NRS 125.040, the court may award a reasonable attorney's fee to
either party to an action for divorce if those fees are in issue under the pleadings. This statute
is equally inapplicable. The $2,000.00 award was made six months after the appeal was
dismissed by this court.
[Headnote 4]
Finally, NRS 125.180 provides no authority for the award. This statute provides an award
of fees when one party is in default of money owed under a decree of divorce.
No authority exists which would allow the district court to award attorney's fees for an
appeal which had been dismissed six months previously. We hold, therefore, that the district
court erred in awarding attorney's fees for the previous appeal.
Accordingly, the district court's order awarding Angelina $2,500.00 in attorney's fees is
reversed and remanded with instruction to the district court to modify the award in
accordance with this opinion.
1

Springer, C. J., Mowbray, Steffen, and Gunderson, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

1
Angelina's request for attorney's fees for the instant appeal, on the ground that this appeal is frivolous, is
denied.

2
The Honorable David Zenoff, Senior Justice, was designated to sit in this case. Nev. Const., art. 6, 19;
SCR 10.
____________
101 Nev. 142, 142 (1985) O'Dell v. Martin
ROBERT O'DELL, CHARLENE O'DELL, OTTO WILLIAM O'DELL and JANICE
O'DELL, Appellants, v. FRED MARTIN and VALLEY BANK OF NEVADA, Respondents.
No. 15643
March 14, 1985 696 P.2d 996
Appeal from an order granting summary judgment; Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
Purchasers of land bought action against bank and bank employee for damages caused by
their failure to promptly record deed in accord with agreement. The district court entered
summary judgment for bank and its employee, and purchasers appealed. The Supreme Court
held that bank's admission of negligence raised genuine issue of material fact as to its
liability for purchasers' inability to obtain loan due to federal tax liens recorded on
property between signing of deed and ultimate recordation.
negligence raised genuine issue of material fact as to its liability for purchasers' inability to
obtain loan due to federal tax liens recorded on property between signing of deed and ultimate
recordation.
Jeffrey Ian Shaner, Las Vegas, for Appellants.
Paul C. Parraguirre, Lorin C. Parraguirre, Douglas McCarthy, Las Vegas, for
Respondents.
1. Judgment.
On motion for summary judgment, district court must review evidence in light most favorable to
non-moving party and give party benefit of all favorable inferences that may be drawn from subsidiary
facts.
2. Judgment.
Summary judgment should be granted if there is no genuine issue as to any material fact and if moving
party is entitled to judgment as a matter of law. NRCP 56(c).
3. Judgment.
Bank's admission that its failure to record deed as promised constituted negligence raised genuine issue
of material fact as to bank's liability for purchasers' inability to obtain construction loan because of federal
tax liens recorded against property between signing of deed and its ultimate delayed recordation.
OPINION
Per Curiam:
In May, 1979, appellants Robert and Charlene O'Dell entered into an agreement to sell a
parcel of land to Otto and Janice O'Dell for $14,000.00. Respondent Fred Martin, an
employee of respondent Valley Bank, agreed to handle the recording of the grant, bargain and
sale deed for the parties. The deed was signed and the property conveyed on June 1, 1979.
The grant, bargain and sale deed was not recorded until August 13, 1979. Valley Bank
concedes that the failure to record the deed constitutes negligence.
Between the signing of the deed and the ultimate recordation of the deed, federal tax liens
were recorded against all property belonging to Robert O'Dell, including the property in
dispute here. Title to the property was thus clouded by these liens and Otto O'Dell was unable
to obtain an otherwise approve construction loan from Nevada Savings and Loan.
The O'Dells filed a complaint against Fred Martin and Valley Bank alleging negligence on
the part of the bank for failing to record the grant, bargain and sale deed. Respondents Martin
and Valley Bank filed a motion to dismiss and a motion for summary judgment.
Valley Bank filed a motion to dismiss and a motion for summary judgment. The motion for
summary judgment was granted and the O'Dells appealed. We reverse.
[Headnotes 1, 2]
On a motion for summary judgment, a district court must review the evidence in a light
most favorable to the non-moving party and give that party the benefit of all favorable
inferences that may be drawn from the subsidiary facts. Lipshie v. Tracy Investment Co., 93
Nev. 370, 375, 566 P.2d 819, 822 (1977). Summary judgment should be granted if there is
no genuine issue as to any material fact and if the moving party is entitled to a judgment as
a matter of law. NRCP 56(c).
[Headnote 3]
We hold that there still exist questions of fact, particularly as to damages. Accordingly, the
order granting summary judgment is reversed, and the case is remanded to the district court
for trial.
____________
101 Nev. 144, 144 (1985) Brown v. Brown
WILLIAM A. BROWN, Appellant, v. MARY
SHIRLEY BROWN, Respondent.
No. 12716
March 19, 1985 696 P.2d 999
Appeal from a divorce decree distribution and support award. Eighth Judicial District
Court, Clark County; John F. Mendoza, Judge.
Ex-husband appealed from a divorce decree entered in the district court. After remand, the
Supreme Court held that: (1) ex-husband was entitled to cancel life insurance policies without
consequences, even though divorce decree awarded each party equal interest in insurance
policies owned by parties, including equal interest in cash value of said policies, and (2)
imposition of per diem charge of $70 to cover cost of confinement for contempt was error.
Reversed in part.
[Rehearing denied August 8, 1985]
Colucci, Minagil & Aurbach, Las Vegas, for Appellant.
Keefer, O'Reilly & Haight, Las Vegas, for Respondent.
1. Divorce.
Ex-husband was entitled to cancel life insurance policies without consequences, even though divorce
decree awarded each party equal interest in insurance policies owned by parties, including equal interest in
cash value of said policies, where there was no mention in decree that ex-husband
must maintain policies.
101 Nev. 144, 145 (1985) Brown v. Brown
in cash value of said policies, where there was no mention in decree that ex-husband must maintain
policies.
2. Contempt.
While courts have inherent power to protect and defend their decrees by contempt proceedings, they are,
nevertheless, bound by statute.
3. Contempt.
Imposition of per diem charge of $70 to cover cost of confinement for contempt was error; furthermore,
rendition of such award in favor of county, which was not party to action, was error. NRS 22.020,
22.100, 22.110.
OPINION
Per Curiam:
The parties to this appeal were married in 1954. On April 23, 1980, the marriage was
dissolved by entry of a decree of divorce. Relevant to the issues discussed herein, the district
court awarded each party an equal interest in the insurance policies owned by the parties,
including an equal interest in the cash value of said policies, if any. The marital residence was
awarded to respondent subject to appellant's equity interest of $15,000 due and payable by
respondent five years from the date of divorce. Respondent was also awarded a percentage of
appellant's military retirement benefits which were determined to be community property.
Thereafter appellant appealed to this Court. We remanded the matter to the district court to
allow it to reconsider its decree in view of McCarty v. McCarty, 453 U.S. 210 (1981). The
district court subsequently held, in light of McCarty, that the military benefits were
appellant's sole and separate property. The spousal support award was also modified due to
respondent's changed circumstances. Appellant appealed this decision and refused to comply
with the district court's orders.
After the decree was filed and prior to this appeal, appellant canceled his life insurance
policies. Additionally, appellant refused to comply with the terms of the decree and was
found to be in contempt of court and placed in custody. Thereafter appellant was again
brought before the court whereupon the canceled insurance policies were addressed. The
lower court perceived the cancellation of insurance policies to be a violation of the decree and
ordered that appellant be divested of his interest in the marital residence. This divestiture was
based upon appellant's equity in the residence equaling approximately one-half the face value
of the policies. The district court thus sought to compensate respondent for her half interest in
the policies. We are persuaded that such action was improper.
[Headnote 1]
There is no mention in the decree that appellant must maintain his life insurance policies.
101 Nev. 144, 146 (1985) Brown v. Brown
his life insurance policies. Therefore, appellant was entitled to cancel the life insurance
policies in question and such a decision should have been without consequence.
As previously mentioned, appellant was extremely recalcitrant since the granting of the
divorce, as evidenced by his refusal to obey subsequent orders of the court. As a result, in
addition to fining and incarcerating appellant, the district court imposed a per diem charge of
$70 to cover the costs of confinement.
[Headnote 2, 3]
While courts have inherent power to protect and defend their decrees by contempt
proceedings, Noble v. Noble, 86 Nev. 459, 463, 470 P.2d 430, 432 (1970), courts are,
nevertheless, bound by statute. Nevada's statutes provide for imposition of fines or
confinement, or both, but do not provide for a per diem award to cover the costs of
confinement. See NRS 22.010; 22.100; 22.110. Moreover, the per diem award was in favor of
Clark County, despite the fact that the County was not a party to this civil action. This was
error. See 46 Am.Jr.2d Judgments 86.
We have considered appellant's remaining assignments of error and have concluded they
are either without merit or do not warrant reversal. Accordingly, with the exception of those
issues disposed of by this decision, the remainder of the district court's judgment is affirmed.
____________
101 Nev. 146, 146 (1985) Jordon v. Director, Dep't of Prisons
VICTOR JAY JORDON, Appellant, v. VERNON G. HOUSEWRIGHT,
Director of the Nevada Department of Prisons, Respondent.
No. 15987
March 19, 1985 696 P.2d 998
Appeal from denial of a petition for writ of habeas corpus, First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Prisoner appealed from order of the district court denying his post-conviction petition for
writ of habeas corpus. The Supreme Court held that his notice of appeal, filed 21 days after
entry of order denying petition, was untimely.
Appeal dismissed.
Aebi, FitzSimmons, and Lambrose, Carson City, for Appellant.
Brian McKay, Attorney General, and Brooke A. Nielson, Deputy Attorney General, Carson
City, for Respondent.
Thomas E. Perkins, State Public Defender, Carson city, Amicus Curiae.
1. Habeas Corpus.
Written notice of entry of order or judgment is irrelevant in determining time for perfecting appeal in
habeas corpus proceedings. NRS 34.380, subd. 3; NRAP 26(c).
2. Habeas Corpus.
Appellate review of habeas corpus proceedings exists by reason of legislative grant.
3. Constitutional Law; Habeas Corpus.
Legislative regulation of writ of habeas corpus process, including time for filing notice of appeal, is
neither unconstitutional encroachment on powers of judiciary nor a suspension of writ of habeas corpus in
violation of federal or state constitutions. NRS 34.380, subd. 3.
4. Habeas Corpus.
Notice of appeal filed 21 days after entry of order denying prisoner's petition for writ of habeas corpus
was untimely, even though written notice of entry of order was mailed to prisoner's counsel 18 days prior to
filing notice of appeal. NRS 34.380, subd. 3; NRAP 26(c).
OPINION
Per Curiam:
Appellant, a prisoner at the Nevada State Prison in Carson City, filed a post-conviction
petition for a writ of habeas corpus in the First Judicial District Court. On July 2, 1984, a
hearing was held at which the district court orally denied the petition and directed
respondent's attorney to prepare a written order. The written order denying the petition for
writ of habeas corpus was entered on July 10, 1984, and respondent mailed written notice of
entry of the order to appellant's counsel on July 13, 1984. The notice of appeal was filed July
31, 1984, twenty-one days after entry of the order denying appellant's petition for a writ of
habeas corpus.
Under NRS 34.380(3), an appeal from an order of the district court denying a petition for a
writ of habeas corpus must be made within 15 days after the day of entry of the order or
judgment. On December 12, 1984, we ordered appellant to show cause why this appeal
should not be dismissed for lack of jurisdiction due to the untimeliness of the notice of
appeal. In response to our order, appellant primarily contends that the 15-day time period for
filing the notice of appeal under NRS 34.380 began to run the date he was served with written
notice of entry of the order, rather than the date of entry of the order denying the petition.
Additionally, appellant argues that he had three additional days to file the notice of appeal
pursuant to NRAP 26(c) because written notice of entry of the order was served upon him
by mail.1 Cf.
because written notice of entry of the order was served upon him by mail.
1
Cf. NRAP 4(a)
(notice of appeal in civil cases must be filed within 30 days of date of service of written
notice of entry of judgment or order). Thus, according to appellant, he had 18 days from July
13, 1984, the date he was served with written notice of entry of the lower court's order, within
which to file his notice of appeal. Because his appeal was filed within 18 days from that date,
appellant concludes that his appeal was timely filed. This argument is without merit.
[Headnote 1]
In Hill v. Warden, 96 Nev. 38, 604 P.2d 807 (1980), we recognized that habeas corpus is a
special statutory remedy which cannot be classified as either civil or criminal for all purposes.
NRS 34.380(3) provides a specific time period for taking an appeal from an order or
judgment of the district court denying an application for a writ of habeas corpus. The statute
allows a fifteen day period from the day of the entry of the order or judgment. Unlike NRAP
4(a), NRS 34.380(3) does not contain a provision relating to service of written notice of entry
of the order appealed from. Thus, written notice of entry of the order or judgment is irrelevant
in habeas proceedings, and NRAP 26(c) is not applicable to enlarge the time for perfecting an
appeal. Cf. NRAP 4(b) (notice of appeal in criminal cases must be filed within 30 days after
date of entry of judgment or order).
[Headnotes 2, 3]
While we are sympathetic to appellant's argument that the statute does not provide for the
most practical method of insuring that habeas corpus petitioners are informed that the appeal
period has begun to run, we conclude that the legislative expression on the statutory time
limit is clear and unambiguous. Appellate review of habeas corpus proceedings in Nevada
exists by reason of legislative grant. Legislative regulation of the writ process, including the
time for filing the notice of appeal in habeas corpus cases, is neither an unconstitutional
encroachment on the powers of the judiciary nor a suspension of the writ of habeas corpus in
violation of the federal or state constitutions. See Gary v. Sheriff, 96 Nev. 78, 605 P.2d 212
(1980).
[Headnote 4]
Having determined that appellant's notice of appeal was untimely filed, we conclude that
we lack jurisdiction to entertain this appeal. Accordingly, this appeal is dismissed.
____________________

1
NRAP 26(c) provides that whenever a party is required or permitted to do an act within a prescribed period
after service of a paper upon him and the paper is served by mail, three (3) days shall be added to the prescribed
period.
____________
101 Nev. 149, 149 (1985) Sheriff v. Luqman
SHERIFF, CLARK COUNTY, Appellant, v. YUSUF
LUQMAN, aka JOE CLARK, Respondent.
No. 14566
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
SHARON KAY LINGLE, Respondent.
No. 14858
March 22, 1985 697 P.2d 107
Appeals from orders granting pretrial petitions for habeas corpus; Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
County sheriff's department appealed from two orders of the district court granting pretrial
habeas corpus relief to respondents who were arrested for violating various provisions of
Controlled Substances Act. The Supreme Court held that: (1) 1981 amendment to the
Uniform Controlled Substances Act does not unconsitutionally delegate to State Board of
Pharmacy legislative power to define elements of crime; (2) amendment is not
unconstitutionally vague; and (3) respondents could be held accountable for violation of the
Act although Pharmacy Board had not yet promulgated schedules of controlled substances as
of date of alleged infractions.
Reversed.
Robert J. Miller, District Attorney, Clark County, for Sheriff, Clark County, Appellant.
Morgan D. Harris, Public Defender, Clark County, for Yusuf Luqman, Respondent.
Brian McKay, Attorney General, Carson City, Robert J. Miller, District Attorney, Clark
County, for Sheriff, Clark County, Appellant.
Morgan D. Harris, Public Defender, Clark County, for Sharon Kay Lingle, Respondent.
1. Criminal Law.
Power to define what conduct constitutes a crime lies exclusively within power and authority of the
legislature.
Legislative powers may not be delegated to another branch of government. Const. art. 3, 1.
Although legislature may not delegate its power to legislate, it may delegate power to determine facts or
state of things upon which law makes its own operations depend.
Legislature can make application or operation of statute complete within itself dependent upon existence
of certain facts or conditions, the ascertainment of which is left to administrative agency, and in doing so
legislature vests agency with mere factfinding authority and not authority to legislate, and agency is only
authorized to determine facts which will make statute effective.
Authority to agency by legislature to determine facts which will make a statute effective will be upheld as
constitutional so long as suitable standards are established by legislature for agency's use of power, and
those standards must be sufficient to guide agency with respect to purpose of law and power authorized.
6. Constitutional Law; Drugs and Narcotics.
The 1981 amendments to Uniform Controlled Substances Act does not unconstitutionally delegate to
State Board of Pharmacy legislative power to define elements of crime given that standards for classifying
drugs into specific schedules are phrased in general terms sufficient to provide guidance to Board and
prevent arbitrary listings, and penalties for violating any of provisions of Act had already been established
by legislature so that Board had merely been delegated duty of applying its findings to legislative scheme.
NRS 453.011 et seq.; 1981 Nev. Stats. ch. 402, 1-39.
Statutes should be construed, if reasonably possible, so as to be in harmony with the Constitution.
An act is presumed to be constitutional and will be upheld unless violation of constitutional principles is
clearly apparent.
9. Statutes.
Where intention of legislature is clear, it is duty of court to give effect to such intention and to construe
language of statute to effectuate, rather than to nullify, its manifest purpose.
10. Criminal Law.
An individual may not be held criminally responsible for conduct which he could not reasonably
understand to be proscribed.
11. Criminal Law.
The law must afford a person of ordinary intelligence an opportunity to know what is prohibited so that
he may act accordingly, and it must also provide explicit standards of application in order to avoid arbitrary
and discriminatory enforcement.
12. Criminal Law.
Although principle of definiteness is given strict application in penal statutes, it does not require
impossible standards of specificity.
13. Criminal Law.
A court may, in determining vagueness of a statute, consider entire statutory scheme.
14. Drugs and Narcotics.
Since the Uniform Controlled Substances Act clearly states that Pharmacy Board is to schedule drugs and
since schedules are set forth in administrative code, Act is sufficiently definite in its scheme to delegate to
Pharmacy Board authority to determine those facts which will make the law operative and is not
unconstitutionally vague. NRS 453.011 et seq., 453.031, 453.041, 453.166; 1981 Nev. Stats. ch. 402,
1-39.
15. Statutes.
Effect must be given to clear intent of legislature when construing statutory language.
Legislature never intended to decriminalize, even temporarily, conduct described by the Uniform
Controlled Substances Act; rather, it was intent of legislature at time of amendment of the Act to invalidate
legislative schedules upon adoption of new administrative schedules by Pharmacy Board. NRS 453.011
et seq.; 1981 Nev. Stats. ch. 402, 1-39.
Controlled substances specified in former schedules, notwithstanding use of the word repeal, continued
in effect and were automatically incorporated into new corresponding schedules when 1981 amendment to
the Uniform Controlled Substances Act took effect; thus, petitioners could be charged with crimes
involving controlled substances although task of listing and defining substances had not been carried out by
Pharmacy Board under amendment at time alleged crimes were committed. NRS 453.011 et seq.; 1981
Nev. Stats. ch. 402, 1-39.
OPINION
Per Curiam:
The Clark County Sheriff's Department appeals from two orders granting pretrial habeas
corpus relief to respondents who were arrested for violating various provisions of Nevada's
controlled substance act. There are three basic issues before this court: whether the 1981
amendment
1
to the Uniform Controlled Substances Act (UCSA) unconstitutionally delegates
to the state board of pharmacy the legislative power to define the elements of a crime;
whether the said amendment is unconstitutionally vague for failing to provide adequate notice
of the conduct proscribed by its provision; and, whether respondents may be held accountable
for violation of the UCSA where the pharmacy board had not promulgated schedules of
controlled substances as of the date of the alleged infractions. For reasons stated in this
opinion, we have determined that each of the issues must be resolved against respondents and
therefore reverse the orders below granting writs of habeas corpus.
The unusual state of affairs in this case came about in the following manner. On July 1,
1981, Chapter 402 went into effect.
2
The new law significantly restructured the manner in
which drugs would be scheduled as controlled substances under the act.
____________________

1
1981 Nev. Stats. ch. 402 1-39 at 734-750.

2
Section 38 of Chapter 402 specified that the act shall become effective upon passage and approval for the
purpose of authorizing the adoption of any appropriate regulations by the state board of pharmacy, and for all
other purposes on July 1, 1981.
which drugs would be scheduled as controlled substances under the act. Prior to the 1981
amendment, those drugs which were deemed to constitute controlled substances were
specifically set out by statute. Controlled substance was defined in NRS 453.041 as any
drug, substance or immediate precursor in NRS 453.161 to 453.206. Each statutory
schedule contained a list of drugs classified according to the medical efficacy of the drug and
the dangers present by its abuse. Those substances which presented a high potential for abuse
and had little or no accepted medical usefulness were listed in NRS 453.161 as Schedule I
drugs, while those drugs which presented a low potential for abuse with limited psychological
or physical dependence and had a currently accepted medical use were listed in NRS 453.201
as Schedule V drugs. The imposition of criminal penalties for violating the various provisions
of the Uniform Controlled Substances Act were dependent upon the schedule under which the
particular drug was classified. The higher the drug's potential for abuse, the more severe was
the penalty.
Aside from the schedules of drugs set out by statute, NRS 453.146 expressly authorized
the state pharmacy board to administer the provisions of NRS 453.011 to 453.551, inclusive,
and . . . add substances to or delete or reschedule all substances enumerated in the schedules
in [NRS 453.161 to 453.201] by regulation.
In July of 1981, NRS Chapter 402 went into effect. It is the stated intention of the
amended law to repeal the existing statutory schedules of controlled substances found in NRS
453.161 through 453.201, inclusive, and to supplant them with new Schedules I to V. The
apparent intent of the legislature was to relegate the classification of controlled substances
exclusively to the pharmacy board, thereby assuring a constant source of currency to the
schedules of controlled substances.
It was not until March of 1982 that the pharmacy board eventually met and voted on new
regulations delineating the schedules of controlled substances. By and large the new
administrative schedules mirrored the previous statutory schedules. The administrative
schedules did not go into effect until June 25, 1982. Nev. Admin. Code 453.510-453.550.
During the period between the amendatory repeal of the statutory schedules and the
publication of the administrative schedules, the two petitioners were arrested for crimes
involving controlled substances.
Yusuf Luqman was arrested on March 31, 1982 and charged on two counts with violating
provisions of the Uniform Controlled Substance Act. In the first count, Luqman is charged
under NRS 453.337 with possession of and the intent to sell heroin. In count two, Luqman is
charged under NRS 453.336 with unlawful possession of marijuana.
two, Luqman is charged under NRS 453.336 with unlawful possession of marijuana. Sharon
Kay Lingle was arrested in February of 1982 pursuant to an undercover narcotics operation
and charged under NRS 453.321 with the unlawful sale of LSD.
In the proceedings below, the petitioners successfully prevailed on the issues now before
this court. We reverse.
Delegation of Authority to Pharmacy Board
The Uniform Controlled Substances Act (UCSA), first enacted in 1971 by the Nevada
Legislature, authorizes the state pharmacy board to classify drugs into various schedules
according to the drug's propensity for harm and abuse. Since the scheduling of drugs
determines the penalties which may result from violation of any of the provisions of the
UCSA, it is argued in Luqman's petition for habeas corpus that the act impermissibly
delegates legislative authority to an administrative agency.
[Headnotes 1-5]
It is well settled in Nevada that the power to define what conduct constitutes a crime lies
exclusively within the power and authority of the legislature. Schmidt v. State, 94 Nev. 665,
584 P.2d 695 (1978); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975); Egan v.
Sheriff, 88 Nev. 611, 503 P.2d 16 (1972). As such, the legislative powers may not be
delegated to another branch of government. Nev. Const. art. 3, 1. See State ex rel. Bull v.
Snodgrass, 4 Nev. 524 (1869). Although the legislature may not delegate its power to
legislate, it may delegate the power to determine the facts or state of things upon which the
law makes its own operations depend. Ex rel. Ginocchio v. Shaughnessy, 47 Nev. 129, 217
P.581 (1923); see also Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935); Field v.
Clark, 143 U.S. 649, 694 (1892). Thus, the legislature can make the application or operation
of a statute complete within itself dependent upon the existence of certain facts or conditions,
the ascertainment of which is left to the administrative agency. Telford v. Gainesville, 65
S.E.2d 246 (Ga. 1951). In doing so the legislature vests the agency with mere fact finding
authority and not the authority to legislate. Ex rel. Ginocchio v. Shaughnessy, above. The
agency is only authorized to determine the facts which will make the statute effective.
Montoya v. O'Toole, 610 P.2d 190 (N.M. 1980); State v. King, 257 N.W.2d 693 (Minn.
1977); People v. Uriel, 255 N.W.2d 788 (Mich.Ct.App. 1977); State v. Kellogg, 568 P.2d 514
(Idaho 1977); see generally 1 Am.Jur2d Administrative Law, 123 (1962). Such authority
will be upheld as constitutional so long as suitable standards are established by the legislature
for the agency's use of its power. These standards must be sufficient to guide the agency with
respect to the purpose of the law and the power authorized.
power authorized. Egan v. Sheriff, above; No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278,
429 P.2d 66 (1967). Sufficient legislative standards are required in order to assure that the
agency will neither act capriciously nor arbitrarily. See United States v. Pastor, 557 F.2d 930
(2d Cir. 1977).
[Headnote 6]
In the case at hand, although NRS Chapter 402 purported to repeal the statutory schedules,
the act retained both the general and specific guidelines listing various factors which are to be
taken into account by the pharmacy board when scheduling drugs as well as delineating the
requirements by which a drug is classified in an appropriate schedule.
3
The board is thus
placed into the role of a fact finder. It is the duty of the board to make findings as to the
medical propriety of a drug and its potential for abuse. These findings are accordingly
interpreted on the basis of the particular guidelines set forth for each schedule by the
legislature. Although the standards for classifying drugs into specific schedules are phrased in
general terms, they are sufficient to provide guidance to the board and prevent arbitrary
listings. Since the penalties for violating any of the provisions of the act have been
established by the legislature, the board has merely been delegated the duty of applying its
findings to the legislative scheme. The board's role as a fact finder is thus not an
unconstitutional delegation of legislative authority.
Vagueness of the Uniform Controlled Substances Act
The petitions for habeas corpus filed on behalf of Luqman and Lingle challenge the UCSA
as unconstitutionally vague and ambiguous for failing to provide adequate notice of that
conduct which is illegal under its provisions. The petitioners argue that the UCSA does not
inform an individual of the location of the schedules and therefore provides inadequate notice
of the conduct proscribed.
[Headnotes 7-9]
It should be noted at the outset that statutes should be construed, if reasonably possible, so
as to be in harmony with the constitution. State of Nevada v. Glusman, 98 Nev. 412, 651 P.2d
639 (1982), appeal dismissed, 459 U.S. 1192 (1983); Milchem Inc. v. District Court, 84 Nev.
541, 445 P.2d 148 (1968). To this
____________________

3
For example, after taking into consideration the factors listed in NRS 453.146(2) the board may classify a
drug in Schedule I if it finds that the substance: (1) has a high potential for abuse and (2) has no accepted
medical use in treatment or lacks accepted safety for use in treatment with medical supervision. NRS 453.166.
On the other hand, a drug will be listed in Schedule II even though there is a high potential for extent, an act
is presumed abuse if there is an accepted medical use for the substance. NRS 453.176.
extent, an act is presumed to be constitutional and will be upheld unless the violation of
constitutional principles is clearly apparent. Sheriff v. Martin, 99 Nev. 336, 662 P.2d 634
(1983); State of Nevada v. Glusman, above; Ottenheimer v. Real Estate Division, 97 Nev.
314, 629 P.2d 1203 (1981); County of Clark v. City of Las Vegas, 97 Nev. 260, 628 P.2d
1120 (1981). Where the intention of the legislature is clear, it is the duty of the court to give
effect to such intention and to construe the language of the statute to effectuate, rather than to
nullify, its manifest purpose. Sheriff v. Martin, above; Woofter v. O'Donnell, 91 Nev. 756,
542 P.2d 1396 (1975). In light of these principles, we turn to the case at hand.
[Headnotes 10, 11]
It is basic to the principles of the due process clause of the fourteenth amendment that an
individual may not be held criminally responsible for conduct which he could not reasonably
understand to be proscribed. Sheriff v. Martin, 99 Nev. at 339, 662 P.2d at 636 (quoting
United States v. Harriss, 347 U.S. 612 (1954)). The law must afford a person of ordinary
intelligence the opportunity to know what is prohibited so that he may act accordingly, and it
must also provide explicit standards of application in order to avoid arbitrary and
discriminatory enforcement. Sheriff v. Martin, above; see also Smith v. Goguen, 415 U.S.
566 (1974). [A] statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law. Connally v. General
Construction Co., 269 U.S. 385, 391 (1926), cited by this court in Sheriff v. Martin, 99 Nev.
336, 662 P.2d 634 (1983); State of Nevada v. Glusman, 98 Nev. 412, 651 P.2d 639 (1982),
appeal dismissed, 459 U.S. 1192 (1983); Wilmeth v. State, 96 Nev. 403, 610 P.2d 735
(1980); In re Laiolo, 83 Nev. 186, 426 P.2d 726 (1967).
[Headnote 12]
Although the principle of definiteness is given strict application in penal statutes, Sheriff
v. Smith, 91 Nev. 729, 542 P.2d 440 (1975), it does not require impossible standards of
specificity. Sheriff v. Martin, above; Wilmeth v. State, above. The test for granting sufficient
warning as to proscribed conduct will be met if there are well settled and ordinarily
understood meanings for the words employed when viewed in the context of the entire
statutory provision. Woofter v. O'Donnell, 91 Nev. 756, 762, 542 P.2d 1396, 1400 (1975).
Under the 1981 amendment controlled substance is defined as a drug, substance or
immediate precursor listed in Schedules I to V, inclusive."
I to V, inclusive. NRS 453.041. The act does not state where Schedules I to V are located.
There is no direct reference to any particular administrative regulation or statutory subsection.
This, however, does not by itself affect the constitutionality of the statute.
In a factually similar case, the Washington Supreme Court held that the failure of a statute
to indicate which agency is delegated the authority to enumerate a list of drugs or substances
within the provisions of a statute renders the law unconstitutionally vague. State v. Jordan,
588 P.2d 1155 (Wash. 1979). Jordan involved the validity of the state's Legend Drugs Act.
Since the act did not specify which particular agency was authorized to classify drugs, the
court held that the statute which created the crime provided no parameters of the conduct
proscribed and was thus unconstitutional. The court additionally noted that the regulations
which in fact listed the Legend Drugs failed to refer back to the statute which made those
drugs illegal.
[Headnote 13]
In the present situation, the holding and rationale of Jordan, however, do not apply.
Although the statutory definition of controlled substance fails specifically to indicate where
the schedules of controlled substances are located,
4
the court may, in determining the
vagueness of a statute, consider an entire statutory scheme. Woofter v. O'Donnell, 91 Nev.
756, 542 P.2d 1396 (1975). When viewing the UCSA in toto, it is apparent that the schedules
of controlled substances are to be found in the pharmacy board regulations. Delineating the
qualifications for a drug classified in Schedule I, NRS 453.166 states: The board shall place
a substance in schedule I if. . . . (Emphasis added). The statutory guidelines for Schedules II
through V similarly indicate that it is [t]he board that is authorized to schedule drugs. NRS
453.176-453.206. Board is defined in NRS 453.031 as the state board of pharmacy.
Additionally, within the regulations of the state board of pharmacy, those provisions
applicable to the UCSA are entitled, Chapter 453, Controlled Substances. Nev. Admin.
Code 453.510-453.550. Therefore, it is apparent when reading the UCSA that if one
desires to determine whether a particular drug is defined as a controlled substance, he or she
need only check the pharmacy board regulations.
[Headnote 14]
Since the UCSA clearly states that the pharmacy board is to schedule drugs and since the
schedules are set forth in the Nevada Administrative Code, the UCSA is sufficiently definite
in its scheme to delegate to the pharmacy board the authority to determine those facts
which will make the law operative.
____________________

4
NRS 453.041.
scheme to delegate to the pharmacy board the authority to determine those facts which will
make the law operative. Therefore, the Uniform Controlled Substances Act is not
unconstitutionally vague.
Failure of Timely Enactment of Administrative Schedules
[Headnote 15]
The question remains as to whether the petitioners in this case can be charged with a crime
involving a controlled substance when the task of listing and defining such substances had
not been carried out by the agency at the time the alleged crimes were committed. We
approach this issue with the enjoinder that effect must be given to the clear intent of the
legislature when construing statutory language. Sheriff v. Martin, 99 Nev. 336, 662 P.2d 634
(1983). If we were to accept respondents' position, the result would entail a substantial hiatus
in prosecutable crimes involving controlled substances in Nevada. It would also require us to
assume that the legislature intended to risk the continuing validity of the UCSA on the
prospect of timely action by the pharmacy board. In either instance, this court would be
construing the statute to effectuate a nullification of its manifest purpose. This we cannot do.
While it is conceded that penal statutes must be strictly construed, Ex Parte Davis, 33 Nev.
309, 110 P. 1131 (1910), such a construction does not require a court to emasculate its
purpose. Pease v. Taylor, 88 Nev. 287, 496 P.2d 757 (1972). As we have previously stated,
it is always the first great object of the courts in interpreting statutes, to place such
construction upon them as will carry out the manifest purpose of the legislature, and this has
been done in opposition to the very words of an act. Thomas v. State, 88 Nev. 382, 384, 498
P.2d 1314 (1972) (quoting Gibson v. Mason, 5 Nev. 283, 311 (1869)).
[Headnote 16]
Accordingly, we hold that the legislature never intended to decriminalize, even
temporarily, conduct proscribed by the UCSA. Rather, it was the intent of the legislature to
invalidate the legislative schedules upon the adoption of new, administrative schedules by the
pharmacy board.
The Montana Supreme Court was faced with a similar situation in State v. Meader, 601
P.2d 386 (Mont. 1979), where the Board of Pharmacists and Department of Health failed to
revise and republish the schedule of dangerous drugs as required by the Montana Dangerous
Drugs Act. In sustaining the continuing validity of the act, the court held:
the Dangerous Drug Act does not indicate that the legislature intended the Board of
Pharmacists to have the power, by inaction, to decriminalize the possession of all type
of drugs and substances.
inaction, to decriminalize the possession of all type of drugs and substances. Rather, we
find that the legislature intended the original five schedules to be effective until such
time as the Board and the Department took steps to carry out their statutory duties to
revise and republish.
601 P.2d at 389.
[Headnote 17]
Accordingly, we hold that the controlled substances specified in former schedules NRS
453.161 through 453.201 notwithstanding use of the word repeal, continued in effect and
were automatically incorporated into the new corresponding schedules when the 1981
amendment took effect. Although the new schedules were not officially published for
approximately one year after the effective date of the amendment, the former schedules,
which were published and available to all who were interested, constituted the intended, legal
equivalent of the new schedules until such time as the board adopted and published the latter
schedules.
Our determination in support of the legislative purpose of the amendment can hardly be
viewed as prejudicial to respondents. The controlled substances involved in these appeals are
heroin, LSD, and marijuana.
5
It has long been common knowledge in Nevada that the
possession and sale of these drugs constitute criminal acts. Luqman and Lingle will not be
heard to argue in this court that there was a moratorium on prosecution of heroin, LSD, and
marijuana offenses between July 1, 1981 and June of 1982. We perceive no consequence of
unfairness in the stated construction of the 1981 amendment.
For the reasons specified above, the orders issued by the district court granting pretrial
habeas corpus relief are reversed.
____________________

5
As a matter of interest, the charges against Luqman included possession of marijuana. Marijuana is
specifically defined in NRS 453.096. Although marijuana is not defined as a controlled substance, NRS
453.336(3) prescribes the punishment for possession of less than one ounce of marijuana. Therefore, the failure
of the pharmacy board to schedule controlled substances did not, in any event, affect this charge against
Luqman.
____________
101 Nev. 159, 159 (1985) Summitt v. State
VERNON SUMMITT, Appellant, v. THE
No. 14022
March 26, 1985 697 P.2d 1374
Appeal from judgment of conviction of two counts of sexual assault. Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
Defendant was convicted in the district court of two counts of sexual assault, and he
appealed. The Supreme Court, Mowbray, J., held that testimony centered around a prior
similar sexual experience of six year old victim was admissible, and its exclusion was
reversible error requiring new trial, where sole and limited purpose of testimony was to
challenge victim's credibility by dispelling any inference which jury might have drawn that a
six year old child would be unable to describe occurrences in her testimony unless they had in
fact taken place.
Steffen, J., dissented.
Morgan D. Harris, Public Defender, and E. Lee Thomson, Deputy Public Defender, Clark
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law; Witnesses.
The right to confront and cross-examine witnesses may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process. U.S.C.A.Const. Amends. 6, 14.
Denial or significant diminution of rights to confrontation and cross-examination calls into question the
ultimate integrity of the factfinding process and requires that the competing interest be closely examined.
3. Rape.
A defendant, in a prosecution in which the rape victim shield law is applicable, must be given an
opportunity upon motion to demonstrate that due process requires the admission of evidence concerning
the victim's past sexual conduct because its probative value in the context of the case outweighs its
prejudicial effect on the victim. NRS 50.090.
Determination as to whether, in a prosecution in which the rape victim shield law is applicable, due
process requires admission of evidence concerning the victim's past sexual conduct should focus
particularly upon potential prejudice to the truthfinding process itself, i.e., whether the introduction of the
victim's past sexual conduct may confuse issues, mislead jury, or cause jury to decide case on an improper
or emotional basis. NRS 50.090.
5. Witnesses.
Testimony which centered around a prior similar sexual experience of the six year old victim was
admissible in sexual assault prosecution for sole and limited purpose of challenging victim's credibility by
dispelling any inference which jury might have drawn that a six year old child would be unable to describe
occurrences in her testimony unless they had in fact taken place. NRS 50.090
Excluding impeachment testimony concerning prior sexual experience of six year old victim of sexual
assault was reversible error, requiring new trial, where remaining evidence of guilt was not strong, and
accuracy and truthfulness of victim's testimony were key elements in case against defendant. NRS
50.090.
OPINION
By the Court, Mowbray, J.:
A jury found appellant Vernon Summitt guilty of two counts of sexual assault. He seeks
reversal of his judgment of conviction asserting several assignments of error, only one of
which we find to have merit: that the district judge erred in excluding testimony centered
about a prior similar sexual experience of the victim. Accordingly, we reverse and remand the
case for a new trial.
A grand jury indicted Summitt for three counts of sexual assault committed on a six year
old child. A count charging sexual intercourse was dismissed before the trial because of the
state's failure to preserve evidence. Summitt was tried and convicted of the remaining counts
of cunnilingus and fellatio.
At the jury trial Summitt sought to introduce evidence of a prior sexual experience of the
victim which included intercourse, fellatio and the fondling of the victim's genitalia. The prior
assault had occurred two years before the crime in issue, in the same trailer park, and
involved the same victim and her nine year old girl friend, who was also a witness in the
instant case. Summitt offered the testimony to show that the young victim had had prior
independent knowledge of similar acts which constituted the basis for the present charge.
The district judge denied Summitt's offer on the ground that the rape victim shield law,
Nevada Revised Statute section 50.090
1
, barred the admission of such evidence. We turn to
the construction of the statute In 1977 Nevada joined forty-five states and the federal
government in passing a "rape shield" statute, limiting inquiry into the sexual history of a
complaining witness in a rape or sexual assault case.
____________________

1
NRS 50.090 states in pertinent part:
In any prosecution for sexual assault . . . the accused may not present evidence of any previous sexual
conduct of the victim of the crime to challenge the victim's credibility as a witness unless the prosecutor
has presented evidence or the victim has testified concerning such conduct, or the absence of such
conduct, in which case the scope of the accused's cross-examination of the victim or rebuttal shall be
limited to the evidence presented by the prosecutor or victim.
In 1977 Nevada joined forty-five states and the federal government in passing a rape
shield statute, limiting inquiry into the sexual history of a complaining witness in a rape or
sexual assault case. See J. A. Tanford and A. J. Bocchino, Rape Victim Shield Laws and the
Sixth Amendment, 128 U.Pa.L.Rev. 544, 544 (1980).
Such laws have generally been designed to reverse the common law rule applicable in rape
cases, that use of evidence of a female complainant's general reputation for morality and
chastity was admissible to infer consent and also to attack credibility generally. Thus, for
example, it had been held: It is a matter of common knowledge that the bad character of a
man for chastity does not even in the remotest degree affect his character for truth, when
based upon that alone, while it does that of a woman. State v. Sibley, 33 S.W. 167, 171 (Mo.
1895), quoted in State v. Brown, 636 S.W.2d 929, 933 n. 3 (Mo. 1982), cert. denied sub
nom., Brown v. Missouri, 103 S.Ct. 1207 (1983). Such statutes as Nevada's have been
described as directed at the misuse of prior sexual conduct evidence based on this antiquated
and obviously illogical premise. State v. Hudlow, 659 P.2d 514, 519 (Wash. 1983). See also
People v. McKenna, 585 P.2d 275, 278 (Colo. 1978). An additional purpose of such statutes
is to protect rape victims from degrading and embarrassing disclosure of intimate details
about their private lives.' 124 Cong. Rec. at H 11945 (1978), quoted in Doe v. United States,
666 F.2d 43, 45 (4th Cir. 1981). Finally, [t]he restrictions placed on the admissibility of
certain evidence by the rape-shield laws will, it was hoped, encouraged rape victims to come
forward and report the crimes and testify in court protected from unnecessary indignities and
needless probing into their respective sexual histories. State v. Lemon, 456 A.2d 261, 264
(R.I. 1983).
In construing Nevada's shield law, we must be mindful of these legislative purposes.
Equally important is the rule that [a] statute should, if it reasonably can, be so construed as
to avoid any conflict with the constitution. State v. Woodbury, 17 Nev. 337, 356, 30 P.
1006, 1012 (1883). See also Anaya v. State, 96 Nev. 119, 606 P.2d 156 (1980); Milchem, Inc.
v. District Court, 84 Nev. 541, 445 P.2d 148 (1968).
2
[Headnotes 1, 2]
____________________

2
Although counsel has not raised the constitutional issue on appeal, the issue of statutory construction has
been preserved. In view of the fundamental importance of the confrontation clause to a defendant's right to a fair
trial and the fact that the appellant-defendant did preserve the question of the proper application of the statute for
our consideration, we shall consider the constitutional issue. See Desert Chrysler-Plymouth v. Chrysler Corp., 95
Nev. 640, 600 P.2d 1189 (1979), cert. denied, 445 U.S. 964 (1980); Dias v. State, 95 Nev. 710, 601 P.2d 706
(1979); Davies v. State, 95 Nev. 553, 598 P.2d 636 (1979).
[Headnotes 1, 2]
A defendant's rights to present witnesses in his own behalf, to confront and to
cross-examine the witnesses against him are fundamental rights, secured by the Sixth
Amendment, and applicable to the states through the Fourteenth Amendment. Chambers v.
Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967); Pointer v.
Texas, 380 U.S. 400 (1965). The United States Supreme Court has held that the right to
confront and cross-examine witnesses may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process. Chambers v. Mississippi, 410 U.S. at 295.
But, the Court has cautioned, its denial or significant diminution calls into question the
ultimate integrity of the fact-finding process' and requires that the competing interest be
closely examined. Id.
Thus in Davis v. Alaska, 415 U.S. 308, 320 (1974), the court held that the legitimate
interest of the state in protecting from public scrutiny the juvenile record of a prosecution
witness could not require yielding of so vital a constitutional right as the effective
cross-examination for bias of an adverse witness. The court examined the particular interests
of the state and the defendant, noting that defense counsel made it clear that he would not
introduce the juvenile record as a general impeachment of [the witness's] character as a
truthful person, but rather to show specifically that the witness was on probation for a
similar crime, which may have provided a motive for shifting blame to the defendant. Id. at
311. Similarly in this case, we have a defendant who seeks to introduce evidence which it is
the general policy of the state to protect, but which the defendant seeks to use for the sole and
limited purpose of challenging the witness's credibility by dispelling an inference which the
jury may well draw otherwise from the circumstances, that a six year old child would be
unable to describe the occurrences in her testimony unless they had in fact taken place.
Other courts confronted with the necessity of accommodating the competing interests of
complaining witnesses and defendants in such cases have concluded that rape shield statutes
should be construed and applied so as to uphold the constitutional rights of defendants, while
creating the least possible interference with the legislative purpose reflected in the statutes.
See, esp., Bell v. Harrison, 670 F.2d 656 (6th Cr. 1982) (Tennessee statute); State v. Blue,
592 P.2d 897 (Kan. 1979); Commonwealth v. Joyce, 415 N.E.2d 181 (Mass. 1981); State v.
Howard, 426 A.2d 457 (N.H. 1981); State v. Jalo, 557 P.2d 1359 (Or.App. 1976); Shockley
v. State, 585 S.W.2d 645 (Tenn.Crim.App. 1978); Winfield v. Commonwealth, 301 S.E.2d
15 (Va. 1983); State v. Hudlow, supra, 659 P.2d 514 (Wash. 1983).
[Headnote 3]
The holdings of two of these state court decisions apply to the case at bar. In State v.
Howard, supra, the Supreme Court of New Hampshire considered a statute which purported
to preclude any evidence of a victim's consensual sexual activity with persons other than a
defendant. In that case, as in this one, the defendant sought to introduce such evidence in
order to challenge the young complaining witness's credibility, by showing that she had had
other experiences which could explain the source of her knowledge of the sexual activity she
described in her testimony. The court determined that in order to uphold the constitutionality
of the statute, it would require that a defendant in a prosecution to which the shield law was
applicable must, upon motion, be given an opportunity to demonstrate that due process
requires the admission of such evidence because the probative value in the context of that
particular case outweighs its prejudicial effect on the prosecutrix. Such motion should, of
course, be made out of the presence of the jury. 426 A.2d at 461. We are persuaded that this
procedure would provide a proper means of deciding, on a case by case basis, whether such
evidence should be admitted. See Anaya v. State, supra, 96 Nev. 119, 606 P.2d 156 (1980).
[Headnote 4]
We agree with the reasoning of the Supreme Court of Washington that in following this
procedure, the trial court must undertake to balance the probative value of the evidence
against its prejudicial effect, see NRS 48.035(1)
3
, and that the inquiry should particularly
focus upon potential prejudice to the truthfinding process itself, i.e., whether the
introduction of the victim's past sexual conduct may confuse the issues, mislead the jury, or
cause the jury to decide the case on an improper or emotional basis. State v. Hudlow, supra,
659 P.2d at 521.
[Headnote 5]
In the instant case the defendant does not seek to impeach the credibility of the
complaining witness by a general allegation of unchastity. Rather, the specific evidence was
offered to show knowledge of such acts rather than lack of chastity.
4
We agree with the
ruling of the Supreme Court of New Hampshire in State v. Howard, supra, 426 A.2d at
462:
____________________

3
NRS 48.035 (1) reads:
Although relevant, evidence is not admissible if its probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues or of misleading the jury.

4
In the affidavit supporting appellant-defendant's motion for a new trial in the proceedings below, it was
asserted that Juror No. 1, Richard L. Linton, after the verdict was rendered, stated to both counsel for the state
and the appellant that during the jury's deliberations the question was posed among the jurors why a girl of such
a young age would know of such sexual acts unless they had, in fact, occurred as alleged.
with the ruling of the Supreme Court of New Hampshire in State v. Howard, supra, 426 A.2d
at 462:
We believe that the average juror would perceive the average twelve-year-old girl as a
sexual innocent. Therefore, it is probable that jurors would believe that the sexual
experience she describes must have occurred in connection with the incident being
prosecuted; otherwise, she could not have described it. However, if statutory rape
victims have had other sexual experiences, it would be possible for them to provide
detailed, realistic testimony concerning an incident that may never have happened. To
preclude a defendant from presenting such evidence to the jury, if it is otherwise
admissible, would be obvious error. Accordingly, a defendant must be afforded the
opportunity to show, by specific incidents of sexual conduct, that the prosecutrix has
the experience and ability to contrive a statutory rape charge against him.
We also agree, however, that [i]n the exercise of its sound discretion, the trial court should
be mindful of the important policy considerations underlying the rape-shield statute, and
accordingly should limit the admission of evidence of specific instances of the complainant's
sexual conduct to the extent that it is possible without unduly infringing upon the defendant's
constitutional right to confrontation. Id.
[Headnote 6]
Since the remaining evidence of guilt was not strong, and since [t]he accuracy and
truthfulness of [the complaining witness's] testimony were key elements in . . . the case
against [defendant], Davis v. Alaska, supra, 415 U.S. at 317, we reverse and remand for
further proceedings consistent with this opinion.
Springer, C. J., and Gunderson, J., concur.
Steffen, J., concurring in part and dissenting in part.
I concur in result with my brethren on the fellatio count but dissent as to the count
involving cunnilingus.
I agree that the district court committed reversible error in excluding reference to a prior
incident involving the same child-victim. The purposes of the rape victim shield law (NRS
50.090) would not have been frustrated by the terse admission of facts concerning the earlier
experience since the child, then age four, was clearly a victim whose reputation would have
been unaffected by such a disclosure. The admission of the prior occurrence would permit the
defendant to disabuse jurors who might conclude that the child's familiarity with fellatio
could not have existed absent the actuality of the ordeal described at trial by the child.
the child. Evidence of the prior incident would not relate to the sexual conduct of the child,
but rather her experience as a tender-aged victim of a sexual assault.
The error upon which we must reverse the fellatio conviction does not, in my opinion,
similarly affect the cunnilingus count. The majority emphasizes that the trial court should
allow inquiry into the prior incident only to the extent of specific instances of the
complainant's sexual conduct. (Emphasis added.) It is especially significant that there is no
evidence in the record that the prior violation of the child included an act of cunnilingus.
Moreover, there is an equal absence of evidence that the child was even questioned about
cunnilingus in connection with the prior incident. We are thus faced with a reversal by this
Court of the felony count of cunnilingus based upon a non-event, i.e., the introduction of the
then four-year-old victim to cunnilingus as a result of the prior incident.
The majority relies on State v. Howard, 426 A.2d 457 (N.H. 1981), as authority for
reversal of defendant's conviction on both counts. Unfortunately, State v. Howard does not
support the reversal of the cunnilingus conviction. The Supreme Court of New Hampshire, as
quoted by the majority, states that a defendant must be afforded the opportunity to show, by
specific incidents of sexual conduct, that the prosecutrix has the experience and ability to
contrive a statutory rape charge against him (Emphasis added.) Aside from the fact that State
v. Howard involved a twelve-year-old complainant with an allegedly extensive prior history
of consensual sexual conduct as opposed to the six-year-old prosecutrix in the instant case
whose only history was as a four-year-old victim of sexual assault, it must be emphasized
that there is no showing that the child-victim in this case had the experience and ability to
contrive a charge of cunnilingus against the defendant stemming from the prior incident.
Another consequence of the majority ruling is that it actually violates the spirit of the rape
shield law by accommodating a general attack on the credibility of the child-victim. In effect,
the majority holds that the child's prior experience as a four-year-old victim of sexual assault
in the form of fellatio may be admitted as a basis for inferring that she contrived a charge of
cunnilingus against Summitt. We are thus propelled into the concept that sexual history in
general, as opposed to specific instances of sexual experience in particular, may be
introduced to attack the credibility of a prosecutrix. It is clear that such a proposition
substantially expands both the holding and the ratio decidendi of State v. Howard, supra. It
also appears, given the tender age of the prosecutrix in the instant case, that the proposition
created by this decision would apply in virtually all instances involving a child-victim whose
sexual "history" is limited to an experience of sexual assault occurring at age four or
above.
child-victim whose sexual history is limited to an experience of sexual assault occurring at
age four or above. I am simply unable to reconcile the majority ruling with the necessity of
accommodating the competing interests of complaining witnesses and defendants by
construing and applying the rape shield law so as to uphold the constitutional rights of
defendants, while creating the least possible interference with the legislative purpose reflected
in the statutes. I therefore conclude that the majority position is in conflict with the basic
purpose and spirit of Nevada's rape shield statute.
There is an additional reason why I believe this Court should be particularly sensitive to
the peculiar circumstances of the instant case in relation to the rape shield law. Specifically,
Nevada's rape shield statute, NRS 50.090, applies to victims who have a prior history of
sexual conduct. The word conduct imports active behavior, and does not comprehend mere
experience forced on a tender-aged child by means of a felonious sexual assault. I would
therefore conclude that the beneficial concerns and purposes of the rape shield legislation
would have even stronger application to a child-victim of sexual assault who has no history of
personal sexual conduct. It is one thing to permit the introduction of specific instances of
actual sexual experiences forced upon a child as a victim in order to disabuse jurors of the
inference that a child's knowledge of such experiences must have necessarily resulted from
the alleged acts of the defendant. It is quite another proposition to permit the introduction of
evidence of one type of sexual assault previously suffered by the child-victim as a basis for
inferring an ability on the part of the child-victim to contrive a different sexual crime against
the defendant. The former proposition achieves fairness to the defendant and respect for the
youthful victim; the latter provides an advantage to the defendant which is unfair to the state
and which diminishes or eliminates the intended statutory protection and respect for the
prosecutrix.
My position in dissent is reinforced by the failure of defense counsel to preserve as an
issue on appeal the refusal of the district court to admit evidence of the prior incident as it
relates to the cunnilingus conviction. Such failure was both understandable and justifiable
since there was no evidence upon which to create such an issue.
1
Furthermore, in defendant's
motion for a new trial the instant issue was directed to the fellatio count. I therefore conclude
that this Court should defer to the time-honored rule that an issue not raised in the trial
court will not be entertained on appeal.
____________________

1
Defense counsel did, however, properly object to the trial court's refusal to allow evidence of the prior
incident as it related to the fellatio count. In that regard, counsel unsuccessfully proffered the following
instruction to the jury:
It is improper for you to infer that . . . [the child-victim] would have
conclude that this Court should defer to the time-honored rule that an issue not raised in the
trial court will not be entertained on appeal. Merica v. State, 87 Nev. 457, 488 P.2d 1161
(1971); Kelly v. State, 76 Nev. 65, 348 P.2d 966 (1960). Actually, in reversing the
cunnilingus conviction, this Court not only disregards the rule precluding the consideration of
issues raised initially on appealit extends itself to create, sua sponte, a non-constitutional
issue upon which relief is granted without benefit of legal precedent or authority.
These types of cases are extremely difficult. I am keenly aware of the concern of my
brethren in the majority for both the rights of the defendant and the ordeal of the young
prosecutrix upon retrial. Moreover, I respect the sense of the majority that I am drawing too
thin a line in my dissenting position. I must nevertheless conclude, for reasons noted above,
that defendant's conviction on the cunnilingus count should be affirmed. Accordingly, I
respectfully dissent.
____________________
known of the act of fellatio: that being the insertion of the penis into the mouth, only if the actions she testified to
had in fact occurred.
Additionally, in arguing to the court below, defense counsel said:
But the fact is that there are normal people in this community, normal people that get called as jurors that sit
up there and in their growing up experiences at six years old, did not know of these type [sic] of sexual acts,
and maybe cunnilingus was not mentioned in that prior act, but fellatio definitely was, and fellatio is an issue
in this case.
____________
101 Nev. 167, 167 (1985) Smith v. State
THOMAS GEORGE SMITH, Appellant, v. THE
No. 13536
March 26, 1985 697 P.2d 113
Appeal from judgment of conviction of first degree kidnapping with the use of a deadly
weapon, attempted murder with the use of a deadly weapon, and sexual assault, Second
Judicial District Court, Washoe County; Peter I. Breen, Judge.
Defendant was convicted in the district court of first degree kidnapping with use of a
deadly weapon, attempted murder with use of a deadly weapon, and sexual assault, and he
appealed. The Supreme Court held that defendant's criminal acts in Nevada were committed
in partial execution of his plan, and thus, Nevada had jurisdiction to prosecute defendant
even though the sexual assault and attempted murder culminated in California.
Affirmed.
101 Nev. 167, 168 (1985) Smith v. State
David Parraguirre, Public Defender, and Jane McKenna, Deputy Public Defender,
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and John
Kadlic, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Mere fact that offense may have actually culminated in another state was not dispositive of jurisdictional
question; Supreme Court had to review facts of case to determine if defendant committed any acts in
Nevada in execution or part execution of his intended crimes. NRS 171.020.
2. Criminal Law.
Defendant's criminal acts in Nevada were committed in partial execution of his plan, formulated in
Nevada at time he first kidnapped his victim and forced her into his van, to commit sexual assault and
murder, and thus, Nevada had jurisdiction to prosecute defendant on counts of first degree kidnapping with
use of deadly weapon, attempted murder with use of deadly weapon, and sexual assault, where defendant
kidnapped victim from her home in Nevada, forced her into his van, and then transported her
approximately ten miles across Nevada state line into California and, while in California, sexually assaulted
the victim, attempted to murder her, and ultimately abandoned her. NRS 171.020.
OPINION
Per Curiam:
1

Following a trial by jury, appellant was convicted of one count each of first degree
kidnapping with the use of a deadly weapon, attempted murder with the use of a deadly
weapon, and sexual assault. This appeal ensued. Appellant now contends, among other
things, that the State of Nevada did not have jurisdiction to prosecute him for the offense of
sexual assault and attempted murder because these offenses were committed outside this
state.
2
For the reasons set forth below, we disagree with this contention.
[Headnote 1]
The relevant Nevada statute concerning this state's jurisdiction to proceed against a
defendant in a criminal prosecution is NRS 171.020.
____________________

1
This appeal was previously dismissed on the merits in an unpublished order of this court. Upon motion of
the respondent, we have determined that our decision should be issued in a public opinion. Accordingly, we
hereby issue this opinion in place of our Order Dismissing Appeal filed December 17, 1984.

2
Appellant brought pretrial motions to dismiss the charges against him in both the justice's court and the
district court. Both courts denied these motions, concluding that Nevada did in fact have jurisdiction to
prosecute appellant for the offenses in question.
101 Nev. 167, 169 (1985) Smith v. State
to proceed against a defendant in a criminal prosecution is NRS 171.020. This statute
provides:
Whenever a person, with intent to commit a crime, does any act within this state in
execution or part execution of such intent, which culminates in the commission of a
crime, either within or without this state, such person is punishable for such crime in
this state in the same manner as if the same had been committed entirely within this
state.
Accordingly, the mere fact that an offense may have actually culminated in another state is
not dispositive of the jurisdictional question, and we must therefore review the facts of this
case to determine if appellant committed any acts in Nevada in execution or part execution
of his intended crimes.
[Headnote 2]
Our review of the record reveals that appellant first kidnapped his victim from her home in
Nevada, forced her into his van, and then transported her approximately ten miles across the
Nevada state line into California. While in California, he sexually assaulted the victim,
attempted to murder her, and ultimately abandoned her.
It appears clear from appellant's conduct, viewed as a whole, that appellant formulated the
intent to commit a sexual assault and murder while in Nevada, at the time he first kidnapped
his victim and forced her into his van. Further, his actions in Nevada were themselves
criminal in nature and were a necessary and integral part of a larger crime plan to assault and
murder the victim. We therefore conclude that appellant's criminal acts in Nevada were
committed in partial execution of this plan and that Nevada had jurisdiction to prosecute
appellant for all of the crimes in question pursuant to NRS 171.020.
We recognize, however, that in Vincze v. Sheriff, 86 Nev. 474, 470 P.2d 427 (1970), we
indicated that when a crime culminates or is completed within another state, a defendant must
have performed acts within Nevada which constitute an actual attempt to commit the crime
before this state will have jurisdiction to prosecute the defendant for the crime. We also
recognize that by simply kidnapping the victim in Nevada and transporting her in his van,
appellant performed no act constituting an actual attempt to commit the crimes of sexual
assault or murder. See generally Vincze v. Sheriff, supra, 86 Nev. at 477, 470 P.2d at 429.
Nevertheless, we conclude that, in a case such as this, when a defendant commits criminal
acts in Nevada which are a substantial and integral part of an overall continuing crime plan,
and which are clearly in partial execution of the plan, this particular requirement of Vincze
is inapplicable. This conclusion is fully supported by the language used in NRS 171.020.
101 Nev. 167, 170 (1985) Smith v. State
Accordingly, there is no merit to appellant's contention that Nevada lacked jurisdiction to
prosecute him for the offenses of sexual assault and attempted murder. We have also
reviewed appellant's remaining contentions and have concluded that they are without merit.
Accordingly, the judgment of conviction is affirmed in all respects.
3

____________________

3
The Honorable C. Clifton Young, Justice, did not participate in the consideration of this appeal.
____________
101 Nev. 170, 170 (1985) Canfield v. Gill
RICK CANFIELD, Appellant, v. JACQUELINE
J. GILL, Respondent.
No. 15111
April 4, 1985 697 P.2d 476
Appeal from judgment for respondent, Third Judicial District Court, Churchill County;
Mario G. Recanzone, Judge.
Plaintiff brought suit for breach of alleged contract for sale of his business. The district
court rendered judgment for defendant, and plaintiff appealed. The Supreme Court held that
district court's finding that parties intended option contract, rather than contract for sale of
plaintiff's business, was not supported by substantial evidence.
Catherine L. Hansen Fallon; and Paul J. Malikowski, Carson City, for Appellant.
Diehl, Evans & Associates, Fallon, for Respondent.
Supreme Court will not hesitate to disturb verdict or decision where there is no substantial conflict in
evidence on any material point and verdict or decision is manifestly contrary to the evidence.
2. Contracts.
District court's finding that parties intended option contract, rather than contract for sale of plaintiff's
business, was not supported by substantial evidence, where defendant herself indicated that she thought she
was obligated to pay balance owed as specified in contract, regardless of how successful training period
was and that her reason for not buying business was her partner's opinion that they could operate same
service for half the cost without buying plaintiff's business.
3. Evidence.
Where contract did not appear to be ambiguous, parol evidence on intent of parties should not have been
admitted.
4. Contracts.
Option contract is neither a sale nor agreement to sell, but is simply a contract whereby owner of property
agrees to allow person to buy that property at fixed price within certain time period.
OPINION
Per Curiam:
This is an appeal from a judgment for respondent following a bench trial on appellant's
complaint for breach of contract. For the reasons stated below, we reverse.
On May 25, 1982, Canfield and Gill executed a document entitled Sales Agreement and
Deposit Receipt. On its face the document was a sales contract for the sale of Canfield's
business, The Lone Arranger, which specializes in silk and dry flower arrangements.
The document set forth a purchase price of $14,000, with a $500 deposit. The $13,500
balance was expressly due and payable no later than August 1, 1982. The sale of the business
included, among other things, six to eight weeks of floral training for Gill and her associates.
Subsequent to the execution of the contract, Canfield began training Gill and her
associates at the business. On or about June 11, 1982, Gill notified Canfield of her intention
to withdraw from the agreement. Canfield later resold the business for an amount
substantially lower than the $14,000 set forth in Gill's contract.
At trial the district court concluded that the May 25, 1982, Sales Agreement was
intended by the parties merely as an option to purchase the business. Accordingly, judgment
was entered in favor of respondent, Gill. The primary issue in this appeal by Canfield is
whether the parties intended a sales contract or an option contract.
[Headnotes 1-3]
This court will not hesitate to disturb a verdict or decision where there is no substantial
conflict in the evidence on any material point and the verdict or decision is manifestly
contrary to the evidence. Avery v. Gilliam, 97 Nev. 181, 625 P.2d 1166 (1981). Reviewing
the parol evidence and the document itself, we conclude that the district court's finding of an
option contract is not supported by substantial evidence.
1

____________________

1
The contract in this case does not appear to be ambiguous on its face. Therefore, parol evidence on the
intent of the parties should not have been admitted at trial. See Crank v. Nev. Indus. Comm'n., 100 Nev. 80, 675
P.2d 413 (1984). The trial transcript, however, reveals that parol evidence regarding intent was [Headnote 4]
An offered and admitted by both parties without objection. The failure to object to this evidence constitutes a
waiver. NRS 47.040(1)(a); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981).
[Headnote 4]
An option contract is neither a sale nor an agreement to sell. It is simply a contract
whereby the owner of property agrees to allow another person to buy that property at a fixed
price within a certain time period. Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 424 P.2d
101 (1967).
The testimony of Gill herself clearly indicates that she thought she was obligated to pay
the balance owed on August 1, 1982, as specified in the contract, regardless of how
successful the training period was. Gill further testified that her reason for not buying the
business was her partner's opinion that they could operate the same service for half the cost
without buying Canfield's business. Another witness testified that Gill told her that she
withdrew because Gill's father was not going to give her the money she needed.
During the trial Canfield consistently contended that the agreement was a sales contract.
The document itself was entitled Sales Agreement and Deposit Receipt, and it identified
Gill as the purchaser. The contract also stated that Canfield accepted Gill's offer and agreed to
sell the described property for the specified price and terms. Both parties signed the
agreement.
The district court had no power to create an option contract that the parties themselves
neither created nor intended. See Old Aztec Mine, Inc. v. Brown, supra at 52, 623 P.2d at
983. Therefore, the judgment in favor of respondent is reversed.
Finally, Canfield also contends that we can determine the issue of damages in this appeal
because most of the relevant facts regarding damages were presented at trial. In the absence
of a factual finding by the district court, however, we decline to resolve that issue. See Round
Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981); see also Buchanan v.
Buchanan, 90 Nev. 209, 523 P.2d 1 (1974) (function of this court does not include resolution
of evidentiary matters).
Accordingly, the judgment of the district court is hereby reversed, and this matter is
remanded for a determination of Canfield's damages.
2

____________________

2
Canfield's third contention regarding recovery in quantum meruit is rendered moot by our reversal of the
judgment on the ground stated above.
____________
101 Nev. 173, 173 (1985) Nevada Gaming Comm'n v. Desert Palace
NEVADA GAMING COMMISSION, STATE GAMING CONTROL BOARD and STATE
OF NEVADA, Appellants, v. DESERT PALACE, INC., dba CAESARS PALACE; SUMMA
CORPORATION dba CASTAWAYS HOTEL; DESERT INN AND COUNTRY CLUB; and
FRONTIER HOTEL; CONSOLIDATED CASINOS CORPORATION: HILTON HOTEL
CORPORATION dba FLAMINGO HILTON and LAS VEGAS HILTON; MGM GRAND
HOTEL-LAS VEGAS, INC.; HUGHES PROPERTIES, INC., dba SANDS HOTEL; HOTEL
RAMADA OF NEVADA dba TROPICANA RESORT AND CASINO; and SCOTT
PLAZA, INC., dba UNION PLAZA HOTEL & CASINO, Respondents.
No. 15720
April 4, 1985 697 P.2d 477
Appeal from a district court order granting respondent's motion for summary judgment;
Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Resort hotels filed suit challenging Gaming Commission's interpretation of casino
entertainment tax statute concerning payments by resort patrons to brokers who provide
various services to such patrons. The district court entered summary judgment in favor of
hotels, and state appealed. The Supreme Court held that payments by resort patrons to brokers
for commissions and as reimbursement for monies advanced by brokers in connection with
broker's obtaining show-room reservations, pre-paying drink charges, pre-paying gratuities,
and other related services, are not amounts paid for admission, food, refreshments and
merchandise within meaning of statute imposing casino entertainment tax equivalent to 10
percent of such amounts.
Affirmed.
Brian McKay, Attorney General, Carson City, Mark Lerner, Deputy Attorney
General-Gaming Division, Las Vegas, for Appellants.
Lionel, Sawyer & Collins and Robert D. Faiss, and Anthony N. Cabot, Las Vegas, for
Respondents.
Gaming.
Payments by resort patrons to brokers for commissions and as reimbursement for monies advanced by
brokers in connection with broker's obtaining show-room reservations, pre-paying drink charges,
pre-paying gratuities, and other related services, are not amounts paid for admission, food,
refreshments and merchandise" within meaning of statute imposing casino
entertainment tax equivalent to 10 percent of such amounts.
for admission, food, refreshments and merchandise within meaning of statute imposing casino
entertainment tax equivalent to 10 percent of such amounts. NRS 463.401.
OPINION
Per Curiam:
In this appeal we are required to interpret NRS 463.401. This statute imposes a casino
entertainment tax equivalent to 10 percent on all amounts paid for admission, food,
refreshments and merchandise.
Although gaming commission has in the past taken the position that the casino
entertainment tax did not apply to amounts paid by patrons for services as distinguished from
amounts paid for admission, food, refreshments, and merchandise, in 1983 the commission
started taxing amounts paid to brokers who provided services to resort patrons in the form of
obtaining show-room reservations, pre-paying drink charges, pre-paying gratuities, and other
related services. The respondent resort hotels filed suit in district court challenging the
gaming commission's interpretation of the statute and seeking a declaration of the meaning of
the statute. The district court granted the resort hotels' motion for summary judgment, ruling
that payments by resort patrons to brokers for commissions and as reimbursement for monies
advanced by brokers for mandatory gratuities required by union contract were not amounts
paid for admission, food, refreshments and merchandise within the meaning of NRS
463.401, and therefore were not subject to the casino entertainment tax. The state appeals
from this ruling.
The state contends that all amounts paid by the patron to brokers are amounts paid for
admission, reasoning that the disputed amounts are in reality merely a part of the cost of
doing business and therefore not properly characterized as amounts paid for services. Since
neither the amounts retained by the ticket brokers nor the amounts forwarded to the union as
mandatory gratuities are ever received as a benefit to the resort hotels, this contention must be
rejected. Both broker commissions and required gratuities are paid by the patron for services
received by the patron and not as a benefit to the resort. We perceive no apparent difference
between the gratuity left on a showroom table for the waiter and one that is paid for in
advance through a ticket broker and forwarded by the union to the waiter. These sums are
paid for service to the patron and paid by the patron in a transaction apart from any direct
dealings with the resort hotel. Similarly, the amount paid by patrons to ticket brokers as a
broker's commission is appropriately characterized as an amount paid for services to the
patron and not an amount paid to the resort hotel for admission, food, refreshment, or
merchandise.
paid for services to the patron and not an amount paid to the resort hotel for admission, food,
refreshment, or merchandise. Brokers provide a variety of valuable services to the patron
which include allowing patrons to choose entertainment locations, menus, and prices
available at the various showrooms. Payment for such services is not a taxable item for
resorts.
This court has previously stated that a tax statute will not be extended by implication. See
Cashman v. Photo Concessions and Labs, Inc. v. Nevada Gaming Commission, 91 Nev. 424,
538 P.2d 158 (1975). Following the rule articulated in Cashman and the plain language of the
statute, we affirm the judgment of the trial court.
____________
101 Nev. 175, 175 (1985) Hindenes v. Whitney
MARIA E. I. HINDENES, aka MARIA E. I. WHITNEY HINDENES, Formerly Known as
MARIA E. I. WHITNEY, Appellant, v. RAYMOND B. WHITNEY, An Adult
Ward, by MARY WHITNEY VOGELHEIM, His Guardian ad Litem, Respondent.
No. 15238
April 5, 1985 697 P.2d 932
Appeal from judgment, Second Judicial District Court, Washoe County; James J. Guinan,
Judge.
Husband's guardian ad litem brought suit against wife seeking damages alleging fraud, and
seeking an accounting of properties transferred to wife and an order vacating divorce decree.
The district court entered final judgment setting aside parties' divorce and ordering wife to
pay approximately $123,000 in punitive damages, and wife appealed. The Supreme Court,
Robison, D. J., held that trial court's instruction that the burden of proof as to fraud is
something more than a preponderance of evidence and less than clear and convincing
evidence constituted prejudicial and reversible error.
[Rehearing denied December 24, 1985]
Breen, Young, Whitehead, Belding & Hardesty, Reno, for Appellant.
Cooke, Roberts & Reese, Reno, for Respondent.
1. Fraud.
Burden is on plaintiff to establish fraud by clear and convincing evidence.
2. Divorce.
Trial court's instruction that the burden of proof as to fraud is something more than a preponderance of
evidence and less than clear and convincing evidence constituted prejudicial and reversible error in suit
brought by husband's guardian ad litem against wife alleging fraud, and seeking an accounting of properties
transferred to wife and an order vacating divorce decree.
OPINION
By the Court, Robison, D. J.:
Appellant, Maria Whitney Hindenes, wife and defendant below, and respondent, Raymond
B. Whitney, husband and plaintiff below, were married in 1959. Raymond was employed in
the computer industry and eventually attained the position of vice president and received a
good salary, generous expense account, and valuable stock options. The parties acquired
substantial real property and stock and, in 1966, Raymond formed his own computer
business. The parties realized approximately $500,000 for the years 1965 through 1967 from
Raymond's salary and the sale of real and personal property. Raymond managed the
community property, and Maria was not consulted on business matters prior to 1967. The
parties incurred large tax liabilities with the State of California and the Internal Revenue
Service, and the computer business became insolvent because of Raymond's mismanagement
of the community assets.
In 1967, Maria began taking an active interest in managing the community property and
was successful utilizing community assets in satisfying the tax obligations. She continued to
participate in financial matters with the knowledge and consent of Raymond from that point
forward. From 1966 to 1975, Raymond was unable to maintain steady employment and held
various jobs, each progressively less responsible with commensurate lower salaries. Raymond
attempted to form another commuter company utilizing community assets in 1971-72, but
this venture also ended in failure. At this time, the parties were living separate and apart, and
in an attempt to provide for his wife, Raymond deeded certain real property located in
California and Nevada to her in 1973-74.
In 1975, Maria, a Nevada resident, consulted an attorney regarding a divorce.
Subsequently, Raymond met his wife at her attorney's office in Sparks and, after a
consultation, executed a power of attorney authorizing another attorney to appear on his
behalf in the divorce action. Maria filed her divorce complaint on January 13, 1975, and a
decree of divorce was granted the same day. The only community property before the court
consisted of furniture and fixtures, which were awarded to Maria.
furniture and fixtures, which were awarded to Maria. After the divorce, Raymond lived in
Sacramento employed as a salesman for a sprinkler and awning company. Some thirty (30)
months later, he was diagnosed as having Alzheimer's disease. The instant suit, which was
filed by Raymond's duly-appointed Guardian ad Litem on May 30, 1980, sought damages
alleging fraud, an accounting of properties transferred to Maria, and an order vacating the
divorce decree.
This appeal is from a final judgment in that action based on a jury verdict setting aside the
parties' divorce and ordering Maria to pay $123,685.06 in punitive damages. The fraud
allegations were on numerous grounds: (1) that Maria concealed her husband's incompetent
mental condition from the court; (2) that Maria failed to disclose all the community property
to the court; (3) that Maria fraudulently procured Raymond's signature on the power of
attorney; and (4) that Maria's fraud prevented Raymond from defending the divorce action
and asserting legal rights and remedies that were available to him.
The jury found by four special verdicts, the following:
(1) That Raymond was not incompetent on January 23, 1973, April 23, 1973, July 29,
1974 (dates real property was transferred to Maria). That Raymond was incompetent
January 8, 1976.
(2) That Maria did not make any false representations upon which Raymond relied to
induce him to make the real property transfers. That Maria did make false
representations to Raymond to induce him to sign the power of attorney in the 1976
divorce action.
(3) That Maria became aware that Raymond was incompetent in July 1975.
(4) That Raymond should be awarded 50% of Maria's net worth as of January 13, 1976,
for punitive damages.
Based on these special verdicts, the evidence and testimony, the district court found
Maria's net worth to be $247,370.12 and awarded one-half ($123,685.06) as and for punitive
damages. The district court further ordered that the parties' divorce decree and January 13,
1976, be set aside and vacated.
Maria seeks reversal and numerous grounds: (1) that the lower court committed reversible
error in instructing the jury as to burden of proof; (2) that special verdict number 4 is too
vague and indefinite for entry of judgment, and the record does not supply essential missing
facts to establish the net worth of Maria; and (3) that the lower court erred in entering
judgment for punitive damages, when the jury did not award compensatory damages.
Maria's first contention has merit and, for the following reasons, the judgment of the
district court is reversed and the matter remanded for further proceedings consistent with this
opinion.
[Headnotes 1, 2]
As to the first assignment of error, the jury instruction given by the trial court over
objection as to the burden of proof read in part: [T]he burden of proof as to fraud is
something more than a preponderance of evidence and less than clear and convincing
evidence. In the court below, Raymond alleged both common law fraud and extrinsic fraud
in an independent equitable action to set aside the divorce decree. See, e.g., Muscelli v.
Muscelli, 96 Nev. 41, 604 P.2d 1237 (1980); NRCP 60(b). Under either claim, the burden is
on the plaintiff to establish fraud by clear and convincing evidence. In Occhiuto v. Occhiuto,
97 Nev. 143, 146 n. 2, 625 P.2d 568, 570 n. 2 (1981), this court established the burden of
proof in an independent equitable action for fraud upon the court as clear and convincing
evidence. See also, Lubbe v. Barba, 91 Nev. 596, 598, 540 P.2d 115, 117 (1975). This
instruction constitutes prejudicial and reversible error requiring a new trial. We, therefore,
need not address the other issues presented because they involve claims of error which may
not reoccur upon retrial.
1

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

____________________

1
Because the parties have not specifically raised the propriety of a jury trial in an independent equitable
action to set aside a divorce decree, we make no determination on this issue. However, we instruct the trial court
to consider carefully the propriety of a jury trial in this case.

2
The Honorable Norman C. Robison, Judge of the Ninth Judicial District Court, was designated by the
Governor to sit in place of the former Justice Noel E. Manoukian, who voluntarily disqualified himself. Nev.
Const., art. 6, 4. Justice C. Clifton Young did not participate in the consideration of this case.
____________
101 Nev. 179, 179 (1985) McGuire v. Welfare Division
KAREN McGUIRE, Appellant, v. WELFARE DIVISION OF THE STATE DEPARTMENT
OF HUMAN RESOURCES, Respondent.
No. 15416
April 8, 1985 697 P.2d 479
Appeal from an order terminating parental rights, Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
State filed petition to terminate mother's parental rights to daughter. The district court
terminated mother's parental rights, and she appealed. The Supreme Court held that State
failed to prove clearly and convincingly threshold jurisdictional grounds required to
effectuate a termination of mother's parental rights.
Reversed.
James Fallman, Sparks, for Appellant.
Brian McKay, Attorney General; Wilbur H. Sprinkel, Deputy Attorney General, Carson
City, for Respondent.
1. Infants.
Clear and convincing evidence of neglect is required to uphold termination of mother's parental rights.
NRS 128.014, subds. 1, 2.
2. Infants.
State failed to prove clearly and convincingly threshold jurisdictional grounds required to effectuate a
termination of mother's parental rights to daughter, where none of evidence adduced at trial clearly
demonstrated that daughter lacked proper parental care by reason of fault or habits of mother, and nothing
in record demonstrated that mother refused to provide necessary subsistence, education, medical or surgical
care for daughter.
OPINION
Per Curiam:
This is an appeal from an order of the district court terminating parental rights. For the
reasons expressed below, we reverse that portion of the district court's order which terminates
the parental rights of appellant, Karen McGuire.
1

In 1978, Karen McGuire and her seven-year-old daughter, Lorenda, moved from
California to Nevada. On October 11, 197S, Karen sustained serious injuries in an
automobile accident.
____________________

1
The district court's order also terminates the parental rights of the minor child's legal father, George Wilson
McGuire, and putative father, Donald Anater. Neither the legal father nor the putative father has appealed.
Accordingly, the district court's order terminating their parental rights remains in full force and effect.
1978, Karen sustained serious injuries in an automobile accident. During Karen's stay at the
hospital, Lorenda was placed in the custody of the Washoe County Welfare Department and
on December 8, 1978, Lorenda was placed with the Nevada State Welfare Division
(hereinafter referred to as the State).
After Karen was released from the hospital, she informed a social worker assigned to
Lorenda's supervision that she intended to move back to California. The social worker
informed Karen that a working agreement would have to be developed before Lorenda could
be returned to Karen's custody.
Through 1979 and part of 1980, Karen made trips from California to Nevada to visit
Lorenda. Her ability to visit her child was restricted, however, by the fact that she was
receiving welfare in California and she had limited funds. Although Karen made several
visits, she was never presented with a written case plan detailing the steps she would have to
take in order to regain custody of Lorenda. As time passed, friction developed between Karen
and the social worker.
On October 28, 1980, the State filed a petition to terminate parental rights. After hearing
trial testimony from several witnesses, the district court concluded that Lorenda was a
neglected child and accordingly terminated Karen's parental rights.
[Headnote 1]
On appeal, Karen asserts that the State failed to present clear and convincing evidence at
trial to demonstrate that Lorenda was a neglected child pursuant to the definition of that
term as set forth in NRS 128.014(1) and (2). This statute reads in pertinent part:
Neglected child includes a child:
1. Who lacks the proper parental care by reason of the fault or habits of his parent,
guardian or custodian;
2. Whose parent, guardian or custodian neglects or refuses to provide proper or
necessary subsistence, education, medical or surgical care, or other care necessary for
his health, morals or well being. . . .
Both parties agree that at least clear and convincing evidence of neglect is required to uphold
the termination of Karen's parental rights. See Santosky v. Kramer, 455 U.S. 745 (1982).
In Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984), this court set
forth the following principles applicable to the process of terminating parental rights:
We have held that one who institutes termination proceedings must be able to prove
clearly and convincingly that there are both jurisdictional and dispositional grounds
for termination.
are both jurisdictional and dispositional grounds for termination. This means, first, that
the parent must have provided some cause for the termination. Specific
groundsabandonment, abuse, neglect, unfitness, certain forms of incapacity or failure
to adjustmust support a conclusion of parental unsuitability before termination of
parental rights can be justified.
Jurisdictional grounds are not enough; it still must be shown that the child's interest
would be better served by termination than continuation of the natural parent's
relationship; or, as we put it, if under no reasonable circumstances the child's best
interest can be served by sustaining the parental tie, the second requirement, the
dispositional ground, has been fulfilled.
Champagne v. Welfare Division, supra at 640, 691 P.2d at 865.
[Headnote 2]
In reviewing the record, we conclude that the requirements outlined in Champagne were
not met in the present case because the State failed to prove clearly and convincingly the
threshold jurisdictional grounds required to effectuate a termination of parental rights. None
of the evidence adduced at trial clearly demonstrates that Lorenda lacked proper parental care
by reason of the fault or habits of Karen. Nothing in the record demonstrates that Karen
refused to provide necessary subsistence, education, medical or surgical care for her daughter.
Indeed, one of the State's own witnesses testified that Karen had not neglected Lorenda.
Since the degree and duration of parental fault necessary to establish jurisdictional grounds
for the termination of Karen's parental rights have not been established on the record by clear
and convincing evidence, the district court's order terminating Karen's parental rights cannot
be upheld. See Santosky v. Kramer, supra; Champagne v. Welfare Division, supra. There is,
therefore, no need to address the dispositional grounds required for termination of parental
rights. Accordingly, we hereby reverse the district court's order terminating the parental rights
of Karen McGuire.
2

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

2
The Governor designated The Honorable David Zenoff, Senior Justice, to participate in the consideration of
this case pursuant to Nev. Const., art. 6 4. The Honorable C. Clifton Young, Justice, did not participate in the
consideration of this case.
____________
101 Nev. 182, 182 (1985) Jensen v. McGowan
SHARON A. JENSEN, AMBER DEANNE JENSEN and ANGELIKA CEGLA, Appellants,
v. THE ESTATE OF HARRY O'DELL McGOWAN, JAMES
ALLEN BALLARD, Executor, Respondent.
No. 15661
April 15, 1985 697 P.2d 1380
Appeal from judgment on executor's petition for instructions; Eighth Judicial District
Court, Clark County; Stephen L. Huffaker, Judge.
Trustee and trust committee of pension plan filed petition for instructions requesting
guidance from court as to proper distribution of pension benefits. The district court gave
trustee and trust company exclusive discretion to designate beneficiary from list in pension
plan without regard for stated priorities, and decedent's daughters appealed. The Supreme
Court held that trustee was required to make selection of beneficiaries from list of eligible
individuals in order set forth in pension plan.
[Rehearing denied June 20, 1985]
Roland S. Ericsson, Las Vegas, for Appellant Jensen.
Goodman, Terry, Stein & Quintana, Las Vegas, for Appellant Cegla.
Robert K. Dorsey, Las Vegas, for Respondent.
Master and Servant.
Trustee of company pension plan was required to make selection of beneficiaries for death benefits from
list of eligible individuals in order set forth in pension plan, in light of inclusion of word priority in plan.
OPINION
Per Curiam:
Harry O'Dell McGowan died testate on June 30, 1983. He was survived by two daughters
and a sister. In his will, McGowan made testamentary provision for one daughter, and the
residue of the estate was left to his sister.
1
McGowan was an employee of the Better
Building Company and had participated in the company's pension and trust plan.
____________________

1
The trial court found that the decedent intentionally omitted his second daughter from the will. This issue is
not before us in this appeal.
101 Nev. 182, 183 (1985) Jensen v. McGowan
pension and trust plan. The pension plan provided for the payment of death benefits to the
designated beneficiary. McGowan, however, failed to designate a beneficiary of his pension
fund and also failed to seek distribution of these funds through his will. Article VII, paragraph
7.3 of the plan provides for the selection of a beneficiary in the event the participant fails to
designate someone to receive such benefits. That paragraph states: the Committee shall be
empowered to designate as beneficiary the following in order of priority: The spouse,
children, grandchildren, parents, brothers and sisters, and the estate of the participant.
On November 23, 1983, the trustee and trust committee of the pension plan filed a petition
for instructions requesting guidance from the court as to the proper distribution of the pension
benefits. In the petition the trustee sought to have the proceeds delivered to McGowan's sister,
in conformance with the provisions of McGowan's will.
The district court found that the will and pension plan were to be construed alone and that
neither would have any affect on the other. The court, however, gave the trustee and trust
committee exclusive discretion to designate the beneficiary from the list in article VII,
paragraph 7.3, without regard for the stated priorities. The trust committee designated
McGowan's sister as beneficiary of the benefits awarded under the pension plan, and
McGowan's daughters appealed.
The phrase the following in order of priority cannot be ignored. [A]s the term is
commonly used priority' is the quality or condition of being first in order of right; it implies
that there is a second right which, although just, is subordinate to another in enforcement.
Security Nat'l Bank v. Washington, 570 S.W.2d 40 (Tex. 1978).
Given the clear meaning of priority, the inclusion of the word in paragraph 7.3 mandates
that the trustee make the selection of beneficiaries from the list of eligible individuals in the
order set forth in that paragraph. See Metropolitan Life Ins. Co. v. Thompson, 368 F.2d 791
(3rd Cir. 1966). The district court erred when it determined that the trust committee did not
have to give priority to any of the classes named in the list. Therefore, that portion of the
judgment is reversed and the case remanded for a determination in accordance with this
opinion.
2

____________________

2
Since no cross-appeal has been filed by respondent, we will not consider its contention that the district court
erred in finding the language of paragraph 7.3 to be mandatory rather than permissive. See Sierra Creek Ranch v.
J.I. Case, 97 Nev. 457, 634 P.2d 458 (1981); Maher v. Swift, 14 Nev. 324 (1879).
____________
101 Nev. 184, 184 (1985) Westinghouse Beverage v. Dep't Taxation
WESTINGHOUSE BEVERAGE GROUP, INC., a Delaware Corporation, d/b/a SEVEN-UP
BOTTLING CO. OF LAS VEGAS; BELFAST BOTTLING CO. OF RENO, a Nevada
Corporation, d/b/a/ PEPSI-COLA BOTTLING CO. OF RENO; COCA-COLA BOTTLING
COMPANY OF LOS ANGELES, a California Corporation, COCA-COLA BOTTLING
COMPANY OF LAS VEGAS; JULIAN'S DISTRIBUTING CO., INC., d/b/a/ SEVEN-UP
BOTTLING COMPANY; PEPSI-COLA METROPOLITAN BOTTLING COMPANY, a
New Jersey Corporation, d/b/a PEPSI-COLA BOTTLING GROUP OF LAS VEGAS; L. W.
PERALDO CO., INC., a Nevada Corporation; SEVEN-UP BOTTLING COMPANY OF
RENO, a Nevada Corporation; SHOSHONE COCA-COLA BOTTLING CO., a Nevada
Corporation; VALLEY DISTRIBUTORS, INC., a Nevada Corporation; ELKO BOTTLING
COMPANY, a Nevada Corporation; GILLESPIE DISTRIBUTING COMPANY, a California
Corporation; BLACH DISTRIBUTING CO., a Nevada Corporation; WAREHOUSE
MARKETS, INC., a Nevada Corporation; CAPITAL CIGAR COMPANY d/b/a/ CAPITAL
CIGAR AND CANDY CO., a California Corporation; WINNEVA DISTRIBUTING CO.,
INC., a Nevada Corporation; BAIR DISTRIBUTING, INC., a Nevada Corporation,
Appellants, v. DEPARTMENT OF TAXATION; NEVADA TAX COMMISSION;
PATRICK PINE, as Executive Director of the Department of Taxation; JEROME D. MACK,
as Chairman of the Nevada Tax Commission; GENE F. EMPEY, HARLEY E. HARMON,
SR., IRA H. KENT, ROY NICKSON, NEIL W. PLATH, and W. HOWARD WINN, as
Members of the Nevada Tax Commission; PATTY D. CAFFERATA, as Treasurer of the
State of Nevada; and the STATE OF NEVADA, Respondents.
No. 15582
April 25, 1985 698 P.2d 866
Appeal from judgment declaring NRS Chapter 369A to be constitutional and denying
injunctive relief; Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Corporations challenged statute imposing tax on privilege of importing for sale at retail or
selling at wholesale soft drinks or syrups and powders used to make soft drinks. The district
court found statute to be constitutional, and corporations appealed. The Supreme Court,
Springer, C. J., held that statute was not unconstitutional on its face and was not
unconstitutional as applied to any of corporations challenging statute.
stitutional on its face and was not unconstitutional as applied to any of corporations
challenging statute.
Affirmed.
[Rehearing denied August 27, 1985]
Lionel, Sawyer & Collins, Las Vegas, for Appellants.
Brian McKay, Attorney General, and Marta A. Adams, Deputy Attorney General, Carson
City, for Respondents.
1. Statutes.
Statute involving economic considerations and not First Amendment freedoms may be stricken as
unconstitutionally vague only if it is found to be so in all of its applications. U.S.C.A.Const. Amend. 1.
One who is not prejudiced by operation of statute cannot question its validity.
Legislative enactments are valid unless contrary is clearly established.
It is not proper to enter into determination of constitutionality of statute on supposed or hypothetical case
which might arise thereunder.
5. Food.
Statute imposing tax on privilege of importing for sale at retail or selling at wholesale soft drinks or
syrups and powders used to make soft drinks was not unconstitutionally vague as to corporations
challenging statute, despite contention that statute failed to identify what was being taxed or who was
required to pay tax, as corporations did not argue that statutory definitions were vague as to them or that
they did not understand statutory language and statute clearly identified that tax had to be paid by
wholesale dealer. NRS 369A.010 et seq.
6. Taxation.
Wholesale dealers who lack any demonstrable nexus with State cannot be taxed.
7. Declaratory Judgment.
There was nothing in record to show that trial court erred in upholding constitutionality of tax statute as
to due process with regard to any of corporations who challenged tax, as such corporations did not plead in
complaint for declaratory relief that they did not have constitutionally sufficient relationship or nexus
between corporation and State to justify their being taxed. NRS 369A.010 et seq.; U.S.C.A.Const.
Amend. 14.
Burden of proving unconstitutionality of statute is upon person attacking that statute.
9. Commerce.
Corporations challenging statute which makes it misdemeanor for retail dealer of soft drinks to import
from unlicensed wholesaler but does not make it criminal for retail dealer simply to purchase from
unlicensed wholesaler, failed to overcome presumption of constitutionality of statute, as corporations
offered no evidence to show that effect of statute encouraged retailers to deal with in-state wholesalers
instead of out-of-state wholesalers. NRS 369A.080, subd. 4.
10. Constitutional Law; Licenses.
syrups and powders used to make soft drinks did not discriminate among taxpayers who were similarly
situated in violation of equal protection clause, despite contention that statute gave competitive advantage
to integrated companies, as it was undisputed that tax was actually being paid by integrated companies and
there was no indication in record that these companies were attempting to evade tax. NRS 369A.010 et
seq.; U.S.C.A.Const. Amend. 14; Const. art. 4, 21.
11. Constitutional Law; Licenses.
syrups and powders used to make soft drinks did not violate equal protection clause as to classifications
based upon differences in commodity or beverage being sold or in nature of business being conducted, as
classifications were not arbitrary or irrational. NRS 369A.010 et seq.; U.S.C.A.Const. Amend. 14;
Const. art. 4, 21.
12. Statutes.
syrups and powders used to make soft drinks did not violate constitutional provision requiring each law to
embrace but one subject. NRS 369A.010 et seq.; Const. art. 4, 17.
13. Taxation.
syrups and powders used to make soft drinks was not invalid amendment of Sales and Use Tax Act. NRS
369A.010 et seq.
OPINION
By the Court, Springer, C. J.:
Chapter 369A, Nevada Revised Statutes, imposes a tax on the privilege of importing for
sale at retail or selling at wholesale soft drinks or syrups and powders used to make soft
drinks.
1
Sixteen corporations which sell soft drinks or soft drink syrups at wholesale in
Nevada have challenged the constitutionality of the statute in a declaratory judgment action.
The trial court found the statute to be constitutional, and the corporations have appealed. The
trial court's judgment is affirmed.
1. Statutory Vagueness.
The corporations claim that the statute is too vague because it fails to identify what is
being taxed or who is required to pay the tax.
The taxable commodity is soft drinks or their precursors. Counsel for the corporations
expresses no difficulty on the part of his wholesalers in understanding what a soft drink is or
what "syrups and powders used to make soft drinks" are.
____________________

1
Chapter 369A is set forth in its entirety in the appendix to this opinion.
syrups and powders used to make soft drinks are. Neither do we.
In State of Nevada v. Glusman, 98 Nev. 412, 651 P.2d 639 (1982), appeal dismissed, 459
U.S. 1192 (1983), this court directed its attention to a challenge to the constitutionality of a
statute based on a charge of vagueness. In Glusman we held:
The criterion under which we examine the assertion of vagueness is whether the statute
either forbids or requires the doing of any act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application. . . .
Connally v. General Construction Co., 269 U.S. 385 (1926) cited by this Court in In re
Laiolo, 83 Nev. 186, 426 P.2d 726 (1967). Equally important in a facial challenge for
vagueness is whether the statute impinges upon First Amendment freedoms. If not, a
statute may be stricken as unconstitutionally vague only if it is found to be so in all of
its applications. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 71
L.Ed.2d 362 (1982). Further, our standard of review is less strict under a challenge for
vagueness where the statute is directed at economic regulations.
98 Nev. at 420-21.
[Headnotes 1-5]
The statute in question here involves economic considerations and not first amendment
freedoms; consequently, the statute may be stricken as unconstitutionally vague only if it is
found to be so in all of its applications. Such cannot be said of this statute, particularly
because the corporations do not argue that the statutory definitions are vague as to them or
that they do not understand the statutory language; rather, they argue that under certain
circumstances other soft drink wholesalers might find the statute to be unconstitutionally
vague. One who is not prejudiced by the operation of a statute cannot question its validity.
Spears v. Spears, 95 Nev. 416, 418, 596 P.2d 210, 212 (1979). Even where we reach the
constitutional issue, we are bound by the presumption that legislative enactments are valid
unless the contrary is clearly established. Allen v. State of Nev., Pub. Emp. Ret. Bd., 100
Nev. 130, 133, 676 P.2d 792, 794 (1984); List v. Whisler, 99 Nev. 133, 137, 660 P.2d 104,
106 (1983). This court does not consider it proper to enter into a determination of the
constitutionality of [a] statute on a supposed or hypothetical case which might arise
thereunder. Magee v. Whitacre, 60 Nev. 208, 212, 106 P.2d 751, 752 (1940) (opinion on the
merits). As to appellant corporations it is quite clear just what is subject to the tax.
The additional claim that the statute does not clearly identify who is to pay the tax is
without merit.
who is to pay the tax is without merit. The tax must be paid, as stated in the statute, by the
wholesale dealer upon sales of soft drinks, syrups, and powders. There is nothing vague about
this.
2. Due Process of Law.
[Headnotes 6, 7]
The corporations claim that non-Nevada wholesalers are unjustly subjected to taxation by
this statute without a sound constitutional basis for doing so. The claim is that wholesale
dealers who lack any demonstrable nexus with Nevada cannot be taxed. This is, of course,
true; and we have so held in State, Nev. Tax Comm'n v. Obexer & Son, 99 Nev. 233, 236-37,
660 P.2d 981, 984 (1983). To impose liability for the collection of a use tax on an
out-of-state seller, there must be a constitutionally sufficient relationship or nexus' between
the seller and the taxing state, such as the maintenance by the seller of offices, agents,
salespersons, or property in the state. 99 Nev. at 237. It is entirely possible that one or more
of the corporations which brought this suit do not have a constitutionally sufficient
relationship or nexus between the corporation and this state to justify its being taxed; but such
a claim is not pleaded in the complaint for declaratory relief, and there is nothing in the
record to show that the trial court erred in upholding the constitutionality of this statute with
regard to any of the named corporate complainants.
3. Discrimination Against Interstate Commerce.
NRS 369A.080(4) contains an anomolous provision, which, for reasons that are unclear to
us, makes it a misdemeanor for a retail dealer to import from an unlicensed wholesaler;
whereas it does not make it criminal for a retail dealer simply to purchase from an unlicensed
wholesaler. Such a provision enables a retailer to purchase from a local wholesaler without
threat of criminal action while risking prosecution when importing soft drinks from an
out-of-state wholesaler.
This provision does not directly discriminate against out-of-state vendors, but it can be
argued, as the corporations do, that imposing criminal sanctions on retailers for importing
from unlicensed out-of-state wholesalers but not for purchasing from unlicensed in-state
wholesalers might induce retailers to opt for the safety of restricting their purchases to in-state
wholesalers. Credence is given to this argument by the state when it argues that the purpose
of the statute is to encourage retail dealers to buy only from licensed in-state wholesalers.
[Headnotes 8, 9]
The burden of proving the unconstitutionality of a statute is upon the person attacking
that statute. Allen v. State of Nev., Pub. Emp. Ret. Bd., 100 Nev. 130, 676 P.2d 792 (1984);
List v. Whisler, 99 Nev. 133
Whisler, 99 Nev. 133, 660 P.2d 104 (1983). The question, of course, is whether the penal
statute encourages retailers to deal with in-state vendors instead of out-of-state vendors so as
to avoid the risk of possible criminal prosecution. The corporations offered no evidence to
show that this is the effect of the statute. Since the corporations have again failed to overcome
the presumption of constitutionality, we refuse to invalidate the statute.
4. Equal Protection of the Laws.
[Headnote 10]
The corporations claim that the statute discriminates among taxpayers who are similarly
situated, in violation of the equal protection clause of the fourteenth amendment and article 4,
section 21, of the Nevada Constitution.
2

Appellants argue that the statute gives a competitive advantage to so-called integrated
companies, which manufacture soft drinks and also sell them at retail. Because there is no
established wholesale price in an integrated operation, appellants contend that integrated
companies can either avoid the tax altogether or, by establishing an artificially low
wholesale price, pay less than their fair share of the tax. This, of itself, does not make the
statute discriminatory. It is undisputed that the tax is actually being paid by the integrated
companies in question. We find no indication in the record that these companies are
attempting to evade the tax. Any abuses which might occur are matters for administrative
action. To accept appellants' argument is to assume that no such action will be taken. This we
decline to do.
[Headnote 11]
The remaining classifications challenged by appellants are based upon differences in the
commodity or beverage being sold, or in the nature of the business being conducted. On the
record before us, we cannot say that these classifications are arbitrary or irrational. Cf.
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981), reh'g denied, 450 U.S. 1027
(1981) (statute banning sale of milk in plastic nonreturnable, nonrefillable containers, but
permitting such sale in paperboard cartons, upheld); Caskey Baking Co. v. Virginia, 313 U.S.
117 (1941) (upheld statute imposing license tax on peddlers at wholesale, but exempting
other vendors); Henry's Restaurants of Pomona, Inc. v. State Bd. of Equal., 106 Cal. Rptr.
867 (Cal.App. 1973) (certain take out food taxable if purchased at drive-in restaurants,
but not taxable if purchased at conventional restaurants; statute upheld).
____________________

2
Nev. Const., art 4, 21: In all cases enumerated in the preceding section, and in all other cases where a
general law can be made applicable, all laws shall be general and of uniform operation throughout the State.
For these reasons, we reject appellants' contention that Chapter 369A denies them the
equal protection of the laws.
5. Other Claims of Error.
[Headnote 12]
The corporations' remaining arguments may be disposed of quickly. First, we are not
persuaded that A.B. 371, codified in Chapter 369A, violated the one subject provision of
the Nevada Constitution.
3
See T. & G. R. R. Co. v. Nev. Cal. T. Co., 58 Nev. 234, 75 P.2d
727 (1938).
[Headnote 13]
Second, we reject the contention that Chapter 369A is an invalid amendment of the Sales
and Use Tax Act. In Matthews v. State ex rel. Tax Comm'n, 83 Nev. 266, 428 P.2d 371
(1967), we upheld the validity of the School Support Tax against a challenge identical to that
made by appellants. We believe the holding of Matthews is controlling and we decline to
depart from it.
Chapter 369A is not unconstitutional on its face nor, on this record, in the manner that the
chapter is applied to any of the appellant corporations. The judgment of the trial court is,
therefore, affirmed.
Mowbray, Gunderson, Steffen and Young, JJ., concur.
____________
APPENDIX TO OPINION OF THE COURT
369A.010 Definitions. As used in this chapter, unless the context otherwise requires, the
words and terms defined in NRS 369A.020 to 369A.070, inclusive, have the meanings
ascribed to them in those sections.
369A.020 Retail dealer defined. Retail dealer means any person, other than a
wholesale dealer, who:
1. Mixes, makes, compounds or manufactures from a syrup or powder any soft drink for
sale at retail; or
2. Sells soft drinks, or syrups and powders used to make soft drinks, for any purpose other
than resale in the regular course of business.
369A.030 Sale defined. Sale means any transfer, exchange, barter, gift, offer for
sale, or distribution for consideration of soft drinks or syrups and powders used to make soft
drinks.
369A.040 Soft drink defined.
1. Soft drink means any nonalcoholic beverage, whether or not carbonated,
manufactured with or without the use of any syrup.
2. The term does not include:
(a) Milk in any form.
(b) Any formula used to replace milk in the feeding of infants.
____________________

3
Nev. Const. art. 4 17: Each law enacted by the legislature shall embrace but one subject, and matter,
properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be revised or
amended by reference to its title only; but, in such case, the act as revised or section as amended, shall be
re-enacted and published at length.
(c) Coffee or tea.
(d) Plain water.
(e) Natural undiluted fruit juice or vegetable juice, which is the liquid resulting from the
pressing of natural fruit or vegetables with or without the addition of artificial or natural
sugar, or the liquid resulting from the reconstitution of a concentrate of natural fruit or
vegetable juice by the restoration of water to dehydrated natural fruit juice or vegetable juice
with or without the addition of artificial or natural sugar.
369A.050 Syrup or powder used to make soft drinks defined. Syrup or powder used to
make soft drinks includes the compound mixture or the basic ingredients, whether dry or
liquid, domestically and commercially usable in making soft drinks by mixing or
compounding it with carbonated or plain water, ice, fruit, milk or any other product suitable
to make a soft drink.
369A.060 Wholesale dealer defined. Wholesale dealer means any person who sells
any soft drink, or syrup or powder used to make soft drinks, to retail dealers for the purpose
of resale.
369A.070 Wholesale price defined. Wholesale price means the established price for
which a wholesale dealer sells soft drinks, or syrups and powders used to make soft drinks, to
a retail dealer before any discount or other reduction is made.
369A.080 Tax imposed; penalty.
1. There is hereby imposed upon the privilege of importing for sale at retail or selling at
wholesale soft drinks, and syrups and powders used to make soft drinks, in this state, a tax of
5 percent of the wholesale price of those commodities.
2. The provisions of subsection 1 do not apply to those commodities which are shipped
out of the state for sale and use outside the state.
3. This tax must be paid by the wholesale dealer upon his sales of such commodities to
retail dealers. The tax is due on or before the last day of the first month of each calendar
quarter for sales during the preceding quarter. The wholesale dealer is entitled to retain 3
percent of the taxes collected to cover the costs of collecting and administering the taxes.
4. Any wholesale dealer who sells any such commodities without paying the tax provided
for by this section is guilty of a misdemeanor. Any retail dealer who imports any such
commodities from a person not licensed as a wholesale dealer is guilty of a misdemeanor.
369A.090 Wholesale dealer's license; bond.
1. Every person who desires to sell soft drinks, or syrups or powders used to make soft
drinks, to any retail dealer in this state must obtain a wholesale dealer's license from the
department and shall furnish a bond to the State of Nevada conditioned for the payment of all
excise taxes due or to become due from him under the provisions of this chapter. Except as
otherwise provided in subsection 3, each bond must be in a principal sum equal to the greatest
excise tax paid by the dealer in any quarter of the preceding year, or if such a standard is not
available, then in a sum required from a licensee operating under conditions deemed
comparable by the department. In no case may a bond be for an amount less than $1,000.
When cash or a certificate of deposit or investment certificate is used, the amount required
must be rounded off to the next larger integral multiple of $100.
2. The bond or undertaking must be one acceptable to and approved by the department,
and a deposit of cash or negotiable bonds of the United States Government may be accepted
in lieu of an undertaking. The department shall deposit all such government bonds and cash
deposits with the state treasurer as a custodian thereof.
3. Upon application and a satisfactory showing therefor, the department may, from time to
time, increase or decrease the amount of the required bond, having consideration for the
amount of taxable sales made by the dealer.
dealer. The department may waive the requirement of a bond pursuant to this section
whenever a licensed dealer has maintained a satisfactory record of payment of excise taxes
for a period of not less than 5 consecutive years.
369A.100 Records.
1. Every wholesale dealer must keep at his place of business complete and accurate
records for that place of business, including copies of all invoices of soft drinks, and syrups
and powders used to make soft drinks, which he holds, purchases and delivers or sells in this
state. All records must be preserved for at least 3 years after the date of purchase or after the
date of the last entry made on the record.
2. Every retail dealer shall keep at his place of business complete and accurate records for
that place of business, including copies of all itemized invoices or purchases of such
commodities purchased and delivered from wholesale dealers. The invoices must show the
name and address of the wholesale dealer and the date of the purchase. All records must be
preserved for 3 years after the date of the purchase.
369A.110 Credits.
1. The department shall allow a credit of 30 percent of the tax imposed pursuant to NRS
369A.080, less a discount of 3 percent for the services rendered in collecting the tax, for soft
drinks, or syrups and powders used to make soft drinks, which may no longer be sold. If such
commodities have been purchased and delivered, a manufacturer's credit memorandum is
required for proof of returned merchandise.
2. A credit must also be granted for such commodities shipped from the State of Nevada
and destined for retail sale and consumption outside the state on which the tax has previously
been paid. A duplicate or copy of the invoice is required for proof of the sale outside the state.
3. A wholesale dealer may claim a credit by filing with the department the proof required
by this section. The claim must be made on a form prescribed by the department.
369A.120 Remittances.
1. All amounts of tax required to be paid to the state pursuant to this chapter must be paid
to the department in the form of remittances payable to the department.
2. The department shall deposit these payments with the state treasurer for credit to the
account for tax on soft drinks in the state general fund
369A.130 Penalty for nonpayment; extension of due date. If the tax imposed by this
chapter is not paid when due there must be added thereto a penalty of 5 percent, together with
interest thereon at the rate of 1 percent per month, or any fraction thereof, from the date due
until paid. The department may, for good cause, extend for not more than 15 days after the
due date the time for paying the tax if a request for such an extension of time is received by
the department on or before the due date. If such extension is granted, interest accrues from
the original due date.
____________
101 Nev. 193, 193 (1985) Hubert v. Werner
PAULETTE HUBERT, Appellant, v. ROBERT WERNER
and DEANNA WERNER, Respondents.
No. 15101
April 25, 1985 698 P.2d 426
Appeal from summary judgment; Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Landowners brought quiet title action against abutting landowners based on dispute as to
boundary between properties. On cross-motions for summary judgment, the district court
granted summary judgment for plaintiff landowners, and defendant landowners appealed. The
Supreme Court held that substantial fact issues existed as to interpretation of deed
descriptions, understanding by landowners of extent of their property, and maintenance and
use of the disputed property, precluding summary judgment.
Herman A. Saitz, Las Vegas, for Appellant.
Jones, Jones, Bell, Close & Brown, Chartered; Susan Williams Scann, Las Vegas, for
Respondents.
1. Judgment.
Court should exercise great care in granting summary judgment; litigant has right to trial where slightest
doubt as to facts exists.
In evaluating propriety of grant of summary judgment, Supreme Court will review evidence in light most
favorable to party against whom summary judgment was rendered; all evidence favorable to party against
whom summary judgment was rendered will be accepted as true.
3. Judgment.
In quiet title action by landowners against abutting landowners based on dispute as to boundary between
their properties, substantial fact issues existed as to interpretation of deed descriptions, understanding by
landowners of extent of their property, and maintenance and use of the disputed property, precluding
summary judgment.
OPINION
Per Curiam:
This is an appeal from a summary judgment in favor of respondents in a quiet title action.
The dispute centered on the boundary line between two abutting pieces of property. Because
material issues of fact remain in dispute, we reverse and remand this matter for further
proceedings.
In 1974 respondents, the Werners, purchased a piece of property on the corner of
Tropicana and Burnham Streets in Las Vegas. Appellant, Hubert, had purchased the lot
immediately abutting and to the south of the Werners in 1968. Both lots and surrounding
property were originally owned by Elva and Cecil Cope. The Copes divided and sold most of
their land in the 1950's. The Copes retained and lived on a portion of the land and are
Hubert's predecessors in interest.
Hubert's and the Werners' deeds described the property by metes and bounds. If accurate,
the Hubert's northern boundary abuts precisely with the Werners' southern boundary with no
overlapping. The legal description in the Werners' deed also includes the following language:
Together with one domestic water well, block pump house and water well pump located on
said property. Hubert's deed makes no mention of the well and pump house. The well and
pump house lie approximately 15 feet south of Hubert's northern deed line. The well and
pump house were built in the late 1950's or early 1960's by one of the Werners' predecessors
in interest. The well and pump house have not been operated since before 1968.
In 1962 the Copes planted a line of trees on their land parallel to their northern deed line.
This tree line is south of the well and pump house and overlaps Hubert's northern deed line by
49.18 feet. When the Werners purchased their property in 1974 they understood that their
property included the well and pump house and all the land up to the tree line. In 1977 the
Werners had a survey conducted. The survey revealed that the Werners' southern boundary
was the deed line and not the tree line. Until this 1977 survey was conducted, Hubert never
knew the exact location of her northern boundary. After learning the results of this survey,
Hubert constructed a fence upon her actual northern deed line and took possession of all the
property south of the Werners' southern deed line.
The Werners objected and filed suit to quiet title on the 49.18 feet of disputed property.
Hubert filed a motion for summary judgment. The Werners filed a cross-motion for summary
judgment. The trial court granted the Werners' motion for summary judgment and the
judgment adjusted the Werners' boundary line from their deed line south 49.18 feet to the tree
line. On appeal, Hubert contends that there are material facts in dispute as to the location of
the boundary line, and, therefore, the trial court erred in granting summary judgment. We
agree.
[Headnotes 1, 2]
The constraints governing a summary judgment are well settled. A court should exercise
great care in granting summary judgment. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258,
260 {19S1).
260 (1981). A litigant has a right to a trial where the slightest doubt as to the facts exist. Oak
Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 623, 668 P.2d 1075, 1079 (1983). In
evaluating the propriety of a grant of summary judgment, we will review the evidence in the
light most favorable to the party against whom summary judgment was rendered. Id. All
evidence favorable to the party against whom summary judgment was rendered will be
accepted as true. Nehls, supra.
[Headnote 3]
Several material facts are in dispute. Two surveys of all the land in question were
completed. There is a factual question where the actual survey line is located and whether the
descriptions in the deeds are in error. There is conflicting evidence whether the Werners'
intention was to purchase one commercial acre, including the land on which the well and
pump house are located, or 3/4ths of a commercial acre. Although Hubert did not know
exactly where her northern boundary line was located until 1977, she did know the boundary
line was north of the tree line. In 1968 Hubert constructed a picket fence north of the tree line
but south of the well and pump house. From 1968 to the present Hubert has considered all
property south of the picket fence as hers. Hubert has paid the taxes on all the disputed
property up to the Werners' southern deed line from 1968 to present. Further, there is a factual
dispute over the length of time Hubert maintained and cleaned all of the disputed property.
There is also a factual dispute whether or not the Werners used the land on which the pump
house and well is situated prior to the 1977 survey. The location of the boundary line is a
material question of fact that is in dispute. The trial court erred in granting summary
judgment.
____________
101 Nev. 196, 196 (1985) Karadanis v. Newcomb
GEORGE KARADANIS, ROBERT M. MALOFF, dba SUNDOWNER HOTEL CASINO,
et al., Appellants and Cross-Respondents, v. LARRY NEWCOMB, Respondent
and Cross-Appellant, and MORROW CRANE CO., and LINDON-ALIMAK, A.K.,
Cross-Respondents.
No. 15226
April 25, 1985 698 P.2d 872
Appeal and cross-appeal from judgment entered on a jury verdict awarding damages;
Second Judicial District Court, Washoe County; William N. Forman, Judge.
Employee who was struck by manlift while working on construction site brought
negligence action against lessee of premises and strict products liability action against lessor
of manlift. The district court entered judgment against lessee of premises and entered
judgment in favor of lessor and manufacturer of manlift, and lessee of premises appealed and
employee cross-appealed. The Supreme Court held that: (1) there was ample evidence from
which jury could have found that hazardous condition on construction site was not open and
obvious; (2) dangerous condition was not necessary consequence of construction; and (3) jury
could reasonably have found that lessee of premises maintained such possession and control
of premises as to justify verdict against him.
Affirmed.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane; Reno, Terry, Winter & Wessel,
Carson City, for Appellants and Cross-Respondents Karadanis and Maloff.
David Hamilton, Reno, for Respondent and Cross-Appellant Newcomb.
C. Frederick Pinkerton, Reno for Cross-Respondent Morrow Crane Co.
Vargas & Bartlett, Reno, for Cross-Respondent Lindon-Alimak.
1. Negligence.
In negligence action against lessee of premises under construction for personal injuries suffered by
employee of independent contractor when he was struck by manlift, there was ample evidence from which
jury could have found that hazardous condition on construction site was not open and obvious, despite
contention that employee should have seen or heard descending manlift, as there was
conflicting testimony as to level of noise made by manlift relative to overall noise
level at busy construction site.
or heard descending manlift, as there was conflicting testimony as to level of noise made by manlift relative
to overall noise level at busy construction site.
2. Negligence.
employee of independent contractor when he was struck by manlift, lessee could not avoid liability on
ground that there was dangerous condition inherent in construction project, as dangerous condition was not
necessary consequence of construction but rather arose out of modification of manlift by removing portion
of mandatory safety enclosure.
3. Negligence.
Although testimony was conflicting in action against lessee of premises under construction for personal
injuries suffered by employee of independent contractor when he was struck by manlift, jury could
reasonably have found that lessee maintained such possession and control of premises as to justify verdict
against lessee, despite contention that lessee had relinquished possession and control of area in question to
construction company.
4. Negligence.
employee when he was struck by manlift, instruction that possessor of land who permits third person to use
land or chattels in his possession is under duty to exercise reasonable care to control conduct of third
person under certain conditions was proper and clear articulation of duties of possessor of land.
OPINION
Per Curiam:
On September 22, 1978, respondent Newcomb was working as a sheetrock taper on a
construction project at the Sundowner Hotel in Reno. Newcomb had been taping sheetrock on
the second floor of the building. After lunch he was working on the first floor, finished what
he was doing, and went to get some supplies off of a forklift. After getting the supplies, he
proceeded through an unfamiliar area on the construction site in order to be of assistance to
some sheetrock hangers. He found his path blocked by construction supplies, and while trying
to determine how to get where he wanted to go, he was knocked to a sitting position and
crushed by a descending personnel elevator (manlift). One of the sides of a wire mesh safety
enclosure around the manlift had been inexplicably removed and was not in place at the time
of the accident.
Newcomb believed that as he stepped into this unfamiliar area he was still inside the
building. Unfortunately, he had in reality exited the structure, which was not yet sheetrocked,
into the footprint, or zone of danger of the manlift. Newcomb testified that he had never
used the manlift and was not aware of its location or even its existence.
location or even its existence. He sustained severe injuries which resulted in paralysis from
the waist down. Subsequently, and as a result of the initial injury, he suffered a right-sided
cerebral stroke which resulted in left-side paralysis, and some mental impairment as well.
The Sundowner premises and improvements were at the time of the accident owned by
Lake Tahoe Inns, a California corporation, and leased to the Sundowner Hotel and Casino, a
general partnership composed of appellants Karadanis and Maloff. Lake Tahoe Inns had
entered into a construction contract with Cal-Neva H.K.M. Construction Company to
construct an addition to the Sundowner.
1

The mentioned manlift was manufactured by Lindon-Alimak and had been leased to
Cal-Neva by Morrow Crane Company. The purpose of the manlift was to transport workers to
the upper floors of the project until all the concrete had been poured and the interior elevators
were installed. Morrow Crane provided an advisor to assist with the placement and
installation of the manlift. The advisor's recommendation that the manlift be installed at the
rear of the new structure was rejected by Karadanis because the plans called for the alley at
the rear to have a canopy covering; this meant that the canopy would have to be constructed
after the manlift was removed, resulting in a higher construction cost. An alternate location
was later rejected for similar reasons. The location ultimately chosen was problematic in that
the architectural features of the structure would not accommodate the mandatory safety
enclosure which was part of the manlift. The location finally selected by Karadanis also
placed the manlift, pit, and enclosure partially on the leased property and partially on property
owned by the City of Reno, rather than on the construction site property. The lift was
installed, and the problem of inability to keep the safety enclosure in place was resolved by
removing the north wall of the safety enclosure with a cutting torch. Before the operating
permit inspection, a section of cyclone fence was attached by Karadanis as a substitute for the
missing north wall in an attempt to jerry-build a complete enclosure as required by safety
regulations. At some time later, however, the temporary fenced section of the enclosure was
removed and never replaced, thus leaving the north side of the manlift unenclosed and in a
dangerous condition on the day of the accident and for an appreciable time before the
accident.
Newcomb brought a negligence action against Karadanis and an action against Morrow
Crane Company based on strict products liability.
____________________

1
Karadanis, the lessee, was also an officer in Lake Tahoe Inns, a partner in Cal-Neva, and was the general
foreman on the construction project.
ucts liability. The jury returned a verdict against Karadanis in negligence and found that
Newcomb was ten percent comparatively negligent, by reason of which the award of
$5,050,000.00 was reduced to $4,545,000.00 plus costs. The jury found for Lindon-Alimak
and Morrow Crane Company on the products liability claim. Karadanis appeals from that
judgment. Newcomb cross-appeals from the finding of non-liability on the part of
Lindon-Alimak and Morrow Crane Company and from amendment of the judgment which
reduced the interest thereon from twelve percent per annum to seven percent per annum.
[Headnote 1]
Karadanis first contends that he owed no legal duty to Newcomb, an employee of an
independent contractor, because the unsafe condition was open and obvious. In Sierra Pacific
Power Co. v. Rinehart, 99 Nev. 557, 560, 665 P.2d 270, 272 (1983), we stated:
An employee of a contractor is an invitee of the owner to whom the owner owes a duty
to exercise reasonable care. Davis v. Whitsett, 435 P.2d 592 (Okla. 1967). The owner is
also under a duty to warn an invitee of hidden dangers. This duty does not, however,
extend to obvious dangers. Worth v. Reed, 79 Nev. 351, 384 P.2d 1017 (1963).
Rinehart involved an employee of an independent contractor who fell to his death from a
50-foot cooling tower which the independent contractor had contracted to construct. We
reasoned there that the danger, i.e., the height of the cooling tower, was obvious to all and
that the defendant was not under a duty to warn its invitees of the danger. Id. at 560.
Karadanis contends Rinehart is dispositive of this issue, arguing that as a matter of law
Newcomb should reasonably have noticed the orange color of the mast which supports the
manlift, that he should have been aware he was outside and not still inside the hotel addition,
and that he should have seen or heard the descending manlift. Our review of the record leads
us to conclude otherwise, as there was ample evidence from which the jury could have found
that the hazardous condition was not open and obvious. There was conflicting testimony as to
the level of noise made by the manlift relative to the overall noise level at the busy
construction site and other evidence which would support the conclusion that the danger was
not open and obvious.
[Headnote 2]
Karadanis also contends that there was, as in Rinehart, a dangerous condition inherent in
the construction project. We observed in Rinehart that the dangerous condition complained
of was created during the course, and as a necessary consequence of, building the cooling
tower." Id. at 561 {emphasis added).
of, building the cooling tower. Id. at 561 (emphasis added). The dangerous condition in the
instant case was not a necessary consequence of the construction, but, rather, arose out of the
modification of the manlift by removing a portion of the mandatory safety enclosure.
[Headnote 3]
A land survey determined that the accident occurred on premises leased by the Sundowner
partnership rather than on the actual construction site. Karadanis, however, maintains that he
had relinquished possession and control of that area to H.K.M. Cal-Neva Construction
Company. This was a question of fact, however, and one for the jury to resolve. Although the
testimony was conflicting, we conclude the jury could reasonably have found that Karadanis,
in his capacity as lessee of the Sundowner, maintained such possession and control of the
premises as to justify the jury's verdict.
[Headnote 4]
The jury was given an instruction based on the Restatement of Torts (Second) 318
(1965). That section, in pertinent part, states:
If the actor permits a third person to use land or chattels in his possession . . . he is,
if present, under a duty to exercise reasonable care so to control the conduct of the third
person as to prevent him from intentionally harming others or from so conducting
himself as to create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third person,
and
(b) knows or should know of the necessity and opportunity for exercising such
control.
This is a clear articulation of the duties of a possessor of land. The instruction was proper,
and the jury could reasonably have found liability based on it.
We have carefully considered the remaining contentions of error on both appeal and
cross-appeal and conclude that they do not constitute error when viewed either individually or
cumulatively. Accordingly, we hereby order the judgment of the trial court, in all respects,
affirmed.
____________
101 Nev. 201, 201 (1985) United States v. Hood
THE UNITED STATES OF AMERICA, DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Appellant, v. DELOS W. HOOD, Respondent.
No. 15468
April 26, 1985 699 P.2d 98
Appeal from judgment awarding respondent attorney's fees and costs. Second Judicial
Property owner brought quiet title action after Internal Revenue Service asserted a tax lien
on equitable interest of purchaser, although purchaser's interest was nonjudicially forfeited
after default on executory land sale contract. The district court entered judgment against
Internal Revenue Service, and Service appealed. The Supreme Court held that statute
allowing quiet title actions against the United States also waived sovereign immunity to allow
award of costs and attorney fees.
Affirmed.
Lamond R. Mills, United States Attorney, Shirley Smith, Assistant United States Attorney,
Reno, Nevada; Glen L. Archer, Jr., Assistant Attorney General, Michael L. Paup, William S.
Estabrook and Bruce R. Ellisen, Attorneys, Tax Division, Department of Justice,
Washington, D.C., for Appellant.
Cal Hoover, Reno, for Respondent.
1. Internal Revenue.
Notice is not required to be given to United States for nonjudicial forfeiture of purchaser's interest in real
property lost under executory land sale contract, although tax lien exists. 26 U.S.C.A. 7425(b).
2. United States.
The United States, as sovereign, is immune from suit in absence of its consent to be sued.
3. United States.
Consent of the United States to waive sovereign immunity cannot be implied but must be unequivocably
expressed by Congress; terms of its consent to be sued in any court define that court's jurisdiction to
entertain the suit.
4. United States.
Costs and attorney's fees cannot be awarded against the United States absent a specific waiver of
sovereign immunity.
5. United States.
Statute waiving sovereign immunity of the United States in actions for quieting title, allowing award of
costs as enumerated in another section, does not incorporate the restricting jurisdictional language found in
that section since to do so would render the language superfluous, the reference was only for purpose of
setting forth costs which could be awarded and not to limit waiver of sovereign immunity. 28 U.S.C.A.
1920, 2410, 2412(a)(b).
6. United States.
Costs and attorney fees were awardable against the United States in a quiet title action brought by
individual seeking to remove federal tax lien from property which United States asserted had attached to
purchaser's equitable interest, which allegedly was not extinguished by nonjudicial forfeiture after
purchaser's default on contract, where United States failed to prevail in its assertions, which it proceeded
with despite adverse rulings in other jurisdictions. 26 U.S.C.A. 7425(b); 28 U.S.C.A. 1920, 2410,
2412, 2412(a)(b).
7. United States.
Costs and attorney fees incurred by appellee could be awarded against the United States for having made
a frivolous appeal, after it appealed award of costs and attorney fees against it in quiet title action, where
statute plainly gave state court authority to award them. 28 U.S.C.A. 1920, 2412.
OPINION
Per Curiam:
This appeal addresses the issue of whether an award of attorney fees and costs may be
awarded against the United States when the suit is brought in a state court. Appellant
contends that sovereign immunity, with respect to attorney fees and costs, has not been
waived so as to permit such an award. We disagree. For the following reasons we conclude
the district court's award was proper.
Delos W. Hood (Hood) owned certain real property situated in Reno, Nevada. On March
28, 1979, Hood sold the property to Charles R. Silver (Silver) and Linda Province (Province)
using an executory land sale contract. Pursuant to the terms of the contract and accompanying
escrow instructions, legal title to the property would not pass to the purchasers until the entire
balance of the contract price, secured by a first deed of trust encumbering the property, was
paid in full by the purchasers. The contract further provided that upon default the purchasers
would relinquish all rights under the agreement and that all monies paid by the purchasers
would be considered rent for the use of the property to the time of default and as settled and
liquidated damages.
Beginning in November 1980, and thereafter, Silver and Province defaulted under the
terms of the contract by failing to make timely monthly payments. In May 1981, Province
conveyed her interest in the property to Silver.
On October 30, 1981, the United States assessed a federal tax deficiency against Silver in
the amount of $84,415.82. Thereafter, on November 5, 1981, the United States recorded with
the county recorder of Washoe County, Nevada, a notice of federal tax lien against Silver
based upon the unpaid taxes.
Hood mailed a notice and demand to Silver and Province on November 18, 1981, advising
them to cure their default within 35 days or face forfeiture of their interest in the property.
The default was not cured and on January 13, 1982, Silver's interest in the property was
extinguished by a nonjudicial forfeiture and recordation of a quitclaim deed from Silver and
Province to Hood.
Hood had no actual notice of the federal tax lien against Silver until it was disclosed in a
preliminary title report on December 31, 1981. Hood resorted to administrative procedures
promulgated by the IRS in an attempt to remove the lien. Hood was denied relief and was
advised that the IRS was in search of a good test case on which to determine the validity of
the loss of its lien through forfeiture under executory land sale contracts.
The United States asserted that the lien attached to Silver's equitable interest in the
property and wasn't extinguished by the nonjudicial forfeiture because Hood had failed to
give notice of the forfeiture to the United States. The United States based its position upon
the Federal Tax Lien Act of 1966, 26 U.S.C. 7425(b), which provides that when the United
States has or claims a tax lien against property . . . a sale . . . made pursuant to an instrument
creating a lien on such property, pursuant to a confession of judgment on the obligation
secured by such an instrument, or pursuant to a nonjudicial sale under a statutory lien on such
property . . . shall be made subject to the tax lien if notice of the sale is not given in writing
by certified or registered mail or by personal service to the Secretary of the Treasury not less
than twenty-five days prior to the sale.
Prior to filing his quiet title suit, Hood advised the IRS of recently published opinions of
the federal courts directly addressing that issue. See Hedlund v. Brellenthin, 520 F.Supp. 81
(W.D. Wash. 1981); United States v. Wharton, 514 F.2d 406 (9th Cir. 1975). In addition,
approximately one week prior to trial the United States Circuit Court for the Ninth Circuit
entered a decision in Brookbank, Inc. v. Hubbard, 712 F.2d 399 (1983), affirming its prior
position in Runkel v. United States, 527 F.2d 914 (9th Cir. 1975), and that of Hedlund. These
cases were diametrical to the government's position and held that a forfeiture of a real estate
contract was not a sale of property within the meaning of 26 U.S.C. 7425(b).
Notwithstanding this information, the IRS sought a decision from a Nevada court, thus
creating a Nevada precedent.
The district court, as would be expected, rejected the United States' argument and held that
the instant case did not involve a nonjudicial sale of property within the meaning of Section
7425; therefore, notice of the forfeiture was not required.
Accordingly, the court entered the judgment quieting Hood's title in the property. The court
also provided that Hood receive judgment for his costs and reasonable attorney's fees. Judge
Barrett ruled that the United States was not substantially justified, or at all, in requiring . . .
[Hood] to expend time, effort and money to protect his property rights. Moreover, [i]f ever
there were a case in which a governmental party should be required to reimburse an
individual for costs and attorney's fees, this is it.
[Headnote 1]
The United States is not challenging the district court's decision in the underlying quiet
title action. By not appealing the substantive issue, the IRS has avoided the establishment of a
Nevada precedent contrary to its position, thereby preserving the potential for a similar action
against another property owner in what the IRS might hope to be a more receptive forum. We
therefore note in this opinion that notice in this type of situation is not necessary and to
commence litigation for lack of such notice is improper.
The United States is, however, challenging the district court's jurisdiction to award
attorney's fees and costs to respondent. The United States contends that sovereign immunity
was not waived so as to permit such an award. An examination of Title 28 reveals the
infirmity of appellant's position.
[Headnotes 2-4]
It is recognized that the United States, as sovereign, is immune from suit in the absence of
its consent to be sued. United States v. Testan, 424 U.S. 392, 399 (1976). Moreover, the
waiver of sovereign immunity cannot be implied but must be unequivocally expressed by
Congress. Thus, the terms of its consent to be sued in any court define that court's jurisdiction
to entertain the suit. Id. Accordingly, it is well settled that costs and attorney's fees cannot be
awarded against the United States absent a specific waiver of sovereign immunity.
Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983).
[Headnote 5]
Sovereign immunity is waived by the United States in an action for quiet title pursuant to
28 U.S.C. 2410, which provides in relevant part as follows:
(a) Under the conditions prescribed in this section and section 1444 of this Title for the
protection of the United States, the United States may be named as a party in any civil
action or suit in any district court, or in any state court having jurisdiction of the subject
matter(1) to quiet title to, real or personal property on which the United States has or
claims a mortgage or other lien.
Continuing, 28 U.S.C. 2412(a) specifically provides that any court having jurisdiction of
such action brought by or against the United States, may award costs as enumerated in 28
U.S.C. 1920. 28 U.S.C. 2412(b) clearly provides that any court having jurisdiction of
such action may award reasonable attorney fees and expenses to the prevailing party in any
civil action brought by or against the United States. As stated earlier, section 2410 clearly
gives the state court, being an appropriate forum, jurisdiction to entertain the quiet title
action. Hence, the state court must necessarily be included within the language of any court
having jurisdiction. (Emphasis added.)
The United States takes the position that when section 2412 made reference to 1920
concerning allowable costs that may be awarded, that it also incorporated the prefatory
language of 1920. Section 1920 utilizes the language any court of the United States, as
opposed to any court having jurisdiction. The former phrase is defined in 28 U.S.C. 451
as follows:
As used in this title:
The term court of the United States includes the Supreme Court of the United
States, courts of appeals, district courts constituted by Chapter 5 of this title, including
the Court of Claims, the Court of Customs and Patent Appeals, the Customs Court and
any court created by Act of Congress the judges of which are entitled to hold office
during good behavior.
This definition thus indicates courts of the United States are Article III courts. Hence, the
United States contends that inasmuch as the district court was not an Article III court, it could
not award costs against the United States. Moreover, the United States contends it would be
anomalous to hold that attorney's fees and other expenses could be awarded on the authority
of Sections 2412(b) and (d), if the court has no authority to award costs under 2412(a). See
Bowen v. C.I.R., 706 F.2d 1087 (11th Cir. 1983).
Unlike Bowen, we do not view the words as enumerated in 1920 as incorporating the
restricting jurisdictional language also found in that section. To so hold would render the
language in 2412in any court having jurisdiction superfluous. We are convinced that
reference to 1920 was only for the purpose of setting forth the costs which could be
awarded and not to limit the waiver of sovereign immunity. Indeed, it would be an injustice to
deprive a prevailing party of attorney fees and costs merely because that party chose to litigate
in a state court, as specifically authorized by 2410, as opposed to a federal court.
1
[Headnotes 6, 7]
____________________

1
Moreover, it appeared from the argument of counsel that respondent was actually encouraged by appellant
to file suit in state court. Such conduct, if true, makes appellant's position on appeal all the more unbecoming.
[Headnotes 6, 7]
The language is plain and clearly gives the state court authority to award attorney fees and
costs. Accordingly, we hold that the appeal of this issue was frivolous and therefore order
appellant to pay costs and reasonable attorney fees incurred by Hood as a result of this appeal.
The district court's decision is hereby affirmed.
____________
101 Nev. 206, 206 (1985) Neumann v. Standard Fire Ins.
JEFFREY C. NEUMANN, CHARLES F. NEUMANN and HELEN J. NEUMANN,
Appellants, v. THE STANDARD FIRE INSURANCE COMPANY OF HARTFORD,
CONNECTICUT, Respondent.
No. 15544
April 26, 1985 699 P.2d 101
Appeal from summary judgment in favor of Standard Fire Insurance Company of Hartford,
Connecticut. Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Insureds contended that they were entitled to stack uninsured motorist coverages since
they had two vehicles insured under policy. Insurer disagreed. The district court entered
summary judgment in favor of the insurer. Insureds appealed. The Supreme Court held that:
(1) original uninsured motorist policy, coupled with amendment, did not produce clear
provision preventing stacking of uninsured motorist coverage where amendment mislabeled
and mislettered portions of amendment intended to correspond with original policy so that
insureds could have reasonably concluded that amendment did not apply to policy and
ambiguities were to be construed against insurer, and (2) insurer did not comply with
requirements of statute governing validity of anti-stacking provisions in uninsured motorist
policies where anti-stacking language was no more prominent than remainder of amendment
and where insurer effectively directed insureds' attention away from restricting language;
thus, insurer's attempt to prevent stacking failed.
Reversed.
Durney & Brennan, Reno, for Appellants.
Hibbs, Roberts, Lemons & Grundy, Reno, for Respondents.
Galatz, Earl & Catalano and Daniel F. Polsenberg, Las Vegas, for Amicus Curiae.
1. Insurance.
Ambiguities in insurance contract will be construed against drafter.
2. Insurance.
Whether there is ambiguity in insurance contract must be viewed from standpoint of layman, rather than
lawyer.
3. Insurance.
Original uninsured motorist policy, coupled with amendment, did not produce clear provision preventing
stacking of uninsured motorist coverage where amendment mislabeled and mislettered portions of
amendment intended to correspond with original policy so that although insureds might have been able to
divine result intended, i.e., prohibition against stacking of uninsured motorist benefits, insureds could also
have reasonably concluded that amendment did not apply to policy and ambiguities were to be construed
against insurer. NRS 687B.145, subd. 1.
4. Insurance.
To be clear, as required in order that anti-stacking provision of uninsured motorist policy be valid,
provision should be neither ambiguous nor difficult to understand. NRS 687B.145, subd. 1.
5. Insurance.
Purpose of requirement that anti-stacking provision of uninsured motorist policy be prominently
displayed in policy is to make more apparent to policy holder those provisions which may have adverse
effect on claim under policy and give insured notice of his true coverage. NRS 687B.145, subd. 1.
6. Insurance.
Generally, when insurance policy provision violates statute requiring exceptions to be printed with
prominence, provision will be rendered meaningless and contract will be read as if exceptions were not
there.
7. Insurance.
For purpose of requirement that, in order to be valid, anti-stacking provision of uninsured motorist policy
be prominently displayed, clause attains prominence by being different from its surrounding terms. NRS
687B.124, 687B.145, 687B.145, subd. 2.
8. Insurance.
Although anti-stacking provision in amendment to insurance policy providing uninsured motorist
coverage was in large, bold-faced print and double-spaced, bold-faced headings appeared throughout
policy, and entire amendment had same type and spacing and conformance with rest of policy did not give
anti-stacking policy prominence. NRS 687B.124, 687B.145, 687B.145, subd. 1.
9. Insurance.
In order to be prominently displayed as required in order for anti-stacking provision of uninsured
motorist policy to be valid, attention must be directed toward critical language. NRS 687B.145, subd. 1.
10. Insurance.
Insurer did not comply with requirements of statute governing validity of anti-stacking provisions in
uninsured motorists policies where anti-stacking language was no more prominent than remainder of
amendment and where insurer effectively directed insureds' attention away from restricting language; thus,
insurer's attempt to prevent stacking failed. NRS 687B.145, subd. 1.
OPINION
Per Curiam:
This is an appeal from a summary judgment in favor of Standard Fire Insurance of
Hartford, Connecticut (Standard Fire), finding it had complied with NRS 687B.145(1),
thereby preventing the stacking of uninsured motorist coverages. Our examination of the
insurance policy in question and the record persuades us that the trial court erred in its
determination.
Appellant's two automobiles are insured by Standard Fire under the same policy. Appellant
Jeffrey C. Neumann was a resident and family member in the home of appellants Charles F.
and Helen J. Neumann. During the policy period, Jeffrey was seriously injured in an
automobile accident when the vehicle in which he was riding as a passenger was struck by an
uninsured motorist.
Standard Fire has paid the sum of $40,000.00 under the subject policy. According to
Standard Fire, that amount represents the maximum amount owed to appellants. Appellants,
on the other hand, contend they are entitled to stack their uninsured motorist coverages since
two vehicles are insured under the policy. The parties agree that the additional $40,000.00 is
warranted if this appeal is decided against Standard Fire.
Prior to the passage of NRS 687B.145(1),
1
this Court repeatedly held that anti-stacking
provisions contained within automobile policies were void. See Allstate Ins. Co. v. Maglish,
94 Nev. 699, 586 P.2d 313 (1978). With the passage of the above-mentioned statute,
however, the Nevada Legislature provided a means whereby an insurance company could
prevent the stacking of uninsured motorist coverages. Nevertheless, certain criteria had to be
satisfied by an insurer in order to avoid the stacking of coverages.
____________________

1
NRS 687B.145(1) provides as follows:
687B.145 Provisions in policies of casualty insurance: Proration of recovery or benefits between
policies; uninsured motorist coverage.
1. Any policy of insurance or endorsement providing coverage under the provisions of NRS
690B.020 or other policy of casualty insurance may provide that if the insured has coverage Under
NRS 6S7B.145available to him under more than one policy or provision of coverage, any recovery or
benefits may equal but not exceed the higher of the applicable limits of the respective coverages, and the
recovery or benefits must be prorated between the applicable coverages in the proportion that their
respective limits bear to the aggregate of their limits. Any provision which limits benefits pursuant to this
section must be in clear language and be prominently displayed in the policy, binder or endorsement. Any
limiting provision is void if the name insured has purchased separate coverage on the same risk and has
paid a premium calculated for full reimbursement under that coverage.
Under NRS 687B.145(1) there are three prerequisites to the validity of an anti-stacking
provision. First, the limiting provision must be expressed in clear language. Second, the
provision must be prominently displayed in the policy, binder or endorsement. Finally, the
insured must not have purchased separate coverage on the same risk nor paid a premium
calculated for full reimbursement under that coverage. Thus, non-compliance with either of
the first two prerequisites or payment of a double premium, notwithstanding compliance with
the first two prerequisites, will render the limiting provision void.
In an effort to include the anti-stacking provisions of NRS 687B.145 within the original
policy, Standard Fire sent appellants an amendment to the policy. The Amendment reads, in
pertinent part, as follows:
PART CUNINSURED MOTORISTS COVERAGE
* * *
LIMIT OF
LIABILITY
* * *
C. The applicable limit of liability under paragraph A. or B. above is the most we
will pay regardless of the number of:
1. Covered persons;
2. Claims made;
3. Vehicles or premiums shown in the Declaration; or
4. Vehicles involved in the auto accident.
Standard Fire contends that the above-quoted endorsement clearly fixes the limit of
liability regardless of the number of vehicles or premiums shown in the Declarations. We
disagree.
[Headnotes 1, 2]
While the amendatory language may appear clear on its face, this case involves the use of
an amendment to an original policy as opposed to that of a single integrated document. Thus,
in order to determine the actual clarity of the amendment and its language, a comparison of
the original policy with the amendment is necessary. This Court has a well-established policy
of construing ambiguities in insurance contracts against the drafter. Yosemite Ins. Co. v. State
Farm, 98 Nev. 460, 653 P.2d 149 (1982). Moreover, the ambiguity must be viewed from the
standpoint of a layman, rather than a lawyer. See 2 Couch on Insurance 2d, 15.84 (1984).
The amendment prefaces the changes, relevant to this appeal, by labeling the area of
concern as PART C. UNINSURED MOTORISTS COVERAGE. The original policy, to
which the amendment supposedly applies, has neither a Part C nor such a caption. The
original policy has only a section titled Protection Against Uninsured Motorists."
Continuing, while there is a "Limits of Liability" section in the original policy, there is no
paragraph "C.," but only a paragraph "{c)."
Against Uninsured Motorists. Continuing, while there is a Limits of Liability section in
the original policy, there is no paragraph C., but only a paragraph (c). Also, the original
policy does not contain paragraphs A. and B., but only paragraphs (a) and (b). In
fact, the only capital letters in the original policy appear on the Declarations page and are not
references to paragraphs.
2
.
The amendment resulted in confusion rather than clarification. The amendment mislabeled
and mislettered those portions of the amendment intended to correspond with the original
policy. While appellants, through an exercise of deduction and elimination, may have been
able to divine the result intended by Standard Fire, such a task was certainly not required nor
should be expected of them. Indeed, given the consistent misdirections of the amendment, an
insured could reasonably conclude the amendment did not apply to his policy.
[Headnotes 3, 4]
The original policy, coupled with the amendment, did not produce a clear provision
preventing the stacking of uninsured motorist coverages. Any ambiguity must necessarily be
construed against Standard Fire. To be clear the provision should be neither ambiguous nor
difficult to understand. The procedure set forth in NRS 687B.145 was not followed.
[Headnotes 5, 6]
NRS 687B.145(1) also requires that the anti-stacking provision be prominently displayed
in the policy. The purpose of this requirement is to make more apparent to a policy holder
those provisions which may have an adverse effect on a claim under the policy, and to give
him notice of his true coverage. 36 A.L.R.3d 464, 469. It is generally held that when a policy
provision violates a statute requiring exceptions to be printed with prominence, the provision
will be rendered meaningless and the contract will be read as if the exception were not there.
36 A.L.R.3d 464, 474.
It is Standard Fire's position that the bold print, large type, and double spacing of their
amendment prominently displayed the anti-stacking language. Under the facts of this case, we
hold to the contrary.
In LaDuke v. State Farm Mutual Automobile Ins. Co., Civil LV-82-464-RDF (D.Nev.
Aug. 23, 1983), Judge Foley held: NRS 6S7B.145{1) clearly requires that the
"anti-stacking" provisions must be printed in a manner such that the provision is more
readily visible to the policy holder than the main body of the endorsement. The manner in
which this is accomplished {e.g., boldface print, larger print, underscoring, etc.) is left to
the [insurer].
____________________

2
Standard Fire has rewritten its insurance policy and the amendment in question clearly applies to the
divisions and subdivisions of that policy. In fact, such amendatory language was included in the new policy
verbatim. It is evident, however, that the amendment did not correspond with the original policy.
NRS 687B.145(1) clearly requires that the anti-stacking provisions must be
printed in a manner such that the provision is more readily visible to the policy holder
than the main body of the endorsement. The manner in which this is accomplished
(e.g., boldface print, larger print, underscoring, etc.) is left to the [insurer].
Standard Fire contends that such a test is erroneous because it requires an anti-stacking
provision to be set out more conspicuously than other provisions which might also have an
adverse effect on a claim under a policy. Thus, it concludes a court may rule that such other
provisions have not been made more apparent to the policy holder and should not, therefore,
be given effect.
[Headnote 7]
Such a test is workable, however, and Standard Fire's contention is without merit.
Anti-stacking language is required by the statute to have greater prominence than other
provisions. The basic requirements for an insurance policy are already set forth in NRS
687B.124, which mandates a certain size print and fundamental readability. An anti-stacking
clause must have greater prominence than the balance of the policy language; otherwise, the
terms of NRS 687B.145(1) would be superfluous. In other words, a clause attains prominence
by being different from its surrounding terms.
[Headnotes 8, 9]
In the instant case, while the subject portion of the amendment was in large, bold-faced
print and double-spaced, bold-faced headings appeared throughout the policy and the entire
amendment has the same type and spacing. Conformance with the rest of the policy does not
give it prominence. In fact, the section of the amendment which addresses uninsured motorist
coverage emphasizes, through the use of a darker, bolder type, Covered persons, thereby
drawing attention away from the critical language of vehicles or premiums shown in the
Declaration. To be prominently displayed attention must be directed toward the critical
language.
[Headnote 10]
The argument that no clause should be made more prominent than another nullifies or
disregards the legislative requirement and must therefore be rejected. The anti-stacking
language in this case was no more prominent than the remainder of the amendment.
Moreover, Standard Fire effectively directed appellants' attention away from the restricting
language. As a result, Standard Fire has not complied with the requirements of NRS
687B.145 and its attempt to prevent stacking must fail.
We have considered the arguments asserted both in the briefs and before this Court
concerning whether the named insured has purchased separate coverage on the same risk and
has paid a premium calculated for full reimbursement under that coverage. While there is
some evidence before us which indicates a double premium was in fact paid, there are,
nevertheless, essential facts lacking which are necessary to reach a proper determination of
this issue. We therefore express no opinion on the issue of the double premium payment at
this time.
Notwithstanding our inability to resolve the double premium issue, we do conclude the
policy amendment was neither clear nor prominently displayed. Standard Fire did not comply
with NRS 687B.145(1) and therefore stacking was permitted.
Accordingly, we reverse the lower court's decision.
____________
101 Nev. 212, 212 (1985) Wilford v. Wilford
HAZEL M. WILFORD, Appellant v.
OLEN J. WILFORD, Respondent.
No. 15599
April 26, 1985 699 P.2d 105
Appeal from decree of divorce, Second Judicial District Court, Washoe County; James J.
Guinan, Judge.
On appeal from decree of divorce by the district court the Supreme Court held that: (1)
amount of preliminary support arrearages was question for district court; (2) court adequately
considered Buchanan factors in determining alimony award; but (3) evidence did not support
finding that marital community's interest in construction company was zero.
Affirmed in part; reversed and remanded in part.
John Ohlson, Reno, for Appellant.
Beasley, Hamilton & Holden, Reno, for Respondent.
Where district court, sitting without jury, makes factual determination on basis of conflicting evidence, its
determination will not be disturbed unless clearly erroneous.
2. Divorce.
In divorce proceeding, in which conflicting evidence was presented regarding amount of preliminary
support arrearages, amount of arrearages award was question for district court.
3. Divorce.
Alimony award, which was based on findings that both parties contributed their efforts to acquisition of
community property during marriage, that husband would continue to have capacity to earn substantial
income based on his age, occupation and health, but that wife was presently unable to support herself, was
properly based on consideration of Buchanan factors.
4. Divorce.
District court is required to make specific findings of fact sufficient to indicate basis for its ultimate
conclusions with respect to disposition of community property in divorce. NRCP 52(a).
5. Divorce.
When valuing marital community's interest in corporation for purpose of disposition in divorce,
shareholders' equity in corporation is ultimate value to be determined.
6. Divorce.
Husband's testimony that marital community's construction company's accounts payable exceeded
accounts receivable and that, if everything were sold he hoped company's assets would cover its liabilities,
was not sufficient to support finding that shareholders' equity in company, and thus community's interest,
was zero, in view of company's financial statement, which indicated that net stock value of company
exceeded $100,000, requiring reversal and remand.
OPINION
Per Curiam:
This is an appeal from a decree of divorce awarding spousal support and dividing the
community property assets. The appellant, Hazel Wilford, contends the district court erred by:
(1) awarding an insufficient amount for arrearages in preliminary support, (2) awarding
alimony that was insufficient in amount and duration, and (3) determining that the
community-owned business was valueless and awarding the business exclusively to
respondent, Olen Wilford. We agree with the final contention and therefore reverse and
remand the matter to the district court. We reject the first two contentions, however, and
therefore affirm the judgment in part.
Hazel and Olen Wilford were married on May 3, 1963. Their two sons had reached the age
of majority at the time of the divorce. During the marriage, Hazel was employed in various
capacities, including employment as a waitress for a short period and as a housekeeper. When
the parties' business, Olen J. Wilford Construction Company, first began operating. Hazel
worked as its sole clerical employee. She continued to assist with the business until she and
Olen separated.
Hazel received her high school diploma in 1975 after returning to school, and after the
separation, she enrolled at the community college.
college. At the time of trial, however, she was unemployed. Olen is a licensed general
contractor. He operates the Wilford Construction Company and another company which
installs cabinets and counters.
After trial, the district court awarded Hazel $4,640.72 in preliminary support arrearages
and alimony of $1,000 per month for two years and $500 per month for the next two years.
The district court found that the community-owned business, the construction company, was
valueless and awarded it exclusively to Olen. This appeal followed.
[Headnotes 1, 2]
Hazel first contends the district court erred by awarding an insufficient amount for
preliminary support arrearages. Our review of the record reveals that conflicting evidence was
presented at trial regarding the amount of the arrearages. Where, as here, the district court,
sitting without a jury, makes a factual determination on the basis of conflicting evidence, its
determination will not be disturbed unless clearly erroneous. Ormachea v. Ormachea, 67 Nev.
273, 280, 217 P.2d 355, 359 (1950).
Hazel next contends the district court erred in determining the amount of alimony by
failing to consider adequately the factors set forth in Buchanan v. Buchanan, 90 Nev. 209,
523 P.2d 1 (1974). Those factors include the following: the financial condition of the parties;
the nature and value of their respective property; the contribution of each to any property held
by them as tenants by the entirety or as joint tenants; the duration of the marriage; the
husband's income, earning capacity, age, health, and ability to labor; and the wife's income,
age, health, station, and ability to earn a living. Id. at 215, 523 P.2d at 5; Forrest v. Forrest, 99
Nev. 602, 668 P.2d 275 (1983).
[Headnote 3]
The district court's findings of fact indicate that it did consider the factors set forth in
Buchanan, supra, in making its alimony award. Specifically, the court found that during their
marriage both parties contributed their efforts to the acquisition of community property. The
court also found that Olen would continue to have the capacity to earn substantial income
based on his age, occupation and health, but that Hazel was presently unable to support
herself. Further, it cannot be assumed that the district court ignored its division of the
community property assets in considering the nature and value of the property of each party.
We conclude that the lower court adequately considered the factors enunciated in Buchanan
in determining the alimony award in this case, and we therefore affirm the award. Cf. Forrest
v. Forrest, supra (remand for reconsideration of alimony issue where no indication that
Buchanan factors were considered).
[Headnote 4]
The final contention in this appeal involves the court's valuation of the construction
company, a Nevada corporation, which is a community property asset of the parties. Hazel
asserts that the district court erred in finding that the construction company was valueless and
in awarding it exclusively to Olen. We agree. The lower court's finding states that the net
worth of the business is zero, but fails to set forth how this determination was made. The
district court, however, is required to make specific findings of fact sufficient to indicate the
basis for its ultimate conclusions. NRCP 52(a); Robison v. Robison, 100 Nev. 668, 673, 691
P.2d 451, 455 (1984).
[Headnote 5]
During the November, 1983, trial, Hazel introduced into evidence the construction
company's financial statement, which was apparently prepared by the company's accounting
firm. The statement was current through February 28, 1983. According to the statement, the
net stock value of the company was $105,449. The shareholders' equity in the corporation is
the ultimate value to be determined when valuing the community's interest in the corporation.
Robison v. Robison, 100 Nev. at 672, 691 P.2d at 455. When questioned regarding the
financial statement's accuracy, Olen testified only that he did not know if it was accurate at
that point in time because he had not received an updated statement. He conceded that the
$700,000 gross income figure contained in the financial statement for the preceding ten
month period was probably correct.
1
Olen also testified that the company's accounts payable
at the time of trial exceeded the accounts receivable by approximately $20,000. He further
stated that, if everything was sold, he hoped the company's assets would cover its liabilities.
[Headnote 6]
This testimony, however, does not constitute substantial evidence upon which the district
court could conclude that the shareholders' equity in the company, and thus the community's
interest, was zero. Due to the lack of substantial evidence to support the district court's
valuation of the company's worth and the failure of the court to indicate the factual basis for
its valuation of corporate assets, we reverse and remand this case to the district court for
further proceedings. On remand, the district court shall determine the value of the corporate
asset, set forth the basis for its valuation, and enter judgment accordingly.
____________________

1
We note that the financial statement was apparently based upon information provided by Olen.
____________
101 Nev. 216, 216 (1985) Bly v. Mid-Century Ins.
TIMOTHY BLY, Appellant, v. MID-CENTURY
INSURANCE COMPANY, Respondent.
No. 15636
April 26, 1985 698 P.2d 877
Appeal from an order granting defendant's motion for summary judgment and denying
plaintiff's counter-motion for summary judgment; Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
In action for motor vehicle policy proceeds, the district court rendered summary judgment
for insurer. The Supreme Court held that motorcycle buyer, who received physical possession
and control of motorcycle but who did not receive certificate of title, which remained in
seller's possession to secure final payment, was owner of motorcycle, and thus, could not
recover proceeds under omnibus clause of seller's motor vehicle liability policy, despite
seller's failure to comply with registration statutes.
Affirmed.
Richard T. Bourgault, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, and B. Alan McKissick, Las Vegas, for
Respondent.
1. Insurance.
Motorcycle buyer, who received physical possession and control of motorcycle but who did not receive
certificate of title, which remained in seller's possession to secure final payment, was owner of
motorcycle rather than permissive user, and thus, could not recover proceeds under omnibus clause of
seller's motor vehicle liability policy, despite seller's failure to comply with registration statutes. NRS
482.085, 482.400, subd. 1, 485.010 et seq., 485.3091, subd. 2(b).
2. Automobiles.
Failure to comply with Nevada's registration statute does not invalidate sale of motor vehicle. NRS
482.400, subd. 1.
OPINION
Per Curiam:
Jimmie Chituras (Chituras) was the owner of a Kawasaki motorcycle which was insured
under a policy issued by respondent Mid-Century Insurance Company (Mid-Century).
Chituras entered into a sales agreement with appellant Timothy Bly (Bly) for the sale of the
motorcycle and on March 26, 1982, Bly gave Chituras partial payment toward the total
purchase price. At that time Bly received physical possession and control of the
motorcycle.
time Bly received physical possession and control of the motorcycle. Chituras, however, did
not execute the certificate of title and transfer document to Bly, as required by NRS
482.400(1). Instead, the certificate remained in Chituras's possession to secure the final
payment due on April 30, 1982.
At the time the parties transferred possession of the motorcycle, it was agreed that Bly
would obtain insurance on the vehicle. Bly applied for and was issued a policy by Northland
Insurance Company. That policy provided uninsured motorist benefits in the sum of
$15,000.00 On April 7, 1982, Chituras contacted respondent Mid-Century Insurance
Company and requested that a new motorcycle be substituted in place of the Kawasaki
motorcycle listed in his insurance policy. A change endorsement was issued, and Chituras's
new motorcycle became the described vehicle under the policy. At the same time, Chituras
applied for 30 days temporary coverage on the Kawasaki, which was then in the possession
and control of Bly. Mid-Century granted temporary coverage on the motorcycle for one
month for the flat fee of $18.00 Chituras never informed Mid-Century that he had already
transferred possession of the Kawasaki to Bly.
On April 10, 1982, while driving the Kawasaki, Bly was involved in a motor vehicle
accident with an uninsured motorist. His damages exceed the sum of $30,000.00. Bly was
paid $15,000.00 in uninsured motorist benefits by Northland Insurance. He also submitted a
claim to Mid-Century for uninsured motorist coverage under Chituras's policy, claiming that
he was a permissive user of the Kawasaki. Once Mid-Century learned of the transfer of the
motorcycle pursuant to the sales agreement, the $18.00 premium for the temporary policy was
returned to Chituras and accepted by him. Mid-Century then denied the claim, contending
that Bly was the actual owner of the vehicle, and, therefore, not covered as a permissive user.
A declaratory relief action was filed requesting a judicial determination of the rights of the
parties. By respective motions for summary judgment Mid-Century sought a declaration that
its policy did not apply, while Bly sought a declaration that it did. Mid-Century's motion for
summary judgment was granted and that of Bly was denied. It is from this order that Bly
appeals.
NRS Chapter 485 is entitled the Motor Vehicle Safety Responsibility Act. That act
requires that an owner's motor vehicle liability policy:
[i]nsure the person named therein and any other person, as insured, using any such
motor vehicle or motor vehicles with the express or implied permission of the named
insured, against loss from the liability imposed by law for damages arising out of the
ownership, maintenance or use of such motor vehicle. . . .
NRS 485.3091(2)(b). Such a provision is commonly known as the omnibus clause in
liability insurance contracts. Vigoren v. Transnational Ins. Co., 86 Nev. 810, 482 P.2d 96
(1970) (Zenoff, J., dissenting). The omnibus clause is a creation resulting from modern
desires to protect innocent victims of automobile accidents. . . . The only requirement is that
the insuring party be the owner of the vehicle. Id. at 814-15, 482 P.2d at 98.
[Headnote 1]
In this case we address the liability of an insurance company, under an omnibus clause, for
an accident which occurred while the vehicle was being driven by a conditional vendee of the
insured. The district court found that Bly, as conditional vendee, could not recover under the
omnibus clause of the Mid-Century policy. We agree.
NRS 482.085 defines owner for purposes of the Motor Vehicle Safety and
Responsibility Act as:
a person who holds the legal title of a motor vehicle, or in event a motor vehicle is the
subject of an agreement for the conditional sale or lease thereof . . . then such
conditional vendee or lessee . . . shall be deemed the owner for the purpose of this
chapter.
NRS 482.085 (emphasis added). For the purposes of this act, Bly, as conditional vendee, is
deemed the owner of the motorcycle. Bly contends, however, that Chituras's failure to comply
with the registration statutes invalidated the conditional sale and prevented the passing of
ownership. This contention is without merit.
[Headnote 2]
In some states, failure to comply with motor vehicle registration requirements voids the
transaction and invalidates a conditional sale between a vendor and vendee.
1
In other states,
the registration statutes are more similar to Nevada's in that they do not specify that a
purported sale is void for noncompliance.
2
Failure to comply with Nevada's registration
statute does not invalidate such a transaction. The infraction [may be] a misdemeanor but
the sale is not affected."
____________________

1
See Kansas Stats. Annot., 8-135(c)(7), which states:
The sale of a vehicle required to be registered under the laws of this state, without assignment of the
certificate of title, is fraudulent and void. . . .;
see also California Vehicle Code 5600.

2
See Indiana Stats. Annot., 9-1-2-2 (1978); Rev. Code of Wash., Annot., 46.12.101 (1984).
meanor but the sale is not affected. Vigoren, 86 Nev. at 815, 482 P.2d at 99 (Zenoff, J.,
dissenting).
3

We hold that Chituras's failure to comply with the registration statutes does not invalidate
the conditional sale; and Bly, as conditional vendee, is deemed to be the owner of the
motorcycle. As such, Bly is unable to recover under the omnibus clause of the Mid-Century
policy.
4

Accordingly, the order granting summary judgment in favor of Mid-Century is affirmed.
____________________

3
The Facts in Vigoren are similar to the facts in the present case. A conditional sales agreement existed
between two people, with the seller retaining title and the buyer receiving possession of the car. While the buyer
was operating the vehicle, a passenger was injured. The passenger submitted a claim for insurance under the
seller's insurance policy. On appeal, the majority believed a material issue of fact existed as to whether the seller
had informed the company of the conditional sale. The court reversed the summary judgment and remanded for a
trial on the issue of waiver. The majority never reached the issue which Justice Zenoff addressed, but instead,
stated that once the waiver issue was resolved further legal questions of coverage will emerge and must then be
resolved. 86 Nev. at 813, 482 P.2d at 97. Justice Zenoff disagreed with the majority's decision on waiver and
went on to address those further legal questions.

4
Contrary to Bly's contention, this opinion in no way limits the affect or application of our holding in United
States Fidelity v. Fisher, 88 Nev. 155, 494 P.2d 54 (1972).
____________
101 Nev. 219, 219 (1985) Frias v. Valle
CHARLES FRIAS, dba ABC UNION CAB COMPANY, Appellants, v. AURELIO M.
VALLE and CIPRIANA VALLE, Respondents.
No. 15319
April 26, 1985 698 P.2d 875
Appeal from damages award in a personal injury action. Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
On appeal from judgment rendered by the district court on jury verdict in personal injury
action, the Supreme Court held that erroneous admission of police officer's traffic accident
report, which contained statements of third parties, officer's conclusions as to cause of
accident, and reference to citation issued to one driver, and of evidence of traffic citation and
thermograms without proper foundation and authentication, required reversal.
Reversed.
Paul C. Parraguirre, Las Vegas, for Appellants.
Isabel Fleisher, Las Vegas, for Respondents.
101 Nev. 219, 220 (1985) Frias v. Valle
1. Appeal and Error; Evidence.
In personal injuries action arising from motor vehicle accident, admitting police officer's traffic accident
report, which contained statements of third parties, officer's conclusions as to cause of accident, and
reference to citation issued to one driver, was reversible error, as officer was not qualified to testify as to
who was at fault based on statements of third parties and cursory inspection of scene.
2. Evidence.
In personal injuries action arising from motor vehicle accident, evidence of traffic citation issued to one
driver was inadmissible.
3. Evidence.
In personal injuries action arising from motor vehicle accident, admission of thermograms for purpose of
proving extent of plaintiff driver's soft tissue injuries, authenticated only by testimony of expert who treated
driver for injuries sustained in accident, but who did not order thermograms nor use them in treating driver,
and who first viewed thermograms in hallway outside courtroom just prior to taking stand and identified
thermograms as representing driver's injuries based only on fact that driver's name was affixed to them, was
reversible error. NRS 52.015.
4. Evidence; Witnesses.
In personal injuries action arising from motor vehicle accident, excluding inaccurate wage summaries and
irrelevant impeachment evidence, and admitting statement of defendant driver's supervisor, who, after
arriving on scene, offered money to plaintiff driver to forget about incident, were proper exercises of
discretion.
OPINION
Per Curiam:
Appellant Charles Frias is the owner of the ABC Union Cab Company. Respondents
Aurelio and Cipriana Valle are husband and wife. On February 9, 1981, a cab being driven by
Michael McKnight, and employee of Union Cab, collided with a small pickup truck being
driven by Aurelio Valle. At the time of the accident, Valle was stopped in the left turn lane at
the intersection of Tropicana and Las Vegas Boulevard. McKnight's cab struck the rear of
Valle's truck.
The Valles brought this personal injury action against Charles Frias, dba ABC Union Cab
Company, and a jury awarded them $110,500.00 in damages. This appeal followed.
There was some discrepancy in the witnesses' testimony as to the severity of the impact
and the events immediately following the accident. McKnight, the cab driver, and Officer
Sowder, the highway patrolman who conducted the accident investigation, both said the
accident was minor. Valle's depiction was more dramatic. Apparently, the accident was
neither severe enough to summon an ambulance nor render Valle's vehicle inoperable.
101 Nev. 219, 221 (1985) Frias v. Valle
Valle testified that the force of the impact knocked him unconscious. McKnight testified that
after the initial contact, Valle immediately turned around and looked at him, then got out of
his truck, stepped onto the road divider and complained that now he would be late for work.
[Headnote 1]
Appellant first contends that the trial court erred in admitting Officer Sowder's traffic
accident report into evidence. We agree. The report contained statements of third parties,
Sowder's conclusions as to the cause of the accident and reference to the citation issued to the
cab driver. We conclude the trial court erred by admitting the traffic accident report into
evidence.
[Headnote 2]
It is the function of the trier of fact to decide who and what caused an accident. The
conclusions of Officer Sowder, based upon statements of third parties and a cursory
inspection of the scene, did not qualify him to testify as to who was at fault. Evidence of the
traffic citation was also inadmissible. Ferreira v. General Motors Corp., 657 P.2d 1066, 1069
(HawaiiCt.App. 1983). See also Ingrum v. Tucson Yellow Cab Co., 642 P.2d 868, 872
(Ariz.Ct.App. 1982). By admitting Officer Sowder's traffic accident report into evidence, the
trial court erred.
[Headnote 3]
Appellant next contends that the trial court erred in admitting into evidence thermograms
lacking proper foundation and authentication. We concur. During trial, respondents were
permitted to use thermograms to prove the extent of Aurelio Valle's soft tissue injuries. It was
represented to the court that thermography portrays the variations in infrared energy radiating
from the skin, thus providing visual images of a complainant's injuries. See Archer, S.D. and
Zinn, J.A., Thermograms: Persuasive Tools in Soft-Tissue Injury Cases, 19 Trial, Feb. 1983
at 68, 68.
Respondents called Dr. Rask, a specialist in neurological and orthopedic surgery, to lay
foundation and authenticate the thermograms. Dr. Rask considered himself an expert in the
field of thermography and had treated Valle for back and neck injuries sustained in the
accident. However, Dr. Rask had not ordered the thermograms, nor had he used them in
treating Valle. Additionally, the first time Dr. Rask viewed the thermograms was in a hallway
outside the courtroom just prior to taking the stand.
Dr. Rask testified that the thermograms were taken by Dr. Smith. Neither Dr. Smith nor
anyone from his staff testified as to how or when the thermograms were taken, how they
could be identified, or the condition of the thermographic equipment. No one with personal
knowledge testified as to how, when and in what manner the thermograms were taken.
101 Nev. 219, 222 (1985) Frias v. Valle
one with personal knowledge testified as to how, when and in what manner the thermograms
were taken.
When Dr. Rask was asked how he was able to identify the patient whose thermograms he
was evaluating, he responded that he was able to identify them because they had Valle's name
on them. Dr. Rask did not testify as to how and when Valle's name had been affixed to the
thermograms. Because these thermograms were not authenticated and no proper foundation
was laid for their use in testimony, we conclude their admission in evidence violated NRS
52.0151 and was error.
[Headnote 4]
Lastly, we hold that the lower court properly exercised its discretion in excluding
inaccurate wage summaries and irrelevant impeachment evidence, and in admitting the
statement of the ABC Union Cab Company supervisor who, after arriving on the scene,
offered money to Valle to forget the incident.
Accordingly, the judgment is reversed, and the cause remanded for a new trial.
____________________

1
1. The requirement of authentication or identification as a condition precedent to admissibility is
satisfied by evidence or other showing sufficient to support a finding that the matter in question is what
its proponent claims.
2. The provisions of NRS 52.025 to 52.105, inclusive, are illustrative and not restrictive examples of
authentication or identification which conform to the requirements of this section.
3. Every authentication or identification is rebuttable by evidence or other showing sufficient to
support a contrary finding.
____________
101 Nev. 222, 222 (1985) A 1983 Volkswagen v. County of Washoe
A 1983 VOLKSWAGEN, ID NO. IVWCO179DV63656, LICENSE NO. 2AAB574 (CA),
ITS TOOLS AND APPURTENANCES, Appellant, v. THE COUNTY OF WASHOE,
STATE OF NEVADA, ex rel. WASHOE COUNTY SHERIFF'S DEPARTMENT
CONSOLIDATED NARCOTICS UNIT, Respondent.
No. 15729
May 8, 1985 699 P.2d 108
Appeal from an order of forfeiture. Second Judicial District Court, Washoe County;
Richard C. Minor, Judge.
Appeal was taken from an order of the district court authorizing forfeiture of a vehicle
used in violation of Uniform Controlled Substances Act. The Supreme Court held that: (1)
evidence sustained finding that vehicle was used to transport cocaine for purpose of sale in
violation of Act; and {2) warrantless seizure of vehicle was supported by probable cause.
purpose of sale in violation of Act; and (2) warrantless seizure of vehicle was supported by
probable cause.
Affirmed.
Jack Alian and Robert Bruce Lindsay, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Richard
A. Gammick, Deputy District Attorney, Washoe County, for Respondent.
State must prove case beyond a reasonable doubt before an order of forfeiture may issue under Uniform
Controlled Substances Act. NRS 453.011 et seq.
Although district court erred in employing preponderance of the evidence standard of proof to justify
forfeiture of vehicle used in violation of Uniform Controlled Substances Act, judgment would not be
disturbed where sufficient evidence existed to prove beyond a reasonable doubt that vehicle was used to
transport cocaine for purpose of sale. NRS 453.011 et seq.
To effect a forfeiture under Uniform Controlled Substances Act, state must prove a violation of, not
conviction under, Act, and prove that the vehicle was used to facilitate that violation. NRS 453.011 et
seq., 453.301.
Evidence of sale of cocaine to undercover officer and testimony of owner's accomplice supported beyond
a reasonable doubt the finding that vehicle was used to transport the cocaine and justified forfeiture of
vehicle. NRS 453.011 et seq.
District court's alleged error in finding that forfeited vehicle had been used to transport cocaine from
California to Reno was harmless where sufficient evidence existed to support finding that the vehicle was
used to transport cocaine for purposes of sale in violation of Uniform Controlled Substances Act. NRS
453.011 et seq.
Warrantless seizure of vehicle for forfeiture was supported by probable cause that vehicle was used to
facilitate sale of cocaine where undercover officer knew that vehicle's owner had gone to his car and come
back with cocaine. NRS 453.011 et seq., 453.306, subd. 2(d).
7. Forfeitures.
Illegal seizure of property does not necessarily preclude forfeiture of the property seized.
OPINION
Per Curiam:
[Headnote 1]
This is an appeal from the district court's order authorizing forfeiture of a vehicle used in
violation of the Uniform Controlled Substances Act.
Substances Act. Appellant argues, and we agree, that the state must prove its case beyond a
reasonable doubt before an order of forfeiture may issue. In applying the exclusionary rule to
forfeiture proceedings we have implicitly recognized the quasi-criminal nature of forfeiture
actions. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965) (exclusionary
rule applies to forfeiture proceedings because of quasi-criminal nature of action) cited with
approval in One 1970 Chevrolet v. County of Nye, 90 Nev. 31, 518 P.2d 38 (1974). Proof
beyond a reasonable doubt is therefore appropriate in order that the innocent not be
permanently deprived of their property. Accord State v. Manuel, 426 So.2d 140 (La. 1983).
[Headnote 2]
Although we agree with appellant that the district court erred in employing the
preponderance of the evidence standard of proof, we conclude that there was sufficient
evidence to prove beyond a reasonable doubt that appellant, a 1983 Volkswagen, was used to
transport cocaine for the purpose of sale. Therefore, we decline to disturb the judgment of the
district court.
Mark Stephens, the owner of the Volkswagen, and Henry Renovato sold cocaine to
undercover officer Partyka at the Pioneer Inn in Reno. Renovato testified that he had seen the
cocaine in a blue bag in the Volkswagen the night before the sale. He also testified that he
saw the bag in the Volkswagen when he and Stephens drove to the Pioneer the next day to
effectuate the sale. Stephens and Renovato left the blue bag in the Volkswagen and met Rich
and Vito inside the Pioneer. Unbeknownst to Stephens and Renovato, Vito was actually
undercover Officer Partyka. Stephens left the group twice and each time returned with
cocaine. Before one trip, he stated he was going to the car. After Stephens returned the second
time, he and Renovato sold the cocaine to Partyka.
Stephens was arrested that night and charged with possession and sale of cocaine in
violation of the Uniform Controlled Substances Act. The next day, almost twenty-one hours
later, Partyka went to the parking lot of the Pioneer and seized Stephens' Volkswagen without
a warrant.
[Headnotes 3-5]
To effect a forfeiture under NRS 453.3011 the state must prove {1) a violation of, not
conviction under, the Uniform Controlled Substances Act, NRS 453.011 to 453.551
inclusive, and {2) that the vehicle was used to facilitate that violation.
____________________

1
453.301 Property subject to forfeiture.
The following are subject to forfeiture:
1. All controlled substances which have been manufactured, distributed, dispensed or acquired in
violation of the provisions of NRS 453.011 to 453.551, inclusive.
. . .
5. All conveyances, including aircraft, vehicles or vessels, which
(1) a violation of, not conviction under, the Uniform Controlled Substances Act, NRS
453.011 to 453.551 inclusive, and (2) that the vehicle was used to facilitate that violation.
There was sufficient evidence to prove both elements beyond a reasonable doubt. The sale of
cocaine to Partyka was a violation of the Act, thus satisfying the first element. Renovato's
testimony provided the basis for an inference that the Volkswagen was used to transport the
cocaine to the Pioneer. Thus the second element, that the vehicle was used to facilitate the
sale, was also satisfied.
2
Because a rational trier of fact could have found the essential
elements beyond a reasonable doubt, we refuse to disturb the judgment of the district court.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Koza v. State, 100 Nev. 245, 250, 681 P.2d 44
(1984).
[Headnote 6]
Appellant's remaining contention that the warrantless seizure of the Volkswagen was not
supported by probable cause as required by NRS 453.306(2)(d) is without merit. Warrantless
seizures of property subject to forfeiture are authorized by NRS 453.306(2)(d) where:
The division or other law enforcement agency has probable cause to believe that the
property was used or is intended to be used in violation of the provisions of NRS
453.011 to 453.551, inclusive.
In determining that an officer had probable cause to arrest a suspect for harboring a
fugitive, we equated probable cause with a reasonable belief that the suspect had assisted the
fugitive in evading authorities. Carstairs v. State, 94 Nev. 125, 575 P.2d 927 (1978).
Therefore, we read NRS 453.306(2)(d) in conjunction with NRS 453.301 to require Partyka
to have had a reasonable belief that the Volkswagen was used to facilitate the sale of cocaine.
[Headnote 7]
Although no direct evidence linked the cocaine sold to Partyka to the cocaine Renovato
saw in the blue bag in the car the night before, there was sufficient circumstantial evidence
known to Partyka to support a reasonable belief that the car had been used to transport the
cocaine.
____________________
are used, or intended for use, to transport, or in any manner to facilitate the transportation, concealment,
manufacture or protection, for the purpose of sale, possession for sale or receipt of property described in
subsection 1 . . .

2
Appellant argues that the evidence was insufficient to support the district court's finding that the
Volkswagen had been used to transport the cocaine from California to Reno. If this finding was error, it was
harmless. As discussed above, there was sufficient evidence to support a finding that the Volkswagen was used
to transport cocaine for purpose of sale.
to transport the cocaine. Stephens left the group twice and each time returned with cocaine.
Before one of these trips, he stated he was going to the car. Partyka also knew that appellant
had a car and that the car was parked at the Pioneer Inn where the sale had taken place. We
therefore conclude that the warrantless seizure of the Volkswagen was supported by probable
cause as required by NRS 453.306 (2)(d).
3

Accordingly, we affirm the district court's forfeiture order.
____________________

3
We note in passing that illegal seizure does not necessarily preclude forfeiture of the property seized. See
O'Reilly v. United States, 486 F.2d 208 (8th Cir. 1973) (warrantless seizure of vehicle used three months earlier
to transport controlled substances legal where seizure authorized by forfeiture statute and failure to obtain
warrant not part of deliberate, purposeful and oppressive design for delay) cert. denied, 414 U.S. 1043 (1973).
But see United States v. McCormick, 502 F.2d 281 (9th Cir. 1974) (holding warrantless seizure of vehicle upon
probable cause as authorized by forfeiture statute illegal because exceptions to the warrant requirement do not
apply).
____________
101 Nev. 226, 226 (1985) Edgar v. Wagner
RICHARD T. EDGAR, Appellant, v.
RICHARD WAGNER, Respondent.
No. 16002
May 8, 1985 699 P.2d 110
Appeal from an order granting a motion to dismiss. Sixth Judicial District Court,
Humboldt County; Richard J. Legarza, Judge.
Action was brought against district attorney, seeking damages for deprivation of due
process caused by plaintiff's arrest, incarceration, prosecution against him, and newspaper
publication of arrest. The district court dismissed action, holding that district attorney was
immune from liability for damages, and appeal was brought. The Supreme Court held that
district attorney who allegedly participated in preparation of affidavit supporting issuance of
warrant for person's arrest, with malice and in deliberately structured effort to deprive person
of due process, did not have absolute immunity.
Reversed.
Rupert C. Schneider, Battle Mountain, for Appellant.
Charles W. Spann, Reno, for Respondent.
On review of motion to dismiss action, Supreme Court's task to determine whether challenged pleading
sets forth allegations sufficient to make out elements of right to relief.
On review of motion to dismiss action, allegations in complaint must be taken at face value and must be
construed favorably in plaintiff's behalf.
3. District and Prosecuting Attorneys.
Prosecutor who functions primarily as administrator or investigator is accorded qualified immunity, that
is, protection from liability depends upon showing that prosecutor entertained good faith, reasonable belief
in actions taken in administrative or investigative capacity.
4. Civil Rights.
District attorney who allegedly participated in preparation of affidavit supporting issuance of warrant for
person's arrest, with malice and in deliberately structured effort to deprive person of due process, did not
have absolute immunity from liability. 42 U.S.C.A. 1983.
OPINION
Per Curiam:
Appellant Richard T. Edgar brought this action against respondent District Attorney
Richard Wagner and others under 42 U.S.C. 1983, seeking damages for deprivation of due
process caused by his arrest, incarceration, a prosecution against him and a newspaper
publication of the arrest. Appellant was arrested, incarcerated and charged for violating fish
and game laws; when an error in his identification was discovered, the charges against
appellant were dismissed and the newspaper corrected the report of the arrest.
Appellant alleged in the complaint that respondent assisted an agent of the Nevada
Department of Wildlife in the preparation of an affidavit supporting the issuance of a warrant
for appellant's arrest and . . . [t]he contents of said affidavit . . . demonstrate malice, a
structured deprivation of due process in violation of 42 USCS 1983, and under the laws of
Nevada, a malicious prosecution and false arrest. The district court dismissed the action on
the ground it failed to state a claim upon which relief could be granted because the
preparation of the affidavit was a prosecutorial function and respondent therefore was
immune from liability for damages. NRCP 12(b).
On appeal, appellant contends the district court erred in dismissing the case because the
complaint alleged facts which could entitle appellant to relief. We agree.
[Headnotes 1, 2]
On review of a motion to dismiss, our task is to determine whether or not the challenged
pleading sets forth allegations sufficient to make out the elements of a right to relief. Crucil v.
Carson City, 95 Nev. 583, 600 P.2d 216 (1979); cf. Stump v. Sparkman, 435 U.S. 349, 354
(1978). In making this determination, the allegations in the complaint must be taken at face
value," California Motor Transport Co. v.
value, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515 (1972), and
must be construed favorably in the plaintiff's behalf. The complaint cannot be dismissed for
failure to state a claim unless it appears beyond a doubt that the plaintiff could prove no set of
facts which, if accepted by the trier of fact, would entitle him to relief. Conley v. Gibson, 355
U.S. 41, 45-46 (1957).
[Headnote 3]
The resolution of the motion to dismiss turned upon the scope and application of Imbler v.
Pachtman, 424 U.S. 428 (1976). In that case, the Supreme Court held that state prosecutors
were immune from liability where the acts complained of were intimately associated with
the judicial phase of the criminal process. Id. at 430-431; see also County of Washoe v.
District Court, 98 Nev. 456, 652 P.2d 1175 (1982). A prosecutor who functions primarily as
an administrator or investigator is accorded qualified immunity, that is, protection from
liability depends upon a showing that the prosecutor entertained a good faith, reasonable
belief in actions taken in an administrative or investigative capacity. See Beard v. Udall, 648
F.2d 1264, 1271 (9th Cir. 1981); Briggs v. Goodwin, 569 F.2d 10, 16 (D.C. Cir. 1977);
Stevens v. McGimsey, 99 Nev. 840, 673 P.2d 499 (1983).
1

[Headnote 4]
Assuming, as we must at this juncture, respondent participated in the preparation of the
affidavit with malice, and in a deliberately structured effort to deprive appellant of due
process, the allegations of the complaint state a claim which, if accepted by the trier of fact,
could entitle appellant to relief. The district court erred in concluding such an act was a
prosecutorial function cloaked with absolute immunity. Respondent cites no direct authority
for the contention that the behavior at issue here falls within the scope of the absolute
immunity endorsed by Imbler. We are persuaded that prosecutors will not be adversely
affected in their discharge of public duties by the application of the qualified immunity
where the allegations suggest malicious prosecution.
____________________

1
The legislature has codified some aspects of common law immunity in NRS 41.032, which provides in
pertinent part:
No action may be brought under NRS 41.031 or against an officer or employee of the state or any of its
agencies or political subdivisions which is:
1. . . .
2. Based upon the exercise of performance or the failure to exercise or perform a discretionary
function or duty on the part of the state or any of its agencies or political subdivisions or of any officer or
employee of any of these, whether or not the discretion involved is abused.
qualified immunity where the allegations suggest malicious prosecution.
Accordingly, the order of the district court is reversed and the case remanded for further
proceedings in accordance with this opinion.
____________
101 Nev. 229, 229 (1985) Nevada Tax Comm'n v. Harker
NEVADA TAX COMMISSION, Appellant, v. HARKER &
HARKER, INC., a Nevada Corporation, Respondent.
No. 15731
May 8, 1985 699 P.2d 112
Appeal from a district court order reversing a deficiency determination made by a tax
commission hearing officer. Second Judicial District Court, Washoe County; Richard Minor,
Judge.
Tax Commission appealed decision by the district court determining that contractor was
not liable for use tax. The Supreme Court held that contractor, which acted as conduit through
which city government procured its materials, equipment and fixtures for construction
project, did not have sufficient incidents of ownership of such property to warrant imposition
of use tax, and any tax imposed upon contractor was necessarily an impermissible tax
imposed upon city.
Affirmed.
Brian McKay, Attorney General, and Michael J. Dougherty, Deputy Attorney General,
Carson City, for Appellant.
John J. McCune, Michael B. Springer and Timothy E. Rowe, Reno, for Respondent.
1. Taxation.
Use tax requires complete ownership of tangible personal property upon which use tax is based.
2. Taxation.
Contractor, which acted as conduit through which city government procured its materials, equipment and
fixtures for construction project, did not have sufficient incidents of ownership of such property to warrant
imposition of use tax, and any tax imposed upon contractor was necessarily an impermissible tax imposed
upon city; therefore, ruling providing that contractor is consumer of all personal property purchased for use
in improving property pursuant to construction contract could not be construed to apply in such situation.
NRS 361.035, 361.050, 361.060, 372.155, 372.325.
OPINION
Per Curiam:
The Nevada Tax Commission appeals the district court's decision that Harker & Harker,
Inc. (Harker) did not exercise any right or power over tangible personal property included in a
government contract so as to render Harker liable for a use tax pursuant to Ruling No. 67 of
the Nevada Tax Commission. We have reviewed the record and considered the arguments
presented to this Court and conclude the lower court reached a proper determination. For the
following reasons, we affirm the lower court's decision.
Harker is a licensed Nevada contractor engaged in general engineering contracting. Its
business involves work with heavy industrial electrical systems, signal systems, highway
lighting, power lines and the installation of water and gas mains. A significant portion of
Harker's work is performed under contract with governmental entities.
Harker was audited by the State for the period of April 1, 1976, through March 31, 1979.
The State assessed Harker for the taxes it claims should have been paid for the consumption
of the machinery, equipment and fixtures used by Harker in contracts with governmental
agencies.
On October 18, 1979, Harker was notified of the additional tax liability in the amount of
$34,416.98. On November 14, 1979, Harker protested the entire deficiency and petitioned for
a redetermination. The auditor's work was revised and the State adjusted its deficiency
amount to $31,904.98. Harker was notified of the adjustment on December 19, 1979.
Harker thereafter appealed and on February 29, 1980, an oral hearing before a hearing
officer of the Department of Taxation was held. Evidence at the hearing indicated that Harker
had previously been audited by the State for the period of January 1, 1965 through December
31, 1967, and again for the period of January 1, 1972 through December 31, 1974. In both
instances, the State made deficiency determinations. With respect to the first audit, the State
found that the same type of machinery, equipment and fixtures involved in the instant case
were sales to exempt entities and not subject to the sales or use tax. The subsequent
deficiency determination did not include assessment for taxes on items of machinery,
equipment and fixtures used in governmental entity contracts.
The hearing officer for the Department rendered a decision denying Harker's petition for
redetermination and ordered payment of the deficiency. Harker appealed this decision to the
Commission, but the decision was affirmed.
Harker subsequently filed its petition for judicial review. The matter was heard and the
lower court reversed the decision of the Commission and found that Harker was not liable for
use tax. We agree with the district court.
NRS 372.185 imposes a use tax on the storage, use or other consumption in this State of
tangible personal property. . . . The Nevada Act defines use as follows: Use' includes the
exercise of any right or power over tangible personal property incident to the ownership of
that property, except that it does not include the sale of that property in the regular course of
business. NRS 372.100. [Emphasis added.]
[Headnote 1]
Nevada's use tax has been interpreted to require complete ownership of the tangible
personal property upon which the use tax is based. In United States v. Nevada Tax
Commission, 291 F.Supp. 530, 535 (1968), the court held:
In final analysis defendant is arguing for a divided ownership theory; that is, that the
use tax is assessable against anyone who holds any of the incidents of ownership of the
property (viewing ownership as a divisible bundle of rights) and uses, stores or
otherwise consumes the property in this state.
This conception has been comprehensively considered and rejected by the California
Supreme Court in an opinion which reviews all the similar statutory language in the
California Act. [Citing Union Oil Co. of California v. State Board of Equalization, 60
Cal.App.2d 441, 386 P.2d 496 (1963)].
In the present case, Harker did not own the items it installed. There was no unrestricted
right to dispose of the property; nor was there any exclusive right to it or into use, or to
exclude the right in it or to it by the contracting governmental entity. The purchase order form
specifically stated that the materials paid for were the materials of the City of Reno. In
essence, the governmental entity was in fact the user, storer or consumer of the materials and
equipment while the contractor acted simply as a conduit through which the government
procured its materials, equipment and fixtures. See Emery v. Director of Revenue, 402 P.2d
305 (Kan. 1965); Nevada Tax Commission, supra, 291 F.Supp. 530.
The Commission, however, cites to Ruling No. 67, which provides [a] construction
contractor is the consumer of all tangible personal property purchased for use in improving
real property pursuant to a construction contract. The Commission therefore concludes that
since NRS 372.155 imposes a tax on the use, storage or other consumption of personalty,
Harker necessarily must pay a use tax.
therefore concludes that since NRS 372.155 imposes a tax on the use, storage or other
consumption of personalty, Harker necessarily must pay a use tax.
Nevertheless, to apply Ruling No. 67 to the present case would counter Nevada's
legislative intent to exempt its governmental entities from taxation. See NRS 361.035;
361.050; 361.060; 372.325. A contractor in Harker's position, were it to be subject to such a
use tax, would certainly include in its bid the amount of that tax. Thus the State, by taxing a
governmental contractor acting as a conduit for the government, would be collecting the same
funds with the right hand that it would be paying out to the contractor with the left hand. To
extend Ruling No. 67 to this situation would require the State to engage in a costly and
circuitous exercise which would be unproductive and contrary to announced public policy.
In addition, to permit the State to tax Harker at this time would be unconscionable. As a
result of the State's previous audits, Harker did not include in its bids any sum for use taxes,
which had it known would be due, could have been passed on to the State. Thus, Harker has
no opportunity to recoup any such tax assessed against him.
[Headnote 2]
We therefore conclude that Harker did not have sufficient incidents of ownership to
warrant imposition of a use tax. Harker was acting as a mere conduit for the governmental
entity and thus any tax imposed upon Harker is necessarily a tax imposed upon the
governmental entity. Tax exempt entities are meant to remain as such and therefore Ruling
No. 67 cannot be construed to apply in this situation.
We have considered appellant's additional contentions and consider them to be without
merit. Accordingly, the lower court's decision is affirmed.
____________
101 Nev. 233, 233 (1985) Morrison v. Air California
NANCY J. MORRISON, Appellant, v. AIR CALIFORNIA,
a California Corporation, Respondent.
No. 15218
May 15, 1985 699 P.2d 600
Appeal from district court's judgment and order denying appellant's motion for a new trial.
Second Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Action was brought against airline by passenger for injuries incurred during deplaning.
The district court entered judgment in favor of airline, and passenger appealed. The Supreme
Court held that trial court's refusal to permit rebuttal witness to testify concerning deplaning
standard of care was both prejudicial and improper.
Reversed.
Richard W. Young, Reno, for Appellant
Eugene J. Wait, Jr. and Don Springmeyer, Reno, for Respondent.
1. Trial.
Rebuttal evidence is that which explains, repels, contradicts, or disproves evidence introduced by
defendant during his case in chief.
2. Trial.
General rule for determining whether certain rebuttal evidence is proper is whether it tends to counteract
new matters by the adverse party.
3. Trial.
Evidence will not be excluded from rebuttal merely because it might have been made part of the case in
chief.
4. Trial.
Trial court's refusal to permit rebuttal witness to testify concerning deplaning standard of care was
improper in action against airline for injuries incurred by passenger during deplaning, as airline introduced
evidence in support of proposition that its procedures in deplaning passengers in need of assistance were
the same as those of all other airlines and clear purpose of rebuttal evidence was to contradict and disprove
such evidence.
Refusal by trial court to permit rebuttal evidence may be grounds for reversal if it appears the court's
discretion was abused to the prejudice of party offering rebuttal evidence. NRCP 61.
In order to obtain reversal where rebuttal evidence was improperly refused, appellant must show that but
for the error in excluding the evidence a different result might reasonably have been expected. NRCP 61.
Trial court's improper refusal to permit rebuttal witness to testify concerning deplaning standard of care
in action against airline for injuries incurred by passenger during deplaning was reversible
error, as different result may have been reached had the rebuttal evidence been
permitted.
injuries incurred by passenger during deplaning was reversible error, as different result may have been
reached had the rebuttal evidence been permitted. NRCP 61.
8. Trial.
Fundamental fairness requires that party be permitted to introduce evidence to rebut inferences the jury
can draw from opposing party's evidence.
OPINION
Per Curiam:
Appellant, Nancy Morrison, appeals to this Court contending the trial court erred in
refusing to permit her to call a rebuttal witness to testify concerning the deplaning standard of
care as presented by Air California and that such a ruling entitled her to a new trial. We agree
with appellant that the trial court's refusal to permit the rebuttal witness to testify was both
prejudicial and improper and therefore reverse the lower court's decision.
On May 22, 1980, Mrs. Morrison boarded an Air California (Air Cal) flight to the Reno
International Airport. Due to a childhood disability requiring use of a crutch, appellant was
preboarded by employees of Air Cal.
In accordance with the policy and procedure of Air Cal, alcoholic beverages were served
during the flight from Reno to the interim stop in San Jose, California, and from San Jose to
Orange County Airport.
Upon arrival at the Orange County Airport, Mrs. Morrison was asked by a member of the
flight crew to remain seated until all other passengers had completed deplaning because she
and another passenger needed assistance in leaving the aircraft. After the other passengers
deplaned, Mrs. Morrison and the other elderly passenger walked to the forward part of the
aircraft where a flight attendant was stationed near the top of the stairs leading to the ground.
The elderly woman passenger descended the stairs and was followed by appellant. An Air Cal
passenger service agent was in front of both ladies, assisting their descent.
While the two infirm passengers were descending the stairs, a male passenger approached
the flight attendant at the forward part of the cabin. The attendant asked him to wait until
appellant was at the bottom of the stairs before deplaning. The male passenger appeared to
understand and acknowledge the request.
The flight attendant then turned around to the galley area to pick something up, whereupon
the male passenger proceeded to go down the stairs. He then lost his footing and turned
approximately 180 degrees as he fell down the stairway. Hearing a noise, appellant turned and
seeing the male passenger fall, braced herself.
self. The tumbling passenger fell into appellant, knocking her off balance and into the elderly
passenger in front of her. An Air Cal flight attendant attempted to obtain the identity of the
male passenger, but he ignored the attendant's requests and left the airport. Feeling stiff and
sore, appellant eventually went to the hospital because of discomfort in her back.
It is undisputed that flight attendants and customer service agents are responsible for the
safety of the passengers who are deplaning Air Cal's aircraft.
During trial, Mrs. Morrison's evidence showed Air Cal's flight attendants receive extensive
training concerning service of alcoholic beverages to passengers and the need to be alert for
passengers who may have had too much to drink. Air Cal's policy permitted passengers on
their flights to be served as many as three cocktails during one flight or even two doubles. A
flight attendant testified that the man who had fallen down the stairs and collided with Mrs.
Morrison had been drinking to excess. She based her opinion upon his breath, walk and
general attitude. The flight attendant and the customer service agent had seen on prior
occasions, passengers boarding or deplaning Air Cal aircraft who, in their opinions, were
under the influence of intoxicating beverages.
Moreover, the Air Cal flight attendant at the front doorway did not request Mrs. Morrison
to wait at the top of the stairs, inside the aircraft, until the elderly passenger had completed
deplaning. Nor did she wait at the doorway to observe that Mrs. Morrison deplaned safely.
Air Cal moved to dismiss pursuant to NRCP 41(b) but the court denied the motion. At the
conclusion of defendant's case in chief, appellant wished to call a rebuttal witness to rebut
evidence introduced by defendant concerning the industry's standard of care with respect to
deplaning procedures. The court requested an offer of proof and after one was made and the
matter argued, the court refused to permit Mrs. Morrison to introduce her intended rebuttal
evidence. We are persuaded that such a ruling was improper.
Air Cal contends that the testimony of the proffered rebuttal witness should have been
introduced in appellant's case in chief; thus, the trial judge properly exercised his discretion to
exclude it. Nevertheless, sufficient facts were presented to the jury to support a finding of
negligence and therefore the proffered rebuttal evidence wasn't an essential element of
appellant's prima facie case.
[Headnotes 1, 2]
Rebuttal evidence is that which explains, repels, contradicts, or disproves evidence
introduced by a defendant during his case in chief.
in chief. Levenson v. Lake-To-Lake Dairy Co-Op, 394 N.E.2d 1359 (Ill.App. 1979). The
general rule for determining whether certain rebuttal evidence is proper is whether it tends to
counteract new matters by the adverse party. McGee v. Burlington Northern, Inc. 571 P.2d
784 (Mont. 1977).
During presentation of its case in chief, Air Cal had a flight attendant testify who was
present on the occasion of appellant's injury. On direct examination, Air Cal elicited
testimony regarding procedures followed by all airlines, including Air Cal, concerning the
deplaning of passengers in need of assistance.
After the defense rested, the court inquired of appellant's counsel if there was anything
further, whereupon the court was advised a rebuttal witness was then available to testify. Air
Cal objected to the testimony. The trial court requested, and Mrs. Morrison's counsel made,
the following offer of proof:
She is going to tell us, your Honor, that when an air carrier, when Republic or Hughes,
for example, are advised by a ramp agent that a handicapped or passenger who requires
special assistance is boarding, they will empty the aircraft out and then with two
passengers who have handicaps or required assistance, they will send a ramp agent up
and bring the one passenger needing assistance down and another ramp agent, or the
same ramp agent will then proceed back up and bring the other passenger who needs
assistance down. And that procedure is what she believes to be the standard of care.
And if that procedure had been followed that night, this would not have happened.
The trial court stated that it did not remember anyone mentioning the standard procedure in
the industry or the standard of care and ultimately refused the introduction of the proffered
rebuttal evidence.
[Headnote 3]
Evidence will not be excluded from rebuttal merely because it might have been made part
of the case in chief. Shell Oil Company v. Gutierrez, 581 P.2d 271 (Ariz. 1978). In the
treatise on evidence, Jones On Evidence, (Sixth Edition, Gard.), 24:1 (1972) at 74, it is
noted:
Rebutting evidence means, not merely evidence which contradicts the witnesses on the
opposite side and corroborates those of the party who first presented evidence bearing
on the issue, but evidence in denial of some affirmative fact which the answering party
has endeavored to prove. Where the purpose of evidence is clearly rebuttal, the party
offering it is entitled to have it admitted; and its exclusion may be error. [Emphasis
added.] Moreover, in Pellico v. E. L. Ramm Company, 216 N.E.2d 25S {Ill.App.
Moreover, in Pellico v. E. L. Ramm Company, 216 N.E.2d 258 (Ill.App. 1966), the Illinois
Appellant Court held that while the trial court has discretion to permit a plaintiff to introduce
evidence of an affirmative matter in rebuttal when such evidence might properly have been
offered in chief, where a defendant introduces evidence of an affirmative matter in defense
or justification, the plaintiff, as a matter of right, is entitled to introduce evidence in rebuttal
as to such affirmative matter.
[Headnote 4]
In the present case, as a matter of defense or justification, Air Cal introduced evidence in
support of the proposition that its procedures in deplaning passengers in need of assistance
were the same as those of all other airlines. The clear purpose of appellant's rebuttal evidence
was to contradict and disprove such evidence. The proffered testimony was proper rebuttal
testimony and it should have been admitted.
In anticipation of an adverse decision concerning the propriety of the lower court's ruling,
Air Cal contends that any abuse of discretion resulting from the trial court's refusal to allow
the rebuttal evidence was harmless.
[Headnote 5]
NRCP 61 embodies the general rule regarding the treatment of harmless error as
disregarding any error or defect in the proceeding which does not affect the substantial rights
of the parties. Hence, a refusal by a trial court to permit rebuttal evidence may be grounds for
reversal if it appears the court's discretion was abused to the prejudice of the party offering
the rebuttal evidence. See Ellis v. City of Kansas City, 589 P.2d 552 (Kan. 1979); Gray v.
Sharpe, 67 P. 351 (Colo. 1902).
[Headnote 6]
When an offer of proof is permitted or requested, two purposes are served: (1) a fully
informed trial court, and (2) saving the point on appeal. Cameron v. Boone, 383 P.2d 277
(Wash. 1963). Appellant must show that but for the error in excluding the evidence, a
different result might reasonably have been expected. El Cortez Hotel, Inc. v. Coburn, 87
Nev. 209, 484 P.2d 1089 (1971).
[Headnote 7]
Air Cal contends that had the testimony concerning different procedures been admitted, a
different result could not have occurred because of the intervening cause of the passenger
tripping and falling down the stairs. Also, Air Cal opines that had there been two ramp
agents, the injury would still have occurred because the force came from behind and the
agents would have been in front of the deplaning passengers.
Nevertheless, according to the specific language of the offer of proof, it is reasonable to
assume that were it not for the exclusion of the proposed rebuttal evidence, a different result
in the jury's verdict may have resulted. Had Air Cal followed the procedure as set forth in the
offer of proof, the jury could have concluded that Mrs. Morrison would not have been injured
because at the time the male passenger arrived to deplane, Mrs. Morrison, either alone or with
a ramp agent, would have been at the doorway waiting to be assisted. Hence, the passenger
would have been permitted to deplane prior to Mrs. Morrison and the injury would not have
occurred.
[Headnote 8]
Fundamental fairness requires that a party be permitted to introduce evidence to rebut
inferences the jury can draw from the opposing party's evidence. Sellars v. Presbyterian
Intercommunity Hospital, 559 P.2d 876 (Or. 1979). However, in this case such evidence was
excluded. The unchallenged testimony indicating that Air Cal's conduct conformed with
industry standards may well have persuaded the jury that Air Cal was not negligent. The error
in this case was not harmless. Had the rebuttal evidence been permitted a different result may
have been reached.
We have considered the remaining contentions asserted by the parties to this appeal and
consider them to be without merit. Accordingly, we reverse the judgment upon the jury
verdict and remand for a new trial.
Springer, C. J., Mowbray, Gunderson, and Steffen, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was designated to participate in this case. Nev. Const., art. 6
19; SCR 10.
____________
101 Nev. 238, 238 (1985) Nevius v. State
THOMAS NEVIUS, Appellant, v. THE
No. 14683
May 20, 1985 699 P.2d 1053
Appeal from judgment of conviction of first degree murder and three felony offenses, and
imposition of the penalty of death; Eighth Judicial District Court, Clark County, Joseph S.
Pavlikowski, Judge.
Defendant was convicted in the district court of first degree murder, burglary, robbery, and
attempted sexual assault, all with use of a deadly weapon, and sentenced to death. Defendant
appealed. The Supreme Court, Mowbray, J., held that: (1) prosecutor's action in using
peremptory challenges to remove all blacks and hispanics from jury panel did not deprive
defendant of his Sixth Amendment right to a jury drawn from a fair cross section of the
community; {2) instances of alleged prosecutorial misconduct to which defendant
objected were not individually or collectively sufficient to constitute reversible error; {3)
unobjected to prosecutorial misconduct was not plain error; {4) trial court properly
refused defendant's proposed instructions specifically discussing factors pertinent to
evaluation of eyewitness identification testimony; {5) defendant was not entitled to
instruction that voluntary intoxication negated specific intent to kill; and {6) death
sentence was not disproportionate, or imposed under passion, prejudice or any arbitrary
factor.
prosecutor's action in using peremptory challenges to remove all blacks and hispanics from
jury panel did not deprive defendant of his Sixth Amendment right to a jury drawn from a fair
cross section of the community; (2) instances of alleged prosecutorial misconduct to which
defendant objected were not individually or collectively sufficient to constitute reversible
error; (3) unobjected to prosecutorial misconduct was not plain error; (4) trial court properly
refused defendant's proposed instructions specifically discussing factors pertinent to
evaluation of eyewitness identification testimony; (5) defendant was not entitled to
instruction that voluntary intoxication negated specific intent to kill; and (6) death sentence
was not disproportionate, or imposed under passion, prejudice or any arbitrary factor.
Affirmed.
John J. Graves, Las Vegas, for Appellant.
James Tufteland and Thomas R. Green, Deputy District Attorneys, Clark County, for
Respondent.
1. Jury.
Prosecutor's actions in murder prosecution in using peremptory challenges to remove all blacks and
hispanics from jury panel did not deprive defendant of his Sixth Amendment right to a jury drawn from
cross section of the community. NRS 177.055, subd. 2(d).
2. Criminal Law.
Alleged instances of misconduct by prosecutor in closing argument in defendant's trial for first degree
murder were not individually or collectively sufficient to constitute reversible error; furthermore, under
facts of the case and strength of evidence of guilt, unobjected to arguments which constituted misconduct
were not plain error so as to warrant reversal of judgment or death sentence.
3. Criminal Law.
Prosecutor's remark during his argument to jury in prosecution for first degree murder, to the effect that
the State had a right to have the defendant convicted clearly constituted misconduct, since the State has
no such right, only the obligation to dispense justice to its citizenry.
4. Criminal Law.
Prosecutor's arguments in prosecution for first degree murder, whereby prosecutor identified himself with
the victims, and at one point asked jury to return death penalty on behalf of Rochelle Kinnamon, David
and myself, constituted misconduct.
5. Criminal Law.
Specific eyewitness identification instructions need not be given in a criminal case, and are duplicitous of
general instructions on credibility of witnesses and proof beyond a reasonable doubt.
6. Criminal Law.
Trial court in defendant's prosecution for first degree murder and burglary, robbery, and attempted sexual
assault properly refused to give defendant's proposed instruction specifically discussing factors pertinent to
evaluation of eyewitness identification testimony, despite fact that essence of
defendant's defense to murder charge was misidentification.
to evaluation of eyewitness identification testimony, despite fact that essence of defendant's defense to
murder charge was misidentification.
7. Homicide.
Voluntary intoxication may negate specific intent necessary for first degree murder conviction, and an
accused is entitled to an instruction to that effect if there is some evidence in support of his defense theory
of intoxication. NRS 193.220.
8. Homicide.
In order for a defendant to obtain an instruction on involuntary intoxication as negating specific intent to
a murder charge, the evidence must show not only defendant's consumption of intoxicants, but also
intoxicating effect of the substances imbibed and the resultant effect on the mental state pertinent to the
proceedings. NRS 193.220.
9. Homicide.
Defendant charged with first degree murder was not entitled to an instruction that voluntary intoxication
negated specific intent to kill, where jury could have predicated first degree murder liability on felony
murder theory, based in turn on general intent felony of robbery, and where there was no evidence
presented in guilt phase to effect that defendant was intoxicated at time of killing. NRS 193.220.
10. Homicide.
Trial court in prosecution for first degree murder did not err in instructing penalty jury in part that a
verdict may never be influenced by sympathy, prejudice, or public opinion, where district judge fully
advised jury regarding range of mitigating circumstances jury could consider in sentencing defendant.
11. Criminal Law.
Defendant convicted of first degree murder and sentenced to death was not prejudiced by any technical
failure of jury to fully comply with statute providing that a penalty jury shall return a written verdict of
penalty, which shall state that there are no mitigating circumstances sufficient to outweigh the aggravators,
where jury was properly instructed on applicable law and was aware that if it found mitigating
circumstances sufficient to outweigh aggravating circumstances it could not impose the death penalty, and
where jury found no mitigating circumstances present in the case. NRS 175.554, subd. 3.
12. Criminal Law.
Death penalty is constitutional under both State and Federal Constitutions.
13. Homicide.
Considering egregious nature of senseless killing committed by defendant, given fact that murder
occurred during commission of three felonies perpetrated with use of a deadly weapon, and given
defendant's prior conviction of murder, death sentence imposed on defendant convicted of first degree
murder was not disproportionate. NRS 177.055, subd. 2(d).
14. Homicide.
Death penalty imposed on defendant convicted of first degree murder was not imposed under passion,
prejudice, or any arbitrary factor. NRS 177.055, subd. 2(c).
OPINION
A jury convicted appellant Thomas Nevius of one count of first degree murder and three
other felonies: burglary, robbery and attempted sexual assault, all with the use of a deadly
weapon. At the penalty hearing on the first degree murder conviction, the jury found that the
homicide was committed under four aggravating circumstances and under no mitigating
circumstances. The jury returned the penalty of death. On appeal, Nevius raises numerous
assignments of error, none of which is of sufficient merit to warrant reversal of the judgment
of conviction or the sentence. Having found no error, and having concluded that Nevius was
fairly tried, convicted and sentenced, we affirm.
THE FACTS
On the evening of July 12, 1980, appellant and three other men decided to burglarize an
apartment in Las Vegas. They selected the residence of David and Rochelle Kinnamon and
entered the apartment while Rochelle Kinnamon was home alone. Appellant accosted Mrs.
Kinnamon at gunpoint and asked her where she kept her money and diamonds. Learning that
the Kinnamons had little money and few items of value in their home, appellant and another
man dragged Rochelle into the bedroom and placed her on the bed. Appellant attempted to
assault Rochelle sexually while holding a revolver to her jaw. During the attempted assault
the two other men ransacked the kitchen and living room areas of the apartment. David
Kinnamon suddenly returned home from work, causing the four men to flee through the
bedroom window, leaving Rochelle Kinnamon huddled on the bed. As appellant, the last man
out, climbed through the window, David Kinnamon opened the bedroom door and said,
What's going on?; appellant turned and fired four shots at David as he stood in the bedroom
doorway, and while his wife lay on the bed between the window and the door. David
Kinnamon died almost instantly from massive hemorrhaging caused by a bullet would to the
brain. Ballistics testimony revealed that appellant's revolver was a .38 loaded with
hollowpoint ammunition.
At the guilt phase of appellant's trial, Rochelle Kinnamon testified in detail concerning the
events of the evening of her husband's murder. She positively identified appellant as the man
who fired the fatal shots, stating that she would never forget his face. The state also presented
the testimony of David Nevius, appellant's stepbrother and one of the three men involved in
the burglary.
burglary. David Nevius confirmed that the four had planned a burglary, and he testified that
appellant had a .38 snubnose revolver with him when he entered the Kinnamon home. David
Nevius further testified that after the shooting, when the quartet gathered at the Nevius family
home, appellant admitted that he fired the gun and that he might have shot someone;
appellant also admitted that he may have sexually assaulted Mrs. Kinnamon, and said, I
almost could have fd her. Other testimony and physical evidence established that a .38
revolver recovered from the Nevius residence fired the fatal bullets. A pair of pants identified
by Rochelle Kinnamon as those worn by the robber were found in or near appellant's
bedroom. Rochelle Kinnamon's watch was also found in the Nevius home, along with a box
of .38 ammunition of the same type as that recovered from David Kinnamon's body.
Appellant's defense was essentially one of misidentification. He admitted that he was
involved in the crime but claimed that he was not the one who fired the revolver that killed
David Kinnamon. During his cross-examination of Rochelle, appellant sought to impeach her
eyewitness identification. The cross-examination established that although Rochelle testified
on direct that the bedroom lighting was adequate for an identification, and that she was
positive it was appellant who had fired the shots, Rochelle had told the grand jury that it was
dark in the bedroom and that she could not actually identify the killer. Rochelle Kinnamon
explained these discrepancies by explaining her emotional state at the time of the grand jury
proceedings, which were conducted fairly soon after her husband's murder.
In furtherance of his defense of misidentification, appellant presented the testimony of a
hair analyst, who told the jury that the hairs found on a discarded cap, supposedly worn by the
killer, were either dissimilar to or inconsistent with the hairs of Thomas Nevius. Gregory
Leon Everett, the third man involved in the burglary, had received a life sentence for felony
murder for his role in the killing; he testified that appellant was involved in the incident but
did not kill the victim. Appellant also brought out certain facts which suggested that appellant
did not own the pants identified by Rochelle, and which suggested that it was Everett, not
appellant, who fired the revolver. Rochelle had testified that appellant briefly lost the revolver
during the attempted sexual assault; the defense evidence suggested that Everett entered the
bedroom, obtained the weapon, and killed David Kinnamon while fleeing the apartment.
In rebuttal, the state presented a videotaped statement made by Everett soon after the
shooting, in which he identified appellant as the killer. The state also presented testimony
refuting Everett's claim at trial that this statement was false and was coerced by police.
claim at trial that this statement was false and was coerced by police.
The jury was instructed on both premeditation/deliberation and felony murder theories of
liability for first degree murder. The jury returned a general verdict finding appellant guilty of
murder, but without specifying upon which theory its verdict was based. The jury also found
appellant guilty of the burglary of the apartment and the robbery and attempted sexual assault
of Rochelle Kinnamon, all with the use of a deadly weapon.
At the penalty hearing held on the first degree murder conviction, the state sought the
death penalty based on the following alleged statutory aggravating circumstances: (1) that the
murder was committed by a person previously convicted of another murder or violent felony;
(2) that the murder was committed by a person under a sentence of imprisonment; (3) that the
murder was committed by a person who knowingly created a great risk of death to more than
one person, by means of a weapon, device or course of action which would normally be
hazardous to the lives of more than one person; and (4) that the murder was committed during
the course of a burglary, robbery and attempted sexual assault. See NRS 200.033(1), (2), (3),
(4).
The state established the first aggravating factor by presenting evidence that appellant was
convicted of second degree murder in Philadelphia in 1971, at the age of 15. The state
established the second factor by showing that appellant was sentenced to five to fifteen years
in a minimum security juvenile facility for the murder, but that he had escaped from custody
prior to the expiration of his sentence. The evidence revealed that appellant had been granted
parole and that he had been placed in a transitional facility for prospective parolees, but the he
had become frustrated at the six-month delay of his release papers and walked away from the
institution. Although this record does not show that the State of Pennsylvania has made any
attempts to obtain custody of appellant to institute revocation proceedings, the evidence did
establish that appellant was still under a sentence of imprisonment at the time of the
Kinnamon murder.
The state established the third and fourth aggravating factors by citing evidence presented
at the guilt phase, i.e., that Rochelle Kinnamon was in the bedroom close to the path of the
bullets fired at her husband, and that the murder was committed during the commission of the
three listed felonies. The state again played Everett's videotaped statement which implicated
appellant as the killer.
Nevius presented considerable evidence in mitigation of punishment. He established that
he had been a model inmate at the Pennsylvania facilities and at the Clark County jail. He
presented the testimony of the attorney who represented him in the prior murder
proceeding, who testified that the murder was one of many youth gang killings that
occurred in Philadelphia in the early seventies.
the testimony of the attorney who represented him in the prior murder proceeding, who
testified that the murder was one of many youth gang killings that occurred in Philadelphia in
the early seventies. The attorney related that the killing was not a classic case of first degree
murder and had some elements of self-defense. The attorney also described the Philadelphia
ghetto area in which appellant was raised as a jungle.
Sonny Nevius, appellant's father, testified that appellant had been raised by an alcoholic,
possibly abusive mother of some apparent emotional instability; he told the penalty jury that
his son was a good man, whom he loved and whom he did not want to die. Dorothy Benson,
the mother of appellant's young son, testified with the boy on her lap and told the jury that the
appellant meant everything to her. Other witnesses expressed their love for appellant and
confirmed his difficult background.
Gregory Everett testified that appellant was intoxicated at the time of the murder.
According to Everett, on the day of the killing appellant drank at least a half-pint of vodka,
and the four men disposed of fifteen marijuana cigarettes and an unknown number of
quaaludes; Everett described appellant as drunk and high.
Appellant took the stand on his own behalf and related his version of the events of July 12.
He told the penalty jury he had drunk heavily that day, had smoked marijuana and had taken
two quaaludes. He described himself as pretty spaced out. He admitted involvement in the
burglary but denied he fired the shots that killed David Kinnamon, and he expressed remorse
over his death. He insisted that he lost the gun in the bedroom and that it was retrieved by
someone else. He stressed a point established by the state's own evidence, namely, that
although he was supposedly the last man out the bedroom window he was the first to arrive
back at the Nevius home. Appellant concluded by relating his love for his young son and by
promising that if he did not receive the death penalty he would rehabilitate himself in prison.
Appellant was 24 years of age at the time of the murder.
The jury found that the murder was committed under all four of the alleged aggravating
circumstances and under no circumstances in mitigation, and sentenced appellant to death.
On appeal from the judgment and sentence, Nevius presents numerous assignments of
error, some pertinent to only the guilt or the penalty phases and some pertinent to both. We
now turn to a discussion of appellant's contentions.
ISSUES PERTINENT TO BOTH THE GUILT
AND THE PENALTY PHASES
1. Appellant, a black, was convicted and sentenced to death by an all-white jury for the
murder of a white man and the attempted sexual assault of a white woman.
attempted sexual assault of a white woman. During the jury selection process, the prosecutor
used six of its seven peremptory challenges to remove all four blacks and both Hispanics
from the jury panel. Appellant argues that the prosecutor misused his peremptory challenges
to remove the jurors solely on the basis of minority group membership, and thereby deprived
appellant of his sixth amendment right to a jury drawn from a fair cross-section of the
community.
The issue of whether a prosecutor may use peremptory challenges to remove from a jury
panel all members of a specifically cognizable group, particularly a racial or ethnic minority,
has received considerable attention from courts and commentators.
The watershed case in this area is Swain v. Alabama, 380 U.S. 202 (1965). The Swain
court stressed that by its very nature a peremptory challenge is exercised on the basis of
subjective, inchoate reactions to a potential juror, based on sudden, unaccountable prejudices
triggered by gestures, appearance, and the like; it is a challenge exercised without a reason
given or a judicial inquiry into the motive for its exercise. 380 U.S. at 212-21. The court held
that the striking of all members of the defendant's minority group in a given case does not
offend the Equal Protection Clause, because [i]n the quest for an impartial . . . jury all
members of a cognizable racial, religious or other group are alike subject to being
challenged without cause. 380 U.S. at 221.
The Supreme Court reviewed the history of peremptory challenges and held:
The essential nature of the peremptory challenge is that it is one exercised without a
reason stated, without inquiry and without being subject to the court's control. State v.
Thompson, 68 Ariz. 386, 206 P.2d 1037 (1949); Lewis v. United States, 146 U.S. 370,
378. While challenges for cause permit rejection of jurors on a narrowly specified,
provable and legally cognizable basis of partiality, the peremptory permits rejection for
a real or imagined partiality that is less easily designated or demonstrable. Hayes v.
Missouri, 120 U.S. 68, 70. It is often exercised upon the sudden impressions and
unaccountable prejudices we are apt to conceive upon the bare looks and gestures of
another.' Lewis, supra, at 376, upon a juror's habits and associations,' Hayes v.
Missouri, supra, at 70, or upon the feeling that the bare questioning [a juror's]
indifference may sometimes provoke a resentment,' Lewis, supra, at 376. It is no less
frequently exercised on grounds normally thought irrelevant to legal proceedings or
official action, namely, the race, religion, nationality, occupation or affiliation of people
summoned by jury duty. . . . (Footnote omitted.)
Id. at 220.
The Court concluded:
In the light of the purpose of the peremptory system and the function it serves in a
pluralistic society in connection with the institution of jury trial, we cannot hold that the
Constitution requires an examination of the prosecutor's reasons for the exercise of his
challenges in any given case.
Id. at 222.
Appellant urges us to adopt the ruling in People v. Wheeler, 583 P.2d 748 (Cal. 1978)
which rejected the Swain approach and permitted a case-specific inquiry into a prosecutor's
motives for using peremptory challenges to remove minority jurors from a jury panel.
Wheeler noted that after Swain the United States Supreme Court decided Taylor v.
Louisiana, 419 U.S. 522 (1975), which held that a criminal defendant has a sixth amendment
right to a jury drawn from a fair cross-section of the community. Taylor involved an earlier
stage of the jury selection process, however, and condemned the exclusion of a cognizable
group from eligibility for jury duty; the Taylor ruling did not speak to the traditional role of
the peremptory challenge.
1
The Wheeler court nevertheless extended the cross-section rule
into the area of peremptory challenges, notwithstanding the traditional view that peremptories
may be exercised for any reason or no reason.
Wheeler has been followed in few instances. E.g., Commonwealth v. Soares, 387 N.E.2d
499 (Mass. 1979), cert. denied, 444 U.S. 881 (1979); State v. Crespin, 612 P.2d 716
(N.M.App. 1980). Most courts have declined to follow it. State v. Stewart, 591 P.2d 166
(Kan. 1979); Lawrence v. State, 444 A.2d 478 (Md.App. 1982), aff'd, 457 A.2d 1127 (Md.
1983); State v. Sims, 639 S.W.2d 105 {Mo.App.
____________________

1
The Court of Appeals of New York rejected a request that it no longer follow the holding of the Supreme
Court in Swain. The court made clear its understanding that the holding in Swain had not been affected by
Taylor:
The issue of minority representation on criminal juries has been the subject of several decisions by the
Supreme Court. These decisions draw a critical distinction between the jury pool, which is the group of
prospective jurors from which the litigants will select a jury to hear their particular case, and the jury that
is ultimately chosen to serve. The Sixth Amendment requires that the jury pool be selected from a
representative cross section of the community (Taylor v. Louisiana [(1975)], 419 U.S. 522, 95 S.Ct. 692,
42 L.Ed.2d 690), and distinctive groups in the community may not be systematically excluded from the
pool. Once the jury pool is selected, however, prospective jurors may then be excluded through the
exercise of cause challenges and peremptory challenges.
People v. McCray, 443 N.E.2d 915, 916-17 (1982), cert. denied, 461 U.S. 961 (1983).
Sims, 639 S.W.2d 105 (Mo.App. 1982); Commonwealth v. Henderson, 438 A.2d 951 (Pa.
1981); State v. Ucero, 450 A.2d 809 (R.I. 1982); State v. Grady, 286 N.W.2d 607 (Wis.App.
1979); see People v. McCray, 443 N.E.2d 915 (N.Y. 1982), cert. denied, 461 U.S. 961
(1983), (not mentioning Wheeler but rejecting the Wheeler approach); cf. Doepel v. United
States, 434 A.2d 449 (D.C.App. 1981), cert. denied, 454 U.S. 1037 (1981), (judging Swain
dispositive). Two of the courts expressly criticized Wheeler as effectively eliminating the
peremptory challenge as a useful tool in assuring an impartial jury. Commonwealth v.
Henderson, 438 A.2d 951; State v. Grady, 286 N.W.2d 607.
2

[Headnote 1]
Wheeler clearly represents the minority view. We decline to adopt the Wheeler reasoning,
and we shall follow the rule in Swain.
3

[Headnote 2]
2. Appellant also argues that both the guilt and penalty phases of his trial were infected by
prosecutorial misconduct at closing argument to the jury. We need not spell out the alleged
instances of misconduct in detail: appellant acknowledged at oral argument that most of the
instances of alleged misconduct were not objected to. Those that were are not individually or
collectively sufficient to constitute reversible error. Some of the prosecutor's arguments
which were not objected to do constitute misconduct; under the facts and circumstances of
this particular case, however, and especially the strength of the evidence of guilt, we decline
to consider the comments as plain error, and conclude that no misconduct of the prosecutor
warrants reversal of the judgment or the death sentence.
____________________

2
There has been criticism of the reasoning of the Wheeler court. (See S. Saltzburg & M. Powers, Peremptory
Challenges and the Clash Between Impartiality and Group Representation, 41 Md.L.Rev. 337, 359-60 (1982).
It has been observed that Wheeler has found surprisingly little support and that the overwhelming majority of
courts still apply Swain's systematic exclusion test. Comment, The Sixth Amendment: Limiting the Use of
Peremptory Challenges, 16 J.Mar.L.Rev. 349, 358 (1983).

3
It has been suggested that since the prosecutor placed his reasons for exercising the peremptory challenges
on the record, we should review those reasons in light of Weatherby v. Morris, 708 F.2d 1493 (9th Cir. 1983),
cert. denied, 104 S.Ct. 719 (1984). In the absence of additional guidance from the Supreme Court of the United
States, we decline to do so. If the nature of the motive underlying a peremptory challenge is deemed to affect
due process or fundamental fairness, then the reviewability of motive should not depend upon such vagaries as
whether the prosecutor happened to place his motives on record. Such a policy would allow a substantive right
to be frustrated by mere silence or the refusal to cooperate. In any event, we are satisfied on the record that
appellant's position cannot be validated even by the Weatherby standard.
conclude that no misconduct of the prosecutor warrants reversal of the judgment or the death
sentence.
[Headnotes 3, 4]
Notwithstanding our resolution of this issue, we are constrained to comment on some of
the remarks made by the prosecutor during his argument to the jury. At one point, the
prosecutor told the jury the state had a right to have the defendant convicted. Of course, the
state has no such right, only the obligation to dispense justice to its citizenry. Although not
objected to, this remark clearly constituted misconduct. At other points in his arguments, the
prosecutor identified himself with the victims, and at one point asked the jury to return the
death penalty on behalf of Rochelle Kinnamon, David and myself. This remark, also not
objected to, constituted misconduct. We have had recent occasion to warn the prosecutors of
this state that serious instances of misconduct will not be countenanced by this Court.
McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984). Were the evidence of guilt and of the
appropriateness of the death penalty in this case of a lesser order of magnitude, we may have
had to reverse this judgment and sentence on the ground of the serious and wholly
unnecessary misconduct of the prosecutor. We again admonish the district attorneys of this
state to heed the warnings we expressed in McGuire.
Having determined that neither of the two issues directed to both the guilt and the penalty
phases warrant reversal, we now turn to the assignments of error specifically pertinent to
either the guilt or the penalty phases of appellant's trial.
ISSUES PERTINENT TO THE GUILT PHASE
As noted, the essence of appellant's defense at the guilt phase was misidentification. In his
cross-examination of Rochelle Kinnamon, appellant challenged the validity of her eyewitness
identification of himself as the killer. At the conclusion of the guilt phase, appellant proposed
an instruction specifically discussing the factors pertinent to the evaluation of eyewitness
identification testimony. The district court refused the instruction, and appellant contends that
this was error. We disagree.
[Headnotes 5, 6]
Some courts have held that at least in certain circumstances, specific instructions on
eyewitness testimony should be given. See United States v. Telfaire, 469 F.2d 552 (D.C. Cir.
1972); People v. Whalen, 451 N.E.2d 212 (N.Y. 1983). We adhere to the accepted view,
however, that specific eyewitness identification instructions need not be given, and are
duplicitous of the general instructions on credibility of witnesses and proof beyond a
reasonable doubt.
general instructions on credibility of witnesses and proof beyond a reasonable doubt. United
States v. Masterson, 529 F.2d 30 (9th Cir.), cert. denied, 426 U.S. 908 (1976); Sparks v.
State, 96 Nev. 26, 604 P.2d 802 (1980).
4
See also United States v. Sambrano, 505 F.2d 284
(9th Cir. 1974). We therefore conclude that the district court did not err by refusing to give
appellant's proposed instruction.
[Headnotes 7-9]
Appellant also argues that the district court erred by refusing to give an instruction that
voluntary intoxication negated the specific intent to kill. See NRS 193.220. Appellant's
argument ignores the fact that the jury could have predicated first degree murder liability on a
felony murder theory, based in turn on the general intent felony of robbery. See Litteral v.
State, 97 Nev. 503, 634 P.2d 1226 (1981). Thus, an instruction speaking to the negation of a
specific intent to kill might not have affected the outcome of the guilt phase. Assuming
arguendo that the jury focused on a theory of a premeditated killing performed with specific
intent, we conclude that the failure to give the instruction was not error. It is true that
voluntary intoxication may negate specific intent, and an accused is entitled to an instruction
to that effect if there is some evidence in support of his defense theory of intoxication. See,
e.g., Williams v. State, 99 Nev. 530, 665 P.2d 260 (1983). Here, however, there was no
evidence presented at the guilt phase to the effect that appellant was intoxicated at the time of
the killing. The evidence showed only that he consumed intoxicants: David Nevius testified
that the four men had a bottle of wine with them before the burglary, and that appellant had
smoked marijuana. In order for a defendant to obtain an instruction on voluntary intoxication
as negating specific intent, the evidence must show not only the defendant's consumption of
intoxicants, but also the intoxicating effect of the substances imbibed and the resultant effect
on the mental state pertinent to the proceedings. See State v. Bourdlais, 70 Nev. 233, 265
P.2d 761 (1954) (decided under precursor of NRS 193.220); State v. Boyles, 537 P.2d 933
(Ariz. 1975); see also People v. Harris, 623 P.2d 240 (Cal.), cert. denied, 454 U.S. (1981).
The instruction on voluntary intoxication was properly refused.
We have considered appellant's contention regarding the alleged ambiguity of the charging
language of the indictment, and have found it to be without merit. Appellant's remaining issue
pertinent to the guilt phase has been voluntarily withdrawn from our consideration.
____________________

4
Appellant's attempt to distinguish Sparks is not persuasive.
ISSUES PERTINENT TO THE PENALTY PHASE
[Headnote 10]
Appellant first argues that the district court erred by instructing the penalty jury in part that
[a] verdict may never be influenced by sympathy, prejudice, or public opinion.
5
Appellant
relies upon People v. Lanphear, 680 P.2d 1081 (Cal. 1984) and People v. Easley, 671 P.2d
813 (Cal. 1983). We do not believe the holdings in the California cases are controlling in the
instant case for the reason that here the district judge fully advised the jury regarding the
range of mitigating circumstances the jury could consider in sentencing Nevius.
6
As the
California court in Lanphear said: Here, as in Easley, the jury was not instructed that it
could consider any aspect of the defendant's character or background in determining
whether death was the appropriate penalty.
____________________

5
The entire instruction is as follows:
Although you are to consider only the evidence from the trial and the penalty hearing in reaching a
verdict, you must bring to the consideration of the evidence your everyday common sense and judgment
as reasonable men and women. Thus, you are not limited solely to what you see and hear as the witnesses
testify. You may draw reasonable inferences which you feel are justified by the evidence, keeping in
mind that such inferences should not be based on speculation or guess.
A verdict may never be influenced by sympathy, prejudice or public opinion. Your decision should be the
product of sincere judgment and sound discretion in accordance with these rules of law.

6
The jury was instructed as follows:
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 murder was committed while the defendant was under the influence of extreme mental or
emotional disturbance.
3. The victim was a participant in the defendant's criminal conduct or consented to the act.
4. The defendant was an accomplice in a murder committed by another person and his participation
in the murder was relatively minor.
5. The defendant acted under duress or under the domination of another person.
6. The youth of the defendant at the time of the crime.
7. Any other mitigating circumstance.
However, the mitigating circumstances which I have read for your consideration are given to you merely
as examples of some of the factors that you may take into account as reasons for deciding not to impose a
death sentence upon Mr. Nevius. You should pay careful attention to each of those factors. Any one of
them may be sufficient, standing alone, to support a decision that death is not the appropriate punishment
in this case. But, you should not limit your consideration of mitigating circumstances to these specific
factors. You may also consider any other circumstances (relating to the case or to the Defendant, Mr.
Nevius), as reasons for not imposing the death sentence.
Here, as in Easley, the jury was not instructed that it could consider any aspect of the
defendant's character or background in determining whether death was the appropriate
penalty. Rather the extenuation instructions given suggested that only circumstances
that lessen moral culpability are to be considered. That error was compounded by the
repeated admonition that the jury should not be influenced by pity or sympathy for the
defendant.
680 P.2d at 1083. Since the Nevius penalty jury was properly instructed to consider any
mitigating circumstances offered by appellant, consistent with the requirements of Eddings v.
Oklahoma, 455 U.S. 104 (1982) and Lockett v. Ohio, 438 U.S. 586 (1978), it was not error
for the district judge to instruct the jury that they should not be influenced by sympathy,
prejudice or public opinion.
Appellant also argues that his death sentence is suspect because the penalty jury failed to
comply literally with the terms of NRS 175.554(3). That statute provides that a penalty jury
shall return a written verdict of penalty, which shall designate the aggravating
circumstances found and which shall state that there are no mitigating circumstances
sufficient to outweigh the aggravators. In this case, the jury did return a written verdict listing
the aggravating circumstances found, but the verdict did not formally recite the absence of
mitigating circumstances sufficient to outweigh the aggravating circumstances.
[Headnote 11]
Appellant argues that this failure to comply strictly with the mandatory terms of the statute
renders the death sentence suspect; he argues that in capital cases particularly, penal statutes
are to be strictly construed. He cites no authority for this argument except general
constitutional principles. As respondent points out, the jury was properly instructed on the
applicable law and was aware that if it found mitigating circumstances sufficient to outweigh
the aggravating circumstances, it could not impose the death penalty. Moreover, the jury
found no mitigating circumstances present in the case. Accordingly, we conclude that
appellant was not prejudiced by any technical failure to comply fully with NRS 175.554(3).
[Headnote 12]
Finally, appellant contends that the death penalty is unconstitutional under both the state
and the federal constitutions. This contention is without merit. See Deutscher v. State, 95
Nev. 669, 601 P.2d 407 (1979).
PROPORTIONALITY REVIEW
[Headnotes 13, 14]
NRS 177.055(2)(d) requires this Court to review a death sentence and determine whether
the sentence is disproportionate to the penalty imposed in similar cases throughout the state,
considering both the crime and the defendant. We have conducted a proportionality review of
Nevius' death sentence, and have compared the facts of this crime and the background and
characteristics of this defendant with those of similar cases in this state. Considering the
egregious nature of the senseless killing in this case, given the fact that the murder occurred
during the commission of three felonies perpetrated with the use of a deadly weapon, and
given appellant's prior conviction of murder, we have concluded that the death sentence in
this case is not disproportionate. See Deutscher v. State, 95 Nev. 669; Bishop v. State, 95
Nev. 511, 597 P.2d 273 (1979); Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).
CONCLUSION
We have found no merit to any of appellant's assignments of error and have concluded that
the death penalty in this case is not disproportionate. Accordingly, we hereby affirm the
judgment of conviction and the sentence of death.
Springer, C. J., and Gunderson and Steffen, JJ., and Foley, D. J.,
8
concur.
____________________

7
We have also conducted the separate arbitrariness review required by NRS 177.055(2)(c), and have
concluded that the death penalty in this case was not imposed under passion, prejudice or any arbitrary factor.

8
The Governor designated Hon. Thomas Foley, Judge of the Eighth Judicial District Court, to participate in
this case. Nev. Const., art. 6, 4.
____________
101 Nev. 252, 252 (1985) Biondi v. State
JOSEPH DOMINICK BIONDI, Appellant, v.
No. 14771
May 20, 1985 699 P.2d 1062
Appeal from a conviction of first degree murder with use of a deadly weapon. Eighth
Judicial District Court, Clark County; Paul S. Goldman, Judge.
Defendant was convicted in the district court of first degree murder with use of a deadly
weapon and sentenced to death, and he appealed. The Supreme Court held that: (1)
procedural deficiencies committed by California authorities in transferring defendant to
Nevada, if any, did not bar Nevada from prosecuting defendant or invalidate his Nevada
conviction; {2) information charging defendant was sufficient; {3) fact that information
did not inform defendant of State's theory of aiding and abetting, and prosecutor stated in
closing argument that defendant was guilty either because he and a codefendant stabbed
the victim or because he aided and abetted the codefendant, did not prejudice defendant;
{4) defendant was not entitled to a new trial on grounds of newly discovered evidence;
{5) death threat to a witness against defendant in a preliminary hearing, statement of an
acquaintance of defendant concerning admissions defendant made to her, and statements
of a victim of an armed robbery committed by defendant were properly admitted against
defendant in penalty hearing; {6) trial court properly instructed jury that a verdict may
never be influenced by sympathy, prejudice, or public opinions; and {7) death sentence
imposed on defendant was disproportionate.
ciencies committed by California authorities in transferring defendant to Nevada, if any, did
not bar Nevada from prosecuting defendant or invalidate his Nevada conviction; (2)
information charging defendant was sufficient; (3) fact that information did not inform
defendant of State's theory of aiding and abetting, and prosecutor stated in closing argument
that defendant was guilty either because he and a codefendant stabbed the victim or because
he aided and abetted the codefendant, did not prejudice defendant; (4) defendant was not
entitled to a new trial on grounds of newly discovered evidence; (5) death threat to a witness
against defendant in a preliminary hearing, statement of an acquaintance of defendant
concerning admissions defendant made to her, and statements of a victim of an armed robbery
committed by defendant were properly admitted against defendant in penalty hearing; (6) trial
court properly instructed jury that a verdict may never be influenced by sympathy, prejudice,
or public opinions; and (7) death sentence imposed on defendant was disproportionate.
Affirmed as modified.
Lovell, Potter & Gewerter, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney; James
Tufteland, Deputy; Mitchell M. Cohen, Deputy, Las Vegas, for Respondent.
1. Criminal Law.
Even if California authorities committed procedural deficiencies in transferring defendant to Nevada,
such deficiencies did not bar Nevada from prosecuting defendant for first degree murder, nor did they
invalidate his Nevada conviction. NRS 178.620 et seq.
2. Homicide.
Information charging defendant was sufficient despite fact that information did not specify degree of
murder charged.
3. Criminal Law.
Prosecutor's comments in closing argument in first degree murder prosecution, whereby prosecutor stated
that defendant was guilty either because defendant and a codefendant stabbed the victim or because
defendant aided and abetted the codefendant by holding the victim, did not prejudice defendant, despite
fact that information did not inform defendant of State's theory of aiding and abetting, where defendant was
not prevented from preparing his defense to the charge, where defendant's defense was that he was not
involved in the fight with the victim, and where jury specifically rejected defendant's defense and found
him guilty and at penalty hearing found that he had stabbed the victim.
4. Criminal Law.
Affidavit from codefendant stating that he alone stabbed victim and that he had lied at trial when he
disclaimed any responsibility for the killing did not constitute newly discovered evidence or evidence
which would probably change result at trial, so as to entitle defendant to new trial, where
codefendant's statements exculpating defendant had been presented to the jury and
had been rejected.
new trial, where codefendant's statements exculpating defendant had been presented to the jury and had
been rejected. NRS 176.515, subd. 1.
5. Homicide.
A death threat to a witness against murder defendant at his preliminary hearing, a voice identified as
defendant's taped on a telephone answering machine, and a taped statement of defendant's acquaintance
concerning admissions defendant made to her immediately after the stabbing in question were relevant to
defendant's character and circumstances of murder with which he was charged, and thus, were properly
admitted into evidence against him in penalty phase of first degree murder prosecution.
6. Homicide.
Testimony of victim of an armed robbery to which defendant pleaded guilty about events surrounding the
robbery, including sexual assault defendant attempted, was properly admissible in penalty hearing in
defendant's prosecution for first degree murder, where the statements concerning the sexual assault were
credible and relevant to defendant's character.
7. Homicide.
Trial judge in penalty phase of first degree murder prosecution properly instructed jury that a verdict may
never be influenced by sympathy, prejudice, or public opinion, where penalty jury was correctly instructed
to consider six specific mitigating factors and any other circumstances relating to the case or to defendant
as reasons for not imposing the death sentence.
8. Homicide.
Death sentence imposed on defendant convicted of first degree murder was disproportionate, where crime
occurred in context of a barroom confrontation among opposing strangers who were substantially
intoxicated and emotional, where there was no evidence that the murder had been planned in advance, and
where a codefendant was sentenced to life imprisonment with possibility of parole for the very same crime.
NRS 177.055, subds. 3, 3(c).
OPINION
Per Curiam:
A jury convicted appellant Joseph Biondi of the first degree murder of Timothy Smith
with the use of a deadly weapon. The jury found one aggravating circumstance: that Biondi
had been convicted of a felony involving the threat of violence to the person of another. The
jury sentenced Biondi to death. Biondi has appealed from his judgment of conviction
asserting numerous assignments of error which we reject as meritless. We hold, however, that
the imposition of the death sentence in the instant case is disproportionate to sentences
imposed in similar cases. We therefore vacate Biondi's death sentence, and we impose the
sentence of life imprisonment without the possibility of parole.
THE FACTS
Timothy Smith, a parole officer, was stabbed in the parking lot of a Las Vegas bar in the
early morning hours of February 4, 19S1.
1981. Smith, who was off duty, arrived at the bar around 12:45 a.m. with a friend, Carl Blair.
Appellant Biondi and his friends, including Michael Phillips, Ron and Becky Lacey, and
Steve Izzi, were in the bar. They were drinking, and they were intoxicated. When in the bar
Timothy Smith and Ron Lacey began an argument. They left the bar and went outside to
settle the dispute. A fight ensued between Timothy Smith and Blair and Ron Lacey. Lacey
cut the two men with a knife. After this fight had ended, four of those present saw Timothy
Smith struggling with Biondi and Phillips between two parked cars. One of the witnesses,
Becky Lacey, testified that Biondi and Phillips each stabbed Smith. Blair testified that only
Biondi stabbed Smith. Izzi testified that Biondi held Smith while Phillips stabbed him.
Biondi and Phillips fled the scene. Biondi discarded the knife he was carrying. The knife was
not recovered. Smith had been stabbed in the chest. He suffered brain death from loss of
blood. He was pronounced dead two days later.
Biondi and Phillips were charged with Smith's murder. Phillips pleaded guilty to first
degree murder. He was sentenced to life in prison with the possibility of parole. Biondi was
transferred to Nevada from California under the Interstate Agreement on Detainers.
The jury found Biondi guilty of first degree murder with the use of a deadly weapon. In the
penalty hearing, the jury returned a special verdict finding that Biondi had stabbed Smith. The
jury also found that Biondi had been convicted of a crime involving the use of violence,
armed robbery. The jury imposed the death penalty. This appeal followed.
ASSIGNMENTS OF ERROR
[Headnote 1]
1. Biondi alleges several assignments of error. He argues that the district court erred in
denying his pre-trial petition for habeas corpus. The petition was predicated upon procedural
deficiencies committed by the California authorities in transferring Biondi to Nevada. NRS
178.620 et seq. If such procedural violations were committed by the California authorities,
they did not bar the State of Nevada from prosecuting Biondi, nor do they invalidate his
Nevada conviction. Frisbie v. Collins, 342 U.S. 519, 522 (1952). The pre-trial petition for
habeas corpus was properly denied.
[Headnote 2]
2. Appellant asserts that the Information charging him was insufficient. The Information
did not specify the degree of murder charged. This Court has held that an open murder
charge need not specify the degree of murder. Sheriff v. Willoughby, 97 Nev. 90, 92, 624
P.2d 498, 499 (1981); Burns v. Sheriff, 93 Nev. 530, 531, 569 P.2d 407, 408 (1977).
[Headnote 3]
3. Biondi also suggests that the Information did not inform him of the state's theory of
aiding and abetting in the commission of the murder which theory of the crime was
suggested by the prosecution in the state's closing argument. See Barren v. State, 99 Nev. 661,
669 P.2d 725 (1983). Biondi was charged in the Information as a principal. Two eyewitnesses
testified that Biondi stabbed Smith. Steve Izzi testified that he saw Biondi holding Smith
while Phillips stabbed Smith. The prosecutor stated in closing argument that Biondi was
guilty either because Biondi and Phillips stabbed Smith or because Biondi aided and abetted
Phillips by holding Smith. Biondi argues on appeal that the presentation of this alternative
theory by the prosecutor during argument violated this Court's holding in Barren, supra. We
do not agree. In the instant case, the alternate suggestion that Biondi may have aided and
abetted in the murder did not prevent Biondi from preparing his defense to the charge.
Biondi's defense was that he was not involved in the fight with Smith. Biondi claimed that he
found Smith between two parked cars after he had been stabbed. The jury specifically
rejected his defense and found Biondi guilty. In its special verdict at the conclusion of the
penalty hearing, the jury found that Biondi had stabbed Smith. We conclude that the
prosecutor's comments did not prejudice Biondi. State v. Jones, 96 Nev. 71, 76, 605 P.2d 202,
206 (1980).
4. Appellant also argues that the trial judge abused his discretion in denying the motion
for a new trial on the grounds of newly discovered evidence. See NRS 176.515(1).
1
The
evidence presented was in affidavit form from codefendant Michael Phillips and mailed from
the prison where Phillips was serving his life sentence with the possibility of parole for
stabbing Smith.
[Headnote 4]
Prior to the jury trial, defense investigator Michael Wysocki had interviewed Phillips in
the prison. Phillips had told Wysocki that he and not Biondi had stabbed Smith. Wysocki
repeated to the jury Phillips' statement that Phillips had stabbed Smith. Phillips testified that
Biondi did not stab Smith, but Phillips denied stabbing Smith himself. In the affidavit Phillips
stated that he alone stabbed Smith and that he had lied at trial when he disclaimed any
responsibility for the killing. Under these circumstances, the affidavit was not newly
discovered. Porter v. State, 94 Nev. 142, 150, 576 P.2d 275, 280 (1978). Nor did the
affidavit constitute evidence which would probably change the result at trial" since Phillips'
statements exculpating Biondi had been presented to the jury and had been rejected.
____________________

1
The court may grant a new trial to a defendant if required as a matter of law or on the grounds of newly
discovered evidence.
result at trial since Phillips' statements exculpating Biondi had been presented to the jury and
had been rejected. State v. Crockett, 84 Nev. 516, 519, 444 P.2d 896, 897-98 (1968). We
conclude that the trial judge did not abuse his discretion in denying Biondi's motion for a new
trial. Lightford v. State, 91 Nev. 482, 483, 538 P.2d 585, 586 (1975).
[Headnotes 5, 6]
5. Biondi claims that evidence was erroneously admitted against him in the penalty
hearing. The challenged evidence included: a death threat to Becky Lacey, a witness against
Biondi at his preliminary hearing, in a voice identified as Biondi's taped on a telephone
answering machine; and a taped statement of one Zona Kysar, an acquaintance of Biondi's
concerning admissions Biondi made to her in the hours immediately after the stabbing. These
taped statements were relevant to Biondi's character and the circumstances of the particular
offense. See Woodson v. Carolina, 428 U.S. 280 (1976). Neither statement was dubious or
tenuous; therefore, both were properly admitted. Allen v. State, 99 Nev. 485, 488, 665 P.2d
238, 240 (1983) (holding that the evidence admissible against the defendant at the penalty
hearing under NRS 175.552 is not limited to evidence of the nine aggravating circumstances
outlined in NRS 200.033 but includes other relevant character evidence). Biondi also
challenges the admission of testimony of Sherry Richardson, the victim of an armed robbery
in California to which Biondi pleaded guilty in 1976. Richardson testified about the events
surrounding the robbery including the sexual assault Biondi attempted. Richardson's
testimony was admissible since her statements concerning the sexual assault were credible
and relevant to Biondi's character. See Allen, supra.
[Headnote 7]
6. Finally, appellant asserts that the trial judge erred by reading to the penalty jury an
instruction which stated, in part, A verdict may never be influenced by sympathy, prejudice,
or public opinion.
2
The penalty jury was correctly instructed to consider six specific
mitigating factors and "any other circumstances relating to the case or to the defendant,
Mr.
____________________

2
The entire instruction read as follows:
Although you are to consider only the evidence from the trial and the penalty hearing in reaching a
verdict, you must bring to the consideration of the evidence your everyday common sense and judgment
as reasonable men and women. Thus, you are not limited solely to what you see and hear as the witnesses
testify. You may draw reasonable inferences which you feel are justified by the evidence, keeping in
mind that such inferences should not be based on speculation or guess.
A verdict may never be influenced by sympathy, prejudice or public opinion. Your decision should be
the product of sincere judgment and sound discretion in accordance with these rules of law.
consider six specific mitigating factors and any other circumstances relating to the case or to
the defendant, Mr. Biondi, as reasons for not imposing the death sentence.
3
In this context,
the jury instruction was proper. Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985).
We have considered the remaining claims of error in the penalty hearing. They are without
merit. We affirm Biondi's judgment of conviction, and we perceive no error in the penalty
hearing.
THE PROPORTIONALITY REVIEW
We turn to review the death sentence imposed by the jury to determine if it is
disproportionate to the penalty imposed in similar cases in this state, considering both the
crime and the defendant as mandated by NRS 175.055(2)(d). This Court has previously
noted that
proportionality review' dictates that we compare all capital cases, as well as appealed
murder cases in which the death penalty was sought but not imposed, and set aside
those death sentences which appear comparatively disproportionate to the offense and
the background and characteristics of the offender.
Harvey v. State, 100 Nev. 340, 342, 682 P.2d 1384, 1385 (1984). Having compared the crime
committed by Biondi with similar cases, including the identical crime committed by
codefendant Michael Phillips, who also stabbed Smith and was sentenced to life
imprisonment with the possibility of parole, we must conclude that the death sentence in
this instance is disproportionate and therefore shall be set aside.
____________________

3
The jury was instructed to consider the following factors in mitigation:
(1) that the defendant has no significant history of prior criminal activity (2) the murder was
committed while the defendant was under the influence of extreme mental or emotional disturbance (3)
the victim was a participant in the defendant's criminal conduct or consented to the act (4) the defendant
was an accomplice in a murder committed by another person and his participation in the murder was
relatively minor (5) the defendant acted under duress or under the domination of another person (6) the
youth of the defendant at the time of the crime.
The jury was further instructed:
However, the mitigating circumstances which I have read for your consideration are given to you
merely as examples of some of the factors that you may take into account as reasons for deciding not to
impose a death sentence upon Mr. Biondi. You should pay careful attention to each of those factors. Any
one of them may be sufficient, standing alone, to support a decision that death is not the appropriate
punishment in this case. But you should not limit your consideration of mitigating circumstances to these
specific factors.
You may also consider any other circumstances relating to the case or to the defendant, Mr. Biondi, as
reasons for not imposing the death sentence.
life imprisonment with the possibility of parole, we must conclude that the death sentence in
this instance is disproportionate and therefore shall be set aside.
Biondi's crime, although violent, occurred in the context of a barroom confrontation
among opposing strangers who were substantially intoxicated and emotional. Tempers flared,
challenges were issued and a death occurred. While we do not in any sense condone such a
senseless killing, we are nevertheless convinced that our course is clear under the
proportionality mandate of the statute. Smith was stabbed in one of a series of fights which
erupted between the intoxicated patrons of a bar: there was no evidence that the murder had
been planned in advance. See Harvey, supra (sixteen-year-old defendant shot and killed a
security guard in a panic while trying to flee from the scene of an armed robbery; death
penalty reduced to life in prison without the possibility of parole). Biondi had one prior
conviction for a violent crime, armed robbery. This was unlike the series of crimes committed
by the defendant in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985) (defendant shot and
killed his girl friend and stole a car before the killing for which he received death; death
penalty affirmed).
[Headnote 8]
Even more strikingly significant, however, is the comparison between Biondi, who was
sentenced to death, and codefendant Phillips, who was sentenced to life in prison with the
possibility of parole, for the very same crime. Phillips was allowed to plead guilty to first
degree murder for stabbing Smith. Biondi and Phillips each had one prior felony conviction
for a violent crime: Biondi pleaded guilty to armed robbery in 1976; Phillips was convicted in
1977 or 1978 for assault with a deadly weapon. Biondi's participation in the murder was no
more significant than Phillips'. In fact, one eyewitness testified that Biondi had held Smith
while Phillips stabbed him. The state has provided no explanation for its decision to allow
Phillips to plead guilty and be sentenced to life with the possibility of parole but to seek the
death penalty for Biondi.
4
Nor does any justification for this disparity appear in the record.
This is a case where similar defendants were sentenced differently for the identical crime. For
this reason, and for the reasons discussed above, we hold the death penalty imposed on
Biondi is disproportionate.
____________________

4
Biondi had other prior convictions for nonviolent crimes: mail fraud, bail jumping, and writing bad checks.
Whether Phillips had other prior convictions is not in the record. In any event, the state did not attempt to justify
the disparity in the sentences received by Biondi and Phillips by Biondi's nonviolent convictions.
death penalty imposed on Biondi is disproportionate. We hereby vacate it and impose a
sentence of life imprisonment without the possibility of parole. NRS 177.055(3)(c).
5

____________________

5
NRS 177.055(3) provides, in part: The Supreme Court when reviewing a death sentence, may: (c) Set aside
the sentence of death and impose the sentence of imprisonment for life without possibility of parole.
____________
101 Nev. 260, 260 (1985) Day v. West Coast Holdings
RONALD J. DAY, Individually, and dba R.J. CONSTRUCTION COMPANY,
and FRANK GONZALES, Appellants, v. WEST COAST HOLDINGS, INC.,
a Nevada Corporation, Respondent.
No. 15208
May 21, 1985 699 P.2d 1067
Appeal and cross-appeal from a judgment and subsequent order denying appellants'
motion to amend the Findings of Fact and Conclusions of Law; Eighth Judicial District
Court, Clark County; Thomas A. Foley, Judge.
General contractor brought action against landscaping subcontractor for breach of contract,
slander of title, and discharge of mechanic's lien, and subcontractor counterclaimed for
amount due for services and materials. The district court awarded damages to subcontractor
but reduced original contract price, and entered judgment in favor of general contractor on
slander of title action. Both parties appealed. The Supreme Court held that: (1) evidence was
insufficient to support reduction of contract price by eliminating 10% profit and 15%
overhead; (2) evidence was insufficient to support finding that extra services and materials
provided by subcontractor were provided gratuitously; (3) subcontractor was entitled to
prejudgment interest, and award of costs; (4) subcontractor's lack of specialty license did not
preclude recovery; and (5) general contractor was not entitled to award of attorney fees on
successful slander of title action.
George R. Carter, Las Vegas, for Appellants.
Wiener, Waldman & Gordon and Bradley J. Richardson, Las Vegas, for Respondent.
Where there is no substantial conflict in the evidence on any material point and decision is manifestly
contrary to the evidence, reviewing court is bound to take remedial action.
2. Contracts.
In action on landscaping contract, estimate of $2,444 to repair damage caused by faulty workmanship of
landscaper was not sufficient to justify trial court's reduction of contract price by nearly $20,000, by
eliminating 10% profit and 15% overhead.
3. Contracts.
When services are requested, presumption arises that beneficiary promises to pay their reasonable value.
4. Contracts.
Landscaping subcontractor was entitled to reasonable value of extra services and materials provided to
general contractor, in light of uncontroverted testimony that general contractor requested extra services and
materials not covered within original contract with the understanding that they were not to be provided
gratuitously.
5. Interest.
Landscaping subcontractor who was awarded damages in action against general contractor was also
entitled to prejudgment interest. NRS 17.130.
6. Costs.
In action at law, rather than equity, allowance of costs is mandatory and not subject to court's discretion.
7. Costs.
Landscaping subcontractor who was awarded over $1,250 on claim against general contractor for breach
of contract was entitled to award of costs. NRS 18.020.
8. Licenses.
Landscaping subcontractor's lack of specialty license did not bar enforcement of contract against general
contractor, where general contractor had full knowledge of subcontractor's status prior to execution of
contract, subcontractor was granted license shortly after performance, and general contractor would have
been unjustly enriched if enforcement was not permitted. NRS 624.320.
9. Damages.
District court's award of attorney fees as special damages is discretionary, not mandatory.
10. Libel and Slander.
Proof of special damages is an element of the action for slander of title.
General contractor was not entitled to award of attorney fees in action against subcontractor for slander of
title, where claim for special damages was successfully refuted and no dollar amount for actual damages
was proffered.
OPINION
Per Curiam:
Respondent West Coast Holdings, Inc. (West Coast) filed a complaint against appellants
(Ronald J. Day, individually, and dba R.J. Construction Company, and Frank Gonzales)
(R.J.) seeking recovery for breach of a landscaping contract, for slander of title, and to
discharge a mechanic's lien. R.J. counterclaimed seeking recovery for West Coast's breach
of contract, or alternatively, unjust enrichment.
seeking recovery for West Coast's breach of contract, or alternatively, unjust enrichment. The
district court awarded R.J. damages but reduced and offset the original contract price.
1
The
district court denied R.J. recovery for extra services and materials, prejudgment interest and
costs. The district court found in West Coast's favor on its cause of action for slander of title
but did not award any damages. This appeal and cross-appeal followed.
THE FACTS
In March, 1982, Frank Gonzales, an employee of R.J., negotiated a subcontract for
landscaping Newport Cove III, a condominium project, with West Coast's construction
manager. Prior to the execution of the contract Gonzales informed West Coast that while R.J.
did have a Nevada general contractor's license, it did not yet have a specialty landscaping
license. On March 31, 1982, R.J. and West Coast executed the landscaping subcontract. The
contract provided for R.J. to supply landscaping services and materials for a contract price of
$78,000 with a completion date of April 15, 1982.
There was a nine-day delay attributable to West Coast before R.J. commenced work. R.J.
began performance on April 9 and finished the work on May 17, 1982. Other than the initial
nine days, West Coast did not excuse any other delays. There is no evidence that West Coast
suffered any monetary damages as a result of any delays.
After completing its work on May 17, 1982, R.J. demanded payment for the balance due
under the contract. West Coast refused. On May 21, 1982, R.J. filed a mechanic's lien
claiming $44,311.20 as the balance due under the contract. West Coast filed suit and R.J.
counterclaimed.
2

REDUCTION OF PROFIT AND OVERHEAD
In calculating the amount due R.J. under the contract, the district court reduced the
contract price of $78,000 to $58,500 by deducting an amount attributable to R.J.'s 10% profit
and 15% overhead. The district court stated that the basis for this reduction was the
unexcused delay by R.J. in completing the contract and R.J.'s tactics in filing an amended
lien for extra services and materials.
____________________

1
On appeal, R.J. contends that the district court erred in offsetting its damage award with the costs for
additional plumbers provided by West Coast and the cost of the entire breakage and repair of concrete
sidewalks. We reject these contentions. There is substantial evidence in the record to support this portion of the
district court's decision. Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970).

2
After filing suit, West Coast posted a bond to discharge the mechanic's lien and an amended lien
subsequently filed by R.J. for costs for extra services and materials. The trial proceeded as an action for breach
of contract and slander of title rather than as a lien foreclosure action.
was the unexcused delay by R.J. in completing the contract and R.J.'s tactics in filing an
amended lien for extra services and materials. R.J. contends, and we agree, that the district
court erred.
[Headnotes 1, 2]
The only evidence of any pecuniary damage to West Coast due to faulty workmanship by
R.J. was a repair estimate of $2,444. Further, the only damages ever claimed by West Coast
for faulty performance was the repair estimate of $2,444. There is simply no evidence in the
record that West Coast suffered any other damages. Where there is no substantial conflict in
the evidence on any material point and the decision is manifestly contrary to the evidence, the
reviewing court is bound to take remedial action. Avery v. Gilliam, 97 Nev. 181, 182, 625
P.2d 1166, 1168 (1981), Cardan Overseas, Ltd. v. Harris, 92 Nev. 62, 64, 544 P.2d 1202,
1203 (1976). The district court's reduction of the contract price by the 10% profit and 15%
overhead is not supported by substantial evidence. This reduction may therefore not be
sustained on appeal.
EXTRA SERVICES AND MATERIALS
The district court found that the extra services and materials provided by R.J. to West
Coast were gratuitous. R.J. contends, and we agree, that the district court erred in refusing to
award R.J. the reasonable value of its extra services and materials.
[Headnotes 3, 4]
At trial, uncontroverted testimony established that West Coast verbally requested R.J. to
perform extra services and materials not covered within the original contract. Uncontroverted
testimony also established that both parties understood that R.J. was not rendering these
services and materials gratuitously. Where services are requested a presumption arises that
the beneficiary promises to pay the reasonable value of the services. Checker, Inc. v. Zeman,
86 Nev. 216, 467 P.2d 100 (1970). Furthermore, the extra services were actually performed,
extra materials provided, all of which benefited West Coast. Through its conduct West Coast
accepted R.J.'s extra services and materials. The record reveals no evidence to even suggest
that the additional services were gratuitous. The district court's ruling to this effect is clearly
erroneous. Unionamerica Mtg. v. McDonald, 97 Nev. 210, 211, 626 P.2d 1272, 1273 (1981).
PREJUDGMENT INTEREST
[Headnote 5]
The district court awarded legal interest to R.J. as of the date of judgment. R.J. contends
that the district court erred in not awarding prejudgment interest under the provisions of
NRS 17.130.
ing prejudgment interest under the provisions of NRS 17.130. We agree.
3
There is no
evidence supporting the district court's denial of prejudgment interest. R.J. was awarded
judgment under the contract between the parties. The district court erred in failing to award
prejudgment interest. Udevco, Inc. v. Wagner., 100 Nev. 185, 678 P.2d 679 (1984).
FAILURE TO AWARD COSTS
The district court held that each party should bear its own costs. R.J. claims that NRS
18.020 is applicable and mandates the award of costs to R.J.
4

[Headnotes 6, 7]
In an action at law, not equity, the allowance of costs is mandatory and not subject to the
court's discretion. See Randono v. Turk, 86 Nev. 123, 133, 466 P.2d 218, 224 (1970). R.J.
was the prevailing party in an action on the contract and sought to and did recover more than
$1,250. R.J.'s claim falls within the provisions of NRS 18.020. The district court erred in
failing to award costs.
THE CROSS-APPEAL
The district court held that NRS 624.320 did not preclude R.J. from recovering under the
contract.
5
The court also found that West Coast failed to prove any actual damages in its
slander of title action.
____________________

3
* * * * *
2. When no rate of interest is provided by contract or otherwise by law, or specified in the judgment,
the judgment draws interest at the rate of 12 percent per annum from the time of service of the summons
and complaint until satisfied, except for any amount representing future damages, which draws interest at
that rate only from the time of the entry of the judgment until satisfied.

4
Costs must be allowed of course to the prevailing party against any adverse party against whom
judgment is rendered, in the following cases:
* * * *
3. In any action for the recovery of money or damages, where the plaintiff seeks to recover more than
$1,250.

5
No person, firm, copartnership, corporation, association or other organization, or any combination of
any thereof, engaged in the business or acting in the capacity of a contractor shall bring or maintain any
action in the courts of this state for the collection of compensation for the performance of any act or
contract for which a license is required by this chapter without alleging and proving that such person,
firm, copartnership, corporation, association or other organization, or any combination of any thereof,
was a duly licensed contractor at all times during the performance of such act or contract and when the
job was bid.
West Coast failed to prove any actual damages in its slander of title action. West Coast
cross-appeals from these findings.
West Coast contends that NRS 624.320 precludes R.J. from recovering under the contract
because they did not have a specialty landscaping license at the time the parties signed the
contract. West Coast contends that enforcement of the contract is against public policy. We
disagree.
[Headnote 8]
This Court has recognized exceptions to the bar of NRS 624.320. See Nevada Equities v.
William Pease Drilling, 84 Nev. 300, 440 P.2d 122 (1968) and Magill v. Lewis, 74 Nev. 381,
333 P.2d 717 (1958). Prior to the execution of the contract R.J. informed West Coast that
they had an unlimited B-2 general contractor's license from the Nevada State Contractors'
Board; that an application for a specialty landscaping license was pending. The Nevada State
Contractors' Board advised West Coast that R.J. had a general contractor's license, but no
specialty license. West Coast had full knowledge of R.J.'s status prior to the execution of the
contract and knowingly and voluntarily entered into the contract. R.J. subsequently performed
and completed their obligations under the contract to West Coast's benefit. R.J. was granted
the specialty license shortly after the services were performed. Application of NRS 624.320
in the instant case would unjustly enrich West Coast. West Coast cannot claim the benefit of
the contract and then seek to avoid its liability. The court correctly ruled that NRS 624.320
did not preclude R.J.'s recovery. See Nevada Equities, supra.
West Coast next contends that the court erred by refusing to award it damages for slander
of title. Although the court found that the filing of the amended lien by R.J. constituted
slander of title against West Coast's property, the court found that West Coast had failed to
prove any actual damages. West Coast contends that the district court should have awarded
damages for attorney's fees and for the costs it incurred in securing the bond it posted to
discharge the liens.
[Headnotes 9-11]
The district court's award of attorney's fees as special damages is discretionary, not
mandatory. See Summa Corp. v. Greenspun, 96 Nev. 247, 255, 607 P.2d 569, 574 (1980),
reh'g granted, 98 Nev. 528 (1982). West Coast claimed special damages because of its failure
to secure a loan. R.J. successfully refuted this claim at trial. West Coast never proffered a
dollar amount for actual damages. Proof of special damages is an element of the action for
slander of title. Id. at p. 254, 507 P.2d at p. 573. The court did not, therefore, abuse its
discretion by failing to award West Coast its attorney's fees. See Hotel Riviera, Inc. v. Torres,
97 Nev.
399, 632 P.2d 1155 (1981). Since no damages were awarded to West Coast as a result of the
lower court's finding of slander of title, it is unnecessary for this Court to consider whether
the court's finding was error.
CONCLUSION
We reverse and remand that part of the judgment below that reduces R.J.'s damages award
by 10% profit and 15% overhead; that denies R.J. recovery for the reasonable value of the
extra services and materials, and that denies R.J.'s prejudgment interest and costs. We remand
with instructions to the district court to conduct a hearing to determine the amount of
damages due R.J. under the contract. Additionally, the district court shall determine the
reasonable value of the extra services and materials rendered by R.J., and award R.J.
prejudgment interest and costs. The judgment of the district court is affirmed in all other
respects.
____________
101 Nev. 266, 266 (1985) Morris v. Imperial Mortgage Co.
BOBBY MORRIS, Appellant, v. IMPERIAL MORTGAGE COMPANY, a Nevada
Corporation; TUSA REALTY, a Nevada Corporation; EDWARD DeVRIES; FRANCINE
PULLIAM; MIRIAM KIRSCHNER, VINCENT FELGAR; FIRST AMERICAN TITLE
COMPANY OF NEVADA, a Nevada Corporation; FRED NIELSEN FAMILY TRUST,
Respondents.
BOBBY MORRIS, Appellant, v. NIELSEN
FAMILY TRUST, Respondent.
No. 15068
June 20, 1985 701 P.2d 741
Appeal from judgment denying that respondents perpetrated a fraud and/or conspiracy in
procuring the sale of appellant's home. Eighth Judicial District Court, Clark County; Howard
W. Babcock, Judge.
Vendor sued lender upon allegations of false misrepresentations upon which vendor relied
about financial ability and professional status of prospective purchaser of his home. The
vendor also claimed conspiracy to induce him to sell by concealing and misrepresenting
important facts. From adverse judgment of the district court vendor appealed. The Supreme
Court held that: (1) evidence permitted finding that defendants did not perpetrate fraud and/or
conspiracy in procuring sale of plaintiff's home, and {2) there was no duty upon the
mortgage company to seek out the vendor, who was not party to the loan, to inform him
of terms of secondary financing.
(2) there was no duty upon the mortgage company to seek out the vendor, who was not party
to the loan, to inform him of terms of secondary financing.
Affirmed.
George E. Graziadei and Scott M. Cantor, Las Vegas, for Appellant.
Albright, McGimsey & Stoddard and Deaner & Deaner, Las Vegas, for Respondents.
1. Fraud.
Evidence that vendor knew that purchaser's earnest money deposit check had not cleared, that one of his
own attorneys told him that the purchaser was financially unreliable, that purchaser had defaulted to vendor
on agreement to purchase personal property and on rent payments, and that vendor had been told that
purchaser was not a doctor sustained finding that purchaser did not rely on fraudulent representations by
others that purchaser was doctor and financially able to buy his home.
2. Licenses.
Statute dealing with grounds for refusing to license mortgage company precludes mortgage company
from misrepresenting material facts to or concealing material facts from any person in the course of
mortgage company business but did not impose any duty upon mortgage company to seek out vendor, who
was not party to loan being arranged with mortgage company, to inform him of the terms of secondary
financing being obtained by the purchaser. NRS 645B.100, subd. 1(f).
3. Conspiracy.
Evidence that escrow instructions signed by vendor put him on notice of secondary financing sustained
finding that there was no conspiracy by mortgage company and others to conceal or misrepresent the
secondary financing.
4. Motions.
Motion seeking redetermination of factual issues would have been more appropriately raised by motion
for rehearing, and, there being findings supported by substantial evidence, court acted properly in refusing
to amend findings of facts or conclusions of law.
OPINION
Per Curiam:
Appellant sued respondents, alleging they made false representations upon which he relied
about the financial ability and professional status of Lita Grossman, a prospective purchaser
of his home. In addition, appellant claims that respondents conspired to induce him to sell to
Grossman by concealing and misrepresenting important facts. From judgment in favor of
respondents, appellant has appealed.
Appellant first contends there was insufficient evidence to sustain the trial court's ruling.
We do not agree. Where there is conflict in the evidence, the trial court's ruling will not be
disturbed if there is substantial evidence to support that ruling.
conflict in the evidence, the trial court's ruling will not be disturbed if there is substantial
evidence to support that ruling. Udevco, Inc. v. Wagner, 100 Nev. 185, 188-189, 678 P.2d
679 (1984).
[Headnote 1]
Appellant asserted that he relied on respondents' representations that Grossman was a
doctor by profession and financially able to buy his home. We find there was credible
evidence to indicate, however: (1) that appellant knew the buyer's earnest money deposit
check had not cleared; (2) that prior to close of escrow, appellant's own lawyers told him that
the buyer was financially unreliable and the he should not sell; (3) that before escrow closed,
buyer defaulted on an agreement to purchase personal property from appellant; (4) that the
buyer also defaulted in payment of rent to appellant prior to close of escrow; (5) that
respondent Pulliam told appellant prior to close of escrow that Grossman was not a doctor. In
view of the foregoing, appellant's contention that there was insufficient evidence to sustain
the trial court's ruling is without merit.
[Headnote 2]
Appellant next contends that pursuant to NRS 645B.100(1)(f), respondent Imperial
Mortgage Company was required to disclose to appellant the terms and conditions of the
secondary financing. We disagree.
NRS 645B.100, in pertinent part, provides:
1. Grounds for refusing to license any person as a mortgage company and grounds
for suspending any license are that the applicant or licensee:
(f) Has made any misrepresentations or false statement to, or concealed any essential
or material fact from, any person in the course of his business;
A reasonable interpretation of this statute mandated that the mortgage company refrain
from misrepresenting or concealing material facts from any person in the course of the
mortgage company business. Appellant was not such a person. The statute cited imposed no
duty upon respondent Imperial Mortgage Company to seek out appellant who was not a party
to the loan and inform him of the terms of the secondary financing. The record is also barren
of an credible evidence showing a conspiracy among the respondents to conceal or
misrepresent the secondary financing.
[Headnote 3]
Furthermore, the escrow instructions signed by appellant put him on notice of secondary
financing. He made no effort to determine the conditions of the secondary financing after
learning of its existence.
determine the conditions of the secondary financing after learning of its existence.
[Headnote 4]
Finally, appellant contends that the trial court erred in refusing to amend the findings of
fact and conclusions of law. This contention is without merit. Appellant's motion sought a
redetermination of factual issues more appropriately raised by a motion for rehearing. As
such, the Court acted properly in refusing to amend the findings of fact or conclusions of law.
See In re Herrmann, 100 Nev. 1, 20 n. 16, 677 P.2d 594 (1984). Moreover, the findings were
supported by substantial evidence.
Appellant's remaining assignments of error are without merit. Accordingly, we affirm the
trial judge's determination.
____________
101 Nev. 269, 269 (1985) Wright v. State
TOMMY DALE WRIGHT, Appellant, v. THE
No. 15169
June 20, 1985 701 P.2d 743
Appeal from judgment of conviction of robbery with use of a deadly weapon; Eighth
Judicial District Court, Clark County; James A. Brennan, Judge.
Defendant was convicted in the district court of robbery with use of a deadly weapon, and
he appealed. The Supreme Court held that: (1) it was error for prosecution, which had
proceeded on theory that defendant was a principal, to argue halfway through trial that
defendant could be convicted as an aider and abettor, and (2) error required reversal.
Reversed and remanded for a new trial.
Jeffrey D. Sobel, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, Las
Vegas, for Respondent.
1. Indictment and Information.
An indefinite indictment deprives defendant of notice of particular act alleged to have been committed by
accused and deprives defendant of his ability to defend properly against accusation, and therefore indefinite
indictment denies defendant his fundamental rights. U.S.C.A.Const. Amends. 5, 14.
2. Robbery.
Where, during the preliminary hearing, in the information and for over half of the trial, State gave
defendant every indication that it was proceeding under theory that defendant was a
principal in robbery, where the defense was that defendant was not a perpetrator,
and where the State knew approximately four days prior to trial that an accomplice
would testify that defendant waited in the getaway car, it was error to allow State to
argue at trial for conviction of defendant as an aider and abettor without having
amended the information to allege the alternative theory of aiding and abetting.
over half of the trial, State gave defendant every indication that it was proceeding under theory that
defendant was a principal in robbery, where the defense was that defendant was not a perpetrator, and
where the State knew approximately four days prior to trial that an accomplice would testify that defendant
waited in the getaway car, it was error to allow State to argue at trial for conviction of defendant as an aider
and abettor without having amended the information to allege the alternative theory of aiding and abetting.
NRS 173.075, subds. 1, 2, 195.020.
Good faith of state did not alleviate prejudicial effect of denying defendant's due process rights by
changing theory from charging defendant as principal to proceeding against him as aider and abettor. NRS
173.075, subds. 1, 2, 195.020; U.S.C.A.Const. Amends. 5, 14.
4. Criminal Law.
Where State improperly changed its theory during trial to assert that defendant might be held liable as an
aider and abettor and where it was not clear whether jury convicted defendant as a principal or as an aider
and abettor, the error required reversal.
OPINION
Per Curiam:
A jury convicted appellant Tommy Dale Wright of robbery with use of a deadly weapon.
Wright appeals, seeking reversal on several grounds, only one of which we shall consider as it
is dispositive of this appeal: that the Information failed to include a count charging Wright
with aiding and abetting in the commission of the crime. Barren v. State, 99 Nev. 661, 669
P.2d 725 (1983).
On September 14, 1982, at approximately 4:10 a.m., two armed men robbed Little Caesars
Casino in Las Vegas. The robbers took approximately $8,600. At around 9:15 a.m., that same
morning, police in Blythe, California, arrested three men: Anthony Hisaw, Haywood
Clemons, and Tommy Dale Wright. Wright owned the car in which they were driving. The
police found a handgun and a plastic bag containing $8,436. Clemons and Wright were
brought back to Nevada and charged with the robbery. Hisaw was not charged in this case.
Clemons pleaded guilty to a lesser charge of attempted robbery with the use of a deadly
weapon.
At Wright's preliminary hearing, the State's witness identified Wright as the man who
carried a revolver during the robbery. The State filed an Information charging Wright with
commission of robbery with the use of a deadly weapon. At trial, the State produced two
eyewitnesses to the robbery of the casino. Both identified Wright as one of the perpetrators.
Wright's defense was that this was a mistaken identification and that he was not even inside
the casino at the time of the robbery. Two-thirds into the trial the State called Haywood
Clemons to testify.
trial the State called Haywood Clemons to testify. Clemons testified that he and Hisaw were
the perpetrators of the robbery. Clemons testified that Wright was outside in the car and
unaware of the robbery. Clemons testified that Wright only became aware of the robbery
during the drive to California.
During its closing argument the prosecutor stated to the jury, You and I know that Mr.
Wright was most likely not in the casino. The jury received instructions on the vicarious
liability of aiders and abettors. When it became apparent that the State had changed its theory,
Wright moved for a mistrial. The trial court denied the motion. The jury found Wright guilty
of robbery with use of a deadly weapon. After trial, Wright filed a motion for a new trial on
the same basis as the motion for a mistrial. The trial court also denied this motion. Wright
argues that the State impermissibly changed its theory from charging Wright as a principal to
proceeding against him as an aider and abettor. We agree.
[Headnote 1]
NRS 195.020 provides that an aider and abettor to a felony shall be proceeded against and
punished as a principal.
1
NRS 173.075(1) required that the indictment or Information shall
contain a definite written statement of the essential facts constituting the offense charged.
2
NRS 173.075(2) indicates that this should either include the means by which the offense was
accomplished or show the means are unknown.
3
Simpson v. District Court, 88 Nev. 654,
658, 503 P.2d 1225, 1228 (1972). An indefinite indictment deprives a defendant of notice
of the particular act alleged to have been committed by the accused and deprives the
defendant of his ability to defend properly against the accusation. Id. Therefore, an
indefinite indictment denies a defendant his fundamental rights.
____________________

1
NRS 195.020 states:
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. The fact that the person aided, abetted, counseled,
encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal intent shall
not be a defense to any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing
or procuring him.

2
The indictment or the information shall be a plain, concise and definite written statement of the essential
facts constituting the offense charged. It shall be signed by the district attorney or by the attorney general
acting pursuant to NRS 228.170. It need not contain a formal commencement, a formal conclusion or any
other matter not necessary to such statement.

3
Allegations made in one count may be incorporated by reference in another count. It may be alleged in a
single count that the means by which the defendant committed the offense are unknown or that he
committed it by one or more specified means.
indefinite indictment deprives a defendant of notice of the particular act alleged to have been
committed by the accused and deprives the defendant of his ability to defend properly against
the accusation. Id. Therefore, an indefinite indictment denies a defendant his fundamental
rights. Id.
In Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983), this Court stated:
Although 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.
This Court then held:
[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 on constituting the means
of the aiding and abetting so as to afford the defendant adequate notice to prepare his
defense.
Id.
[Headnotes 2, 3]
During the preliminary hearing, in the Information, and for over half the trial, the State
gave Wright every indication that the State was proceeding under the theory that Wright was
a principal in the robbery. Wright's defense was that he was not a perpetrator of the robbery.
Wright had no notice that he was also being prosecuted as an aider and abettor. The State
interviewed Clemons approximately four days prior to trial and knew the substance of
Clemons' testimony at that time. The State failed to amend the Information to allege the
alternative theory of aiding and abetting. The State argues that although it failed to allege the
aiding and betting theory, it did so in good faith. Good faith does not alleviate the prejudicial
effect in denying Wright's due process rights. The State must give Wright adequate notice of
the aiding and abetting charge so that he may prepare his defense. Barren, supra.
[Headnote 4]
It is not clear whether the jury found Wright guilty as a principal or as an aider and abettor.
The State's final argument and the jury instructions indicate that the basis of the jury's
conviction could have been under either theory. Because the State failed to amend its
Information to plead the aider and abettor theory as required by Barren, Wright's conviction
is reversed and remanded for a new trial.
theory as required by Barren, Wright's conviction is reversed and remanded for a new trial.
On remand, the State shall, upon proper motion, be permitted to amend the Information to
include, as an alternative theory, allegations of the facts which would establish appellant's
guilt as an aider and abettor.
____________
101 Nev. 273, 273 (1985) Kellar v. Brown
CHARLES L. KELLAR, CHARMICOR, Inc., and BETTYE KELLAR, Appellants, v.
WILLIAM W. BROWN, Respondent.
No. 15617
June 20, 1985 701 P.2d 359
Appeal from judgment entered pursuant to jury verdict, Eighth Judicial District, Clark
County; Norman C. Robison, Judge.
Purchaser brought action against defendants for allegedly inducing him to buy home
infested by termites by producing favorable inspection report that they had reason to know
was false. The district court entered judgment in favor of purchaser, and defendants appealed.
The Supreme Court held that: (1) purchaser presented substantial evidence to support jury's
award of compensatory damages, but (2) award of $40,000 in punitive damages was
unjustified; $7,500 was the maximum amount that could be reasonably awarded under the
circumstances.
Affirmed with remittitur.
[Rehearing denied September 24, 1985]
Charles L. Kellar, Las Vegas, for Appellants.
Denton & Denton, Las Vegas, for Respondent.
1. Fraud.
Purchaser presented substantial evidence to support award of $7,900 in compensatory damages against
defendants, who induced purchaser to buy home infested with termites by producing favorable inspection
report that they had reason to know was false.
2. Fraud.
Award of $40,000 in punitive damages against defendants, who induced plaintiff to purchase home
infested by termites by producing favorable inspection report that they had reason to know was false, was
unjustified; $7,500 was the maximum amount that could be reasonably awarded, as defendants attempted to
settle dispute by suggesting prospect of rescission, so that punitive award of more than five times plaintiff's
actual damages was disproportionate and unnecessary to deter defendants from like wrongdoing in the
future.
101 Nev. 273, 274 (1985) Kellar v. Brown
OPINION
Per Curiam:
This appeal challenges a judgment entered upon a jury verdict, which was returned in
action based on breach of warranty and on fraud. The dispute involved the sale of a house
allegedly infested by termites. The thrust of respondent's complaint is that, although
appellants Charles Kellar and Charmicor corporation allegedly knew of the termites, they
induced respondent to purchase the home by producing a favorable inspection report that they
had reason to know was false. On appeal, appellants contend that the jury's award of $7,900
compensatory damages, and the award of $40,000 punitive damages, are not supported by
substantial evidence.
[Headnotes 1, 2]
Our review of the record indicates that respondent presented substantial evidence to
support the jury's award of compensatory damages. We have concluded, however, that for a
number of reasons the award of $40,000 in punitive damages is unjustified. In the first place,
it appears that when respondent initially complained about the presence of termites,
appellants attempted to settle the dispute by suggesting the prospect of a rescission. We
cannot know, of course, whether appellants would have been willing to make full restitution
for all of respondent's damages, for respondent did not pursue negotiations in this regard. It
appears, however, that appellants showed some disposition to compose differences with
respondent in an amicable manner. Moreover, although we believe the record will support a
finding that the appellant initially intended to deceive respondent, the evidence might also be
interpreted in a more charitable light. For these reasons, and others, we believe a punitive
award of more than five times respondent's actual damages is disproportionate and
unnecessary to deter appellants from like wrongdoing in the future.
In our view, $7,500 is the maximum amount that could be reasonably awarded under the
circumstances. The judgment will therefore be set aside and a new trial will be ordered on the
issue of punitive damages, unless respondent Brown files within fifteen days of the date of
filing of this opinion a remittitur damna in which all amounts over $15,400 are remitted. In
the event of such remission the judgment will be affirmed.
1
See, Nevada Ind. Broadcasting
v. Allen, 99 Nev. 404, 664 P.2d 337 (1983); Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824
(1962).
Appellants' remaining contentions have been considered and have been found to lack
merit.
____________________

1
The judgment, as conditionally modified, is computed as follows: compensatory damages, $7,900; punitive
damages, $7,500; total, $15,400.
____________
101 Nev. 275, 275 (1985) Jones v. Viking Freight System
DOLORES JONES, CHARLENE FLOWERS, CHARLOTTE JONES and CLINTON
JONES, Appellants, v. VIKING FREIGHT SYSTEM, INC., Respondent.
No. 15835
June 20, 1985 701 P.2d 745
Appeal from jury verdict in a wrongful death action; Second Judicial District Court,
Washoe County; Norman C. Robison, Judge.
Wrongful death action was brought. The district court entered judgment for defendant, and
survivors appealed. The Supreme Court held that evidence did not support giving sudden
emergency instruction.
Affirmed.
Bradley & Drendel, Reno, for Appellants.
Erickson, Thorpe, Swainston & Cobb, Ltd. and Lawrence D. Wishart, Reno, for
Respondent.
1. Trial.
Party is entitled to have jury instructed on all of his theories of the case that are supported by evidence;
however, district court should not give instruction unless it is supported by evidence.
2. Automobiles.
In wrongful death action arising out of automobile accident, evidence that deceased driver drove on road
shoulder at estimated speed of 65 m.p.h. in order to pass truck, and struck the truck when he returned to
driving lane and was spun across highway where his car was demolished by oncoming logging truck unable
to avoid hitting it did not support giving jury instruction on sudden emergency.
3. Costs.
Under statute [NRS 18.005], providing for taxation of costs, costs of depositions not used at trial could
be taxed.
OPINION
Per Curiam:
This appeal is from a jury verdict in favor of the defendant, Viking Freight System, Inc., in
a wrongful death action brought by the survivors of the decedent, Lawrence Jones.
The accident which brought these parties to trial occurred on January 25, 1983, on U.S.
395 just south of Gardnerville. At the point of the accident, the road consists of two driving
lanes, a turn lane, and wide shoulders. In this particular stretch of highway the speed zone
changes from 35 mph to 45 mph and then to 55 mph within a fairly short distance. The Jones
car was traveling at approximately 35 to 45 mph. The Viking truck had entered the turn lane
in order to pass an automobile following the Jones car, and continued to pass the Jones
car while in the turn lane.
turn lane in order to pass an automobile following the Jones car, and continued to pass the
Jones car while in the turn lane. Because the road was narrowing, the Viking truck pulled into
the driving lane in an attempt to pass the Jones car, thereby abruptly cutting off the Jones
car and forcing it onto the shoulder.
Eyewitness testimony indicated that Mr. Jones did not lose control of his vehicle. He did
not apply his brakes or slow down, but rather accelerated to a speed in excess of that of the
Viking truck in an attempt to pass the Viking truck on the right while continuing to drive on
the shoulder of the road. Apparently, there was nothing which would have prevented Jones
from stopping or slowing down.
The Jones vehicle traveled approximately 1,150 feet on the shoulder at an estimated speed
of 65 mph in an effort to pass the Viking truck and knocked down three road markers. Jones
eventually passed the Viking truck on the right and cut in front of the Viking truck to reenter
the driving lane. At that point, contact between the two vehicles was made, and the Jones car
spun across the highway. It was demolished by an oncoming logging truck unable to avoid
hitting it. Mr. Jones did not survive the collision with the logging truck.
At the trial appellants' counsel proposed a jury instruction dealing with the sudden
emergency doctrine. After receiving points and authorities concerning the use of this
instruction, and listening to argument by counsel, the district court refused to give the
instruction under the facts of this case.
[Headnotes 1, 2]
Appellants first contend that the district court erred by refusing to give a sudden peril
instruction to the jury. We disagree. A party is entitled to have the jury instructed on all of his
theories of the case that are supported by the evidence. American Cas. Co. v. Propane Sales &
Serv., 89 Nev. 398, 513 P.2d 1226 (1973). The district court should not, however, give an
instruction unless it is supported by the evidence. Village Development Co. v. Filice, 90 Nev.
305, 526 P.2d 83 (1974). Refused Jury Instruction No. 1
1
is predicted by its own terms on an
absence of liability by the plaintiff in bringing about the sudden emergency. Our review of the
record persuades us that the perilous circumstances resulting in Jones' death did not arise in a
sudden manner, but arose as a natural consequence of his own manifestly inappropriate
volitional acts.
____________________

1
Plaintiff's Refused Jury Instruction Number 1:
Where one without fault of his own is placed in a position of great mental stress or sudden
emergency, the same degree of judgment and care is not required of him as is required of one who is
acting under normal conditions. The test to be applied is whether or not the person in such a position of
great mental stress or sudden emergency did or attempted to do what a reasonable careful person would
have done under the same or similar circumstances.
but arose as a natural consequence of his own manifestly inappropriate volitional acts.
Because the facts did not support appellants' theory of sudden peril, the district court did not
err in refusing to give this instruction to the jury.
[Headnote 3]
Relying on Scott v. Smith, 73 Nev. 158, 311 P.2d 731 (1957), and Armstrong v. Onufrock,
75 Nev. 342, 341 P.2d 105 (1959), appellants also contend that the district court should not
have taxed as costs the depositions not used at trial. We disagree. NRS 18.005,
2
adopted
after our decisions in the above cited cases, defines costs as reporters' fees for depositions,
including a reporter's fee for one copy of each deposition. To the extent that the statute does
not require that the deposition be utilized at trial to be a taxable cost, appellants' contention is
without merit.
We have reviewed appellants' remaining contentions and have concluded that they are
without merit. Accordingly, we affirm the judgment of the district court in all respects.
____________________

2
NRS 18.005 states, in pertinent part:
For the purposes of NRS 18.010 to 18.150, inclusive, the term cost means:
1. Clerks' fees.
2. Reporters' fees for depositions, including a reporter's fee for one copy of each deposition.
____________
101 Nev. 277, 277 (1985) Costanzo v. Marine Midland Realty
FRANK W. COSTANZO, Appellant, v. MARINE MIDLAND REALTY CREDIT
CORPORATION, Respondent.
No. 15502
June 21, 1985 701 P.2d 747
Appeal from a judgment entered after a bench trial. Second Judicial District Court,
Washoe County; William N. Forman, Judge.
Suit was brought against guarantor seeking to hold him liable on a note that he guaranteed.
The district court held that: (1) substantial evidence supported finding that guarantor had
made a valid waiver of his right to discharge of his liability upon creditor's release of a
portion of trust deed on certain collateral; (2) guarantor's liability on a promissory note was
not extinguished by proposed agreement between creditor and obligor, which would have
constituted a novation if the agreement had been consummated; and (3) remand was
appropriate to allow district court to make further findings concerning a $30,000 letter of
credit which creditor received from obligor and to calculate the amount of judgment in
light of those findings.
credit which creditor received from obligor and to calculate the amount of judgment in light
of those findings.
Frederick A. Cone, San Francisco; Michael C. Farris, Incline Village, for Appellant.
Gene R. Barbagelata, Reno; Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N.Y., for
Respondent.
1. Contracts.
Express intention of parties as to applicable law in construction of a contract is controlling if the parties
acted in good faith and not to evade the law of the real situs of the contract.
2. Guaranty.
District court properly applied New York law in determining guarantor's liability on promissory note
given in connection with a loan where all documents relating to the loan and the guarantee provided that
New York law would govern the transaction where creditor and obligor were both New York corporations,
where principal place of business of the original creditor was New York, where loan documents were
executed in New York and disbursement of a loan made from a New York bank and where there was no
evidence that bad faith motivated the choice of New York law.
3. Guaranty.
Under New York law, a guarantor may waive his right to discharge upon a variation of the underlying
obligation or upon creditor's release of collateral.
4. Guaranty.
Substantial evidence supported finding that guarantor had made a valid waiver of his right to discharge of
his liability upon creditor's release of a portion of trust deed on certain collateral.
5. Guaranty.
Guarantor's liability on a promissory note was not extinguished by proposed agreement between creditor
and obligor, which would have constituted a novation if the agreement had been consummated.
OPINION
Per Curiam:
Appellant Frank Costanzo appeals from a judgment against him on a note he guaranteed.
We affirm the judgment as to his liability but reverse and remand for further findings on the
amount of the award.
In January 1975, Costanzo guaranteed a $2.3 million loan made previously to James and
Phyllis Temple and Jerome Appleby (the Temples). Costanzo was a shareholder in the
Temples' corporation, Temple Village, Inc. Costanzo was an experienced businessman and a
certified public accountant. The Temples borrowed the money from Dominion Mortgage
and Realty Trust {Dominion) to finance a condominium project called Shoreline Villas in
Reno.
Temples borrowed the money from Dominion Mortgage and Realty Trust (Dominion) to
finance a condominium project called Shoreline Villas in Reno. Respondent Marine Midland
Realty Credit Corporation (Marine) acquired the loan from Dominion. As of October 19,
1975, the loan was in default.
Marine sued the Temples on the note in 1978 and joined Costanzo as a defendant in 1980.
Marine settled with the Temples in exchange for $100,000 cash and a letter of credit for
$30,000. Marine proceeded to trial against Costanzo alone. After a bench trial, Costanzo was
found liable as guarantor for the remainder due on the note. The amount due on the note plus
interest was $355,473.69. The district court subtracted $100,000 from this amount. Thus, the
judgment against Costanzo totalled $255,473.69 plus attorneys' fees. This appeal followed.
[Headnotes 1, 2]
On appeal, Costanzo suggests that the district court erred by applying New York law. We
disagree. All the documents relating to the loan, including the loan agreement, the note, the
trust deed on the Shoreline Villa land, the Temples' guaranty and Costanzo's guaranty,
provided that New York law would govern the transaction. This Court has held, the
expressed intention of the parties as to the applicable law in the construction of a contract is
controlling if the parties acted in good faith and not to evade the law of the real situs of the
contract. Sievers v. Diversified Mtg. Investors, 95 Nev. 811, 815, 603 P.2d 270 (1979).
Sievers also required that the state whose law is chosen must have a substantial relation to the
transaction. Undisputed evidence indicates that this requirement was met: both Marine and
Temple Village, Inc. were New York corporations; the principal place of business of the
original creditor, Dominion, was New York; the loan documents were executed in New York;
and the disbursements on the loan were made from a New York bank. Further, there was no
evidence that bad faith motivated the choice of New York law. We hold that the district court
properly applied New York law to this transaction.
[Headnotes 3, 4]
Next, Costanzo argues that his liability as guarantor was discharged or extinguished by
Marine's dealings with the Temples. Costanzo claims that Marine's reconveyance to the
Temples of a portion of the trust deed on the Shoreline Villa property discharged his liability.
Under New York law, a guarantor may waive his right to discharge upon a variation of the
underlying obligation or upon the creditor's release of collateral. Manufacturers and Traders
Trust Co. v. Tronolone, 419 N.Y.S.2d 370 (N.Y.App. 1979); Chase Manhatten Bank, N.A. v.
Kahn, 411 N.Y.S.2d 245 {N.Y.App.
N.Y.S.2d 245 (N.Y.App. 1978). Costanzo's guaranty contained such a waiver.
1
The district
court found that Costanzo had made a valid waiver of his right to discharge upon Marine's
release of a portion of the trust deed. Because that finding was supported by substantial
evidence we decline to disturb it. Udevco v. Wagner, 100 Nev. 185, 678 P.2d 679 (1984).
Costanzo's argument that his liability was discharged is meritless.
[Headnote 5]
Costanzo also suggests that his liability was extinguished by an arrangement between
Marine and the Temples which amounted to a novation. Marine reconveyed to the Temples
part of the trust deed on the Shoreline Villa property in July 1977. Marine and the Temples
intended to execute a new note, guaranteed by the Temples alone, for the remaining balance
of the loan to be secured by a new trust deed on the Shoreline Villa property. The documents
for this arrangement were drafted in September 1977, but they were never signed or executed.
Because the agreement had not been consummated, the district court found no novation came
into existence. We agree. See generally Dolge v. Masek, 70 Nev. 314, 268 P.2d 919 (1954).
Therefore, Costanzo's liability was not extinguished by the proposed agreement between
Marine and the Temples. We affirm the lower court's finding that Costanzo was liable as
guarantor of the note.
At the time of trial, the total due on the note plus interest was $355,473.69. The district
court subtracted $100,000 to obtain $255,473.69 plus attorney's fees as the amount of
Marine's award. The $100,000 equaled the cash amount that Marine received in settlement
from the Temples. Marine also received, however, a $30,000 letter of credit from the
Temples. The district court gave no reason for failing to subtract this $30,000 nor does any
justification for the apparent discrepancy appear in the record. Further, at oral argument
before this Court, neither counsel could represent whether Marine had received any payments
under the letter of credit. We conclude that remand is appropriate to allow the district court to
make further findings concerning the $30,000 letter of credit and to calculate the amount of
the judgment in light of these findings.
Appellant's remaining assignments of error are without merit. Therefore, we affirm the
decision of the lower court on the question of Costanzo's liability but remand for the limited
purpose of determining the dollar amount of the judgment.
____________________

1
Paragraph 3 of Costanzo's Guaranty provides in part:
The liability hereunder of the undersigned shall not be impaired, altered or otherwise altered or otherwise
affected . . . by any neglect, failure or omission to hold, protect or rely or realize upon any such other or
additional security or guaranty, or by release of all or any portion of such other or additional security or
guaranty. . . .
____________
101 Nev. 281, 281 (1985) Matley v. Matley
MARSHALL R. MATLEY, Appellant and Cross-Respondent, v. DOROTHY MATLEY,
Respondent and Cross-Appellant.
No. 15632
June 21, 1985 701 P.2d 749
Appeal and cross-appeal from judgment in a divorce proceeding disposing of the parties'
property. Second Judicial District Court, Washoe County; John W. Barrett, Judge.
In divorce action, the district court found one half of a time certificate deposit, purchased
with husband's separate property, to be gift from husband to wife, and husband appealed. The
Supreme Court held that trial court erred in finding gift of one half of certificate to wife, in
light of antenuptial agreement creating conclusive presumption that property purchased with
individual spouse's separate funds was not intended to be gift.
Reversed in part, affirmed in part.
Sinai & Schroeder, Reno, for Appellant and Cross-Respondent.
Petersen & Petersen, Reno, for Respondent and Cross-Appellant.
Husband and Wife.
Where husband and wife had entered antenuptial agreement providing that property purchased with one
spouse's funds would remain his or her separate property, and husband thereafter noted on stub of time
certificate deposit purchased with his own money that it was under the antenuptial agreement, trial court
erred in interpreting one half of certificate to be gift from husband to wife; husband's statement, when he
purchased certificate naming himself and wife as tenants in common, that he was going to give wife half
of this was meant only to refer to interest on certificate.
OPINION
Per Curiam:
The lower court found one-half of a time certificate deposit (TCD), purchased with
Marshall's separate property, to be a gift from Marshall to Dorothy. Marshall contends the
evidence does not support such a finding and that the trial court therefore erred. We agree
with Marshall's contention and accordingly, for the following reasons, reverse the lower
court's decision as it pertains to the above described issue.
Shortly before the parties to this action married, Marshall completed a two-year divorce
ordeal involving his prior wife. As a result of that experience, Marshall insisted he would
not marry again without an antenuptial agreement.
a result of that experience, Marshall insisted he would not marry again without an antenuptial
agreement. Accordingly, prior to the marriage between the instant parties, the couple
executed an antenuptial agreement. This agreement purported to identify the parties' separate
property prior to their marriage and contained a provision specifying that if either party,
during the marriage, used his or her separate property to acquire or improve property held by
the parties jointly or in common, the contributing party would be entitled to a return of any
such contribution in the event of a divorce. Additionally, it was to be conclusively presumed
that the contributing party did not intend to make a gift thereof.
1

The parties married on October 24, 1978. The schedule of Marshall's assets attached to the
antenuptial agreement listed a note obligation in the amount of $100,000 from J. Ribiero.
This obligation was paid during the marriage. Marshall took the principal thereof and
purchased a time certificate of deposit naming himself and Dorothy as tenants in common and
noting on the stub that it was under the antenuptial agreement. Marshall testified it was his
intention that half the interest would be Dorothy's so long as they were married. The
certificate matured and was rolled over as to the principal, and the interest was divided
equally with Dorothy on more than on occasion, even during the pendency of the divorce.
When Marshall first purchased the TCD, he called Dorothy over while at the bank and told
her he was going to give her half of this because she had worked so hard for him and had
been good to Frances, his daughter. The trial court interpreted Marshall's comment as
applying to the principal of the instrument and held that Dorothy was entitled to one-half of
the principal and interest of the certificate. We are convinced this was error.
There is no contention that the antenuptial agreement was unconscionable, obtained
through fraud, misrepresentation, material nondisclosure or duress. Indeed, the trial court
found the agreement to be valid and binding upon the parties. In the absence of evidence of
modification by the parties, the agreement must be enforced as written. See Buettner v.
Buettner, 89 Nev. 39, 505 P.2d 600 (1973).
The circumstances surrounding the purchase of the time certificate of deposit are precisely
of the type contemplated by the antenuptial agreement.
____________________

1
The relevant portion of the antenuptial agreement specifically provides as follows:
If during the marriage, either party contributes his or her separate funds or property to the acquisition
or improvement of property held by the parties jointly or in common, the party contributing such funds or
property shall be entitled to a return of such contribution in the event of a divorce. In such event, it shall
be conclusively presumed that the party making such a contribution did not intend to make a gift thereof
to the other party or to the community.
antenuptial agreement. Dorothy interpreted half of this as pertaining to the principal of the
certificate. There is, however, no evidence to support the finding that Marshall intended to
make a gift of one-half of the principal of the certificate. The notation on the stub, made by
Marshall contemporaneously with his statement to Dorothy clearly reflects an intent by
Marshall to have the certificate covered by the antenuptial agreement. Marshall so testified at
trial, indicating that he intended that Dorothy receive one-half of the interest. Dorothy's name
was included on the certificate as a tenant in common since, according to Marshall's
testimony, he desired Dorothy to have one-half of the principal in the event Marshall died
while he and Dorothy were still married. The antenuptial agreement was valid and applicable
and there is no evidence to show it was ever superseded in this instance. In sum, the facts of
this case do not support Dorothy's contention or the trial court's finding.
This Court has held that the lower court's decision may be disturbed when there is no
substantial conflict in the evidence on any material point and the decision is manifestly
contrary to the evidence. Avery v. Gilliam, 97 Nev. 181, 625 P.2d 1166 (1981). Marshall is
entitled to the entire principal of the time certificate and we therefore reverse the lower court's
judgment on that issue.
We have additionally taken into account the parties' remaining contentions of error and
consider them to be without merit. Accordingly, with the exception of the issue disposed of
by this opinion, we affirm the remainder of the district court's judgment.
____________
101 Nev. 283, 283 (1985) Meers v. Haughton Elevator
RUTH L. MEERS, Appellant, v. HAUGHTON ELEVATOR, a Division of Reliance Electric
Company, a Delaware Corporation; DOES I-V and ROE
CORPORATION IV, Respondents.
No. 15857
June 21, 1985 701 P.2d 1006
Appeal from summary judgment in favor of respondent Haughton Elevator; Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Action was brought against elevator maintenance sub-contractor for injuries sustained by
plaintiff while she was in malfunctioning elevator at her place of employment. The district
court entered summary judgment in favor of sub-contractor, and plaintiff appealed. The
Supreme Court held that plaintiff could maintain action against sub-contractor
notwithstanding common-law limitations under Industrial Insurance Act, since
specialized maintenance conducted by sub-contractor was not part of plaintiff's
employer's normal business and, thus, plaintiff's employer was not sub-contractor's
statutory employer.
maintain action against sub-contractor notwithstanding common-law limitations under
Industrial Insurance Act, since specialized maintenance conducted by sub-contractor was not
part of plaintiff's employer's normal business and, thus, plaintiff's employer was not
sub-contractor's statutory employer.
Albert D. Massi, Las Vegas, for Appellant.
Lorin D. Parraguirre, Las Vegas, for Respondent.
Employers, and persons in same employ as person injured in course of employment, are immune under
Industrial Insurance Act [NRS 616.010 et seq.] from liability in civil action. NRS 616.560.
For purposes of determining whether protection of Industrial Insurance Act [NRS 616.010 et seq.]
from civil liability applies to specific sub-contractor or independent contractor, type of work performed by
sub-contractor or independent contractor will determine whether its employer is its statutory employer.
NRS 616.085, 616.115, 616.560.
Plaintiff could bring action against elevator maintenance sub-contractor for injuries sustained while she
was in malfunctioning elevator at place of employment, notwithstanding common-law limitations under
Industrial Insurance Act [NRS 616.010 et seq.], since specialized maintenance conducted by
sub-contractor was not part of plaintiff's employer's normal business and, thus, plaintiff's employer was not
sub-contractor's statutory employer. NRS 616.085, 616.115, 616.560.
OPINION
Per Curiam:
Appellant Ruth L. Meers was employed by Central Telephone Company (Centel) as a
business office supervisor in Las Vegas, Nevada. Inside the office building in which Meers
worked, was an elevator which was maintained by respondent Haughton Elevator Company
(Haughton). Haughton had a contract with Centel to perform maintenance on the elevator. On
March 30, 1978, Meers was in the elevator when it malfunctioned. The movement of the
elevator caused Meers to be jostled around, and as a result she sustained injuries to her
shoulder, neck, and arm. At the time of the accident, both Centel and Haughton were
separately insured under the Nevada Industrial Insurance Act. The Nevada Insurance
Commission (NIC) determined that Meers' claim was compensable under Chapter 616 of
Nevada Revised Statutes. She executed an award and election of payment of compensation on
January 21, 1979.
Meers then filed a civil action in the district court against Haughton. Summary judgment
was granted against Meers on the grounds that Haughton was a statutory co-employee of
Meers and was therefore immune from liability under NRS 616.560.
grounds that Haughton was a statutory co-employee of Meers and was therefore immune
from liability under NRS 616.560. The district court ruled that Haughton was the
sub-contractor of Centel, and thus was a statutory employee of Centel, immune from liability
under NRS 616.560.
Industrial insurance is a limitation on common law liability. The reason for the
employer's immunity is the quid pro quo by which the employer gives up his normal defenses
and assumes automatic liability, while the employee gives up his right to common-law
verdicts. 2A Larson, Laws of Workman's Compensation, 72.22, 14-86 (1983). In Nevada,
as in most states, this umbrella of protection extends beyond the employer and covers all of
the employees of that employer. NRS 616.560.
[Headnote 1]
It is well established that employers, and persons in the same employ as a person injured in
the course of employment, are immune from liability under the Nevada Industrial Insurance
Act. The introductory paragraph of NRS 616.560 defines those third parties who can be sued
in a civil action by an injured employee:
1. When an employee coming under the provisions of this chapter receives an injury
for which compensation is payable under this chapter and which injury was caused
under circumstances creating a legal liability in some person, other than the employer
or person in the same employ, to pay damages in respect thereof . . . [that employee
may bring proceedings against that person].
NRS 616.560 (emphasis added).
Nevada's Industrial Insurance Act is uniquely different from industrial insurance acts of
some states in that sub-contractors and independent contractors are accorded the same status
as employees. NRS 616.085;
1
NRS 616.115,
2
Argonez v. Taylor Steel Co., 85 Nev. 718,
720, 462 P.2d 754, 755-56 (1969). While the legislature afforded this umbrella or protection
to sub-contractors and independent contractors, the protection is by no means absolute. There
is some limit to its coverage.
3
In order to make the determination of which types of
sub-contractors and independent contractors are covered, it is necessary to make an
initial determination as to the statutory employer.
____________________

1
Employee: Subcontractors and employees. Subcontractors and their employees shall be deemed to be
employees of the principal contractor.

2
Subcontractors defined: Subcontractors shall include independent contractors.

3
It is easy to see that in the construction business, sub-contractors and independent contractors will
invariably be held to be statutory employees of the general contractor. Outside the construction field, however,
determining which sub-contractors and independent contractors are employees for purposes of the Act is a
determination of great importance.
make the determination of which types of sub-contractors and independent contractors are
covered, it is necessary to make an initial determination as to the statutory employer. Farish v.
Courion Industries, Inc., 722 F.2d 74 (4thCir. 1983). In other words, if Centel is not deemed
to be the statutory employer of Haughton, then Haughton could not be a statutory employee.
Therefore, Haughton could not be a statutory co-employee of Meers, protected from liability
under the Nevada Industrial Insurance Act.
[Headnote 2]
The type of work performed by the sub-contractor or independent contractor will
determine whether the employer is the statutory employer:
[T]he test is not one whether the subcontractor's activity is useful, necessary, or even
absolutely indispensable to the statutory employer's business, since, after all, this could
be said of practically any repair, construction or transportation service. The test (except
in cases where the work is obviously a subcontracted fraction of a main contract) is
whether that indispensable activity is, in that business, normally carried on through
employees rather than independent contractors.
Bassett Furniture Industries, Inc. v. McReynolds, 224 S.E.2d 323 (Va. 1976) (emphasis
added; citations omitted).
This normal work test has been applied in many cases involving sub-contracted
maintenance activities. The general rule is that [m]ajor repairs, or specialized repairs of the
sort which the employer is not equipped to handle with his own force, are held to be outside
his regular business. . . .' Farish, 722 F.2d at 80 (quoting 1C Larson, Law of Workmen's
Compensation 49.12, 9-37 to 9-39); see also Basset Furniture Industries, Inc. v.
McReynolds, 224 S.E.2d 323 (Va. 1976).
[Headnote 3]
We conclude that the specialized maintenance conducted by Haughton was not part of
Centel's normal business. Although Centel had to maintain its physical facilities as part of its
everyday function, as the great majority of cases illustrates, specialized maintenance
requiring skills and expertise not possessed by its employees is not a normal part of
maintaining its building. Farish, 722 F.2d at 81.
Therefore, since Centel is not deemed to be the statutory employer of Haughton, Haughton
cannot be deemed to be the co-employee of any of Centel's employees. Thus, Meers may
maintain an action against Haughton notwithstanding the common-law limitations under the
Industrial Insurance Act.
Accordingly, this case is reversed and remanded to the district court for trial.
____________
101 Nev. 287, 287 (1985) Boyes v. Valley Bank
GERALD L. BOYES and PATRICIA A. BOYES, husband and wife; and PHYLLIS BLAKE,
Appellants, v. VALLEY BANK OF NEVADA, a Nevada Corporation; and FIRST
COMMERCIAL TITLE, INC., a Nevada Corporation, Respondents.
No. 14076
June 21, 1985 701 P.2d 1008
Appeal from an order denying a motion for a temporary restraining order and a preliminary
injunction, Second Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Vendors who had transferred land filed complaint seeking declaration that beneficiaries'
exercise of due on sale clause under deed of trust constituted unreasonable restraint on their
right to alienate property, and requested issuance of temporary restraining order and
preliminary injunction restraining beneficiary from exercising power of sale contained in
deed of trust. The district court denied request for temporary restraining order and preliminary
injunction. Vendors appealed. The Supreme Court held that: (1) window period provisions of
Garn-St. Germain Depository Institutions Act had no applicability to Nevada or to transaction
which preceded effective date of Act; (2) federal law did not preempt Nevada law in
determining whether bank could accelerate balance due under original purchasers' deed of
trust; (3) absent evidence adduced by beneficiary indicating reduction in value of its security
stemming from installment land contract, due on sale clause, if enforced, constitutes
unreasonable restraint on alienability of property; and (4) beneficiary would not be permitted
to enforce due on sale clause.
Cal Hoover, Reno, for Appellants.
Beasley & Holden, Reno, for Respondents.
Generally, grant or denial of preliminary injunction is question addressed to discretion of district court so
that Supreme Court is usually reluctant to overturn determination of trial court in preliminary injunction
matter.
2. Mortgages.
Window period provisions of Garn-St. Germain Depository Institutions Act did not apply to Nevada,
which had no constitutional or statutory provision prohibiting exercise of due on sale clauses or judicial
decision to same effect from highest court of state at time of Act's enactment, or to transaction in which
original sale of property, subsequent transfer, and bank's attempt to accelerate original purchaser's debt,
preceded Act. Garn-St. Germain Depository Institutions Act of 1982, 1 et seq., 341, 341(b)(1), (2),
(c)(1), 12 U.S.C.A. 226 note, 1701j-3(b)(1), (2), (c)(1).
3. Statutes.
Statute operates retroactively only if Congress clearly manifests intent for statute to have such effect.
4. Mortgages.
Because Garn-St. Germain Depository Institutions Act contains no clear manifestation that it have
retroactive effect, but rather is totally silent on issue as to those states not subject to window period
provisions, Act would not be applied to transfers which occurred before effective date of Act. Garn-St.
Germain Depository Institutions Act of 1982, 1 et seq., 341, 341(b)(1), (2), (c)(1), 12 U.S.C.A. 226
note, 1701j-3, 1701j-3(b)(1), (2), (c)(1).
5. States.
Since original purchasers sought to transfer property prior to effective date of Garn-St. Germain
Depository Institutions Act federal law did not preempt state law in determining whether bank could
accelerate balance due under original purchasers' deed of trust Garn-St. Germain Depository Institutions
Act of 1982, 1 et seq., 12 U.S.C.A. 226 note.
6. Perpetuities.
Absent evidence adduced by beneficiary indicating reduction in value of its security stemming from
installment land contract, due on sale clause, if enforced, would constitute unreasonable restraint on
alienability of property.
7. Mortgages.
Beneficiary under deed of trust would not be permitted to enforce due on sale clause where beneficiary
did not show substantial impairment of security interest and where transfer occurred prior to effectiveness
of Garn-St. Germain Depository Institutions Act. Garn-St. Germain Depository Institutions Act of 1982,
1 et seq., 12 U.S.C.A. 226 note.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellants' request for a
temporary restraining order and a preliminary injunction. The facts are not in dispute.
In July of 1978, appellants Gerald and Patricia Boyes purchased certain real property. To
facilitate the purchase, the Boyeses executed a promissory note payable to Valley Bank in the
sum of $43,500 at an interest rate of 9.25% per annum. The note was secured by a deed of
trust, which designated First Commercial Title as the trustee and Valley Bank as the
beneficiary.
On August 20, 1981, the Boyeses executed a contract of sale in which they agreed to sell
the real property to appellant Phyllis Blake for the sum of $60,000 payable in installments at
the rate of 9.25% interest. Under the terms of this contract, Blake agreed to make all
payments through a collection escrow account at Washoe Title Guaranty Company. Washoe
Title, in turn, was to pay Valley Bank the monthly installments due under the Boyeses' note
and then pay the balance of the proceeds to the Boyeses. The Boyeses retained legal title to
the real property to secure Blakes's contractual obligation; Blake received contractual
rights, including the right to use and possess the property so long as payments were kept
current and other conditions were met.
contractual obligation; Blake received contractual rights, including the right to use and
possess the property so long as payments were kept current and other conditions were met.
Neither the Boyeses nor Blake obtained written consent from Valley Bank to proceed with the
sale.
Valley Bank, however, became aware of the contract of sale between the Boyeses and
Blake on October 5, 1981, by virtue of an insurance binder issued by State Farm Fire and
Casualty Company which covered the real property. Consequently, on October 21, 1981,
Valley Bank corresponded with the Boyeses and demanded that they pay in full their
promissory note in accordance with the due-on-sale clause contained in paragraph 17 of the
deed of trust.
1
Valley Bank accepted payments for the months of August through December,
1981, but refused further payments beginning January 8, 1982. On January 8, 1982, at the
direction of Valley Bank, First Commercial Title recorded a notice of default and election to
sell under the deed of trust.
Thereafter, on April 26, 1982, appellants filed a complaint seeking a declaration that
Valley Bank's exercise of the due-on-sale clause constituted an unreasonable restraint upon
their right to alienate the property. The complaint also requested that the district court issue a
temporary restraining order and a preliminary injunction restraining Valley Bank and First
Commercial Title from exercising the power of sale contained in the deed of trust.
The district court subsequently denied appellants' request for injunctive relief. The lower
court found that the due-on-sale clause did not constitute an unreasonable restraint on
alienation and was not per se inequitable or violative of public policy. Accordingly, the
district court refused to enjoin the foreclosure proceedings, and this appeal followed.
2
We
reverse.
[Headnote 1]
Generally, the grant or denial of a preliminary injunction is a question addressed to the
discretion of the district court. Number One Rent-A-Car v. Ramada Inns, 94 Nev. 779, 587
P.2d 1329 (1978). We are, therefore, usually reluctant to overturn the determination of the
trial court in a preliminary injunction matter. See Nevada Escrow Service, Inc. v. Crockett, 91
Nev. 201, 533 P.2d 471 {1975).
____________________

1
Paragraph 17 provides in pertinent part:
If all or any part of the property or an interest therein is sold or transferred by Borrower without Lender's
prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Deed of
Trust . . . Lender may, at Lender's option, declare all the sums secured by this Deed of Trust to be
immediately due and payable.
. . .

2
On October 12, 1982, this court issued a stay of the foreclosure proceedings pending this appeal.
471 (1975). The present case, however, is before us on the basis of stipulated facts, with
purely legal issues presented. Because we have resolved the legal issues in appellants' favor,
we have concluded that the preliminary injunction should issue.
A primary question presented in this appeal is whether, absent any showing of an
impairment of the lender's security interest, the enforcement of a due-on-sale clause
constitutes an unreasonable restraint on alienation where the trustor-vendor has executed an
installment land contract. In First Commercial Title v. Holmes, 92 Nev. 363, 550 P.2d 1271
(1976), this court upheld the enforcement of a due-on-sale clause where an outright sale
occurred by the trustor-vendor. There, however, we specifically reserved expressing an
opinion regarding the enforceability of such a clause where the trustor-vendor has entered
into an installment land contract. Id. at 365 n.1, 550 P.2d at 1272 n.1. It remains unnecessary
to confront this question in contexts other than the one before us.
During the pendency of this appeal, Congress passed the Garn-St. Germain Depository
Institutions Act, 12 U.S.C. 1701j-3 (1982). The Act became effective on October 15, 1982,
and applies to state savings and loan associations. Basically, the Garn Act provides that,
unless an exception applies, a state lender may enforce a contract containing a due-on-sale
clause with respect to a real property loan. Id. at 1701j-3(b)(1). Specifically, the Act
provides that the exercise by the lender of its option pursuant to such a clause shall be
exclusively governed by the terms of the loan contract, and all rights and remedies of the
lender and borrower shall be fixed and governed by the contract. Id. at 1701j-3(b)(2).
Valley Bank now contends that the Garn Act has preempted Nevada law in this area and
renders enforceable the due-on-sale clause contained in paragraph 17 of the deed of trust. The
original sale of the Boyeses, the subsequent transfer to Blake, and Valley Bank's attempt to
accelerate the Boyeses' debt, however, all occurred before the effective date of the Garn Act.
We therefore turn to consider what retroactive effect, if any, the Garn Act has on the present
transaction.
[Headnote 2]
We note that Congress in enacting the Garn Act included a window or grace period
exception for loans made or assumed after state action restricted the enforcement of
due-on-sale clauses. The window periods are specifically applicable only to those states
which had at the time of the Act's enactment a constitutional or statutory provision
prohibiting the exercise of due-on-sale clauses or a judicial decision to the same effect from
the highest court of the state. Id. at 1701j-3(c)(1). As noted above, Nevada had no such
constitutional or statutory provision or judicial decision. The window period provisions of the
Act, therefore, would have no applicability to Nevada or to appellants' transaction, which
preceded the Act.
therefore, would have no applicability to Nevada or to appellants' transaction, which preceded
the Act.
[Headnotes 3-5]
For those states, like Nevada, that do not come within the window period provisions, the
Act is silent as to whether there is to be any retroactive effect. A statute operates retroactively
only if Congress clearly manifests an intent for the statute to have such effect. See United
States v. Security Industrial Bank, 459 U.S. 70 (1982); Holloway v. Barrett, 87 Nev. 385,
390, 487 P.2d 501, 504 (1971); 2 Sands, Sutherland Statutory Construction 41.04, at 252
(4th ed. 1973). Because the Garn Act contains no such clear manifestation of intent, but rather
is totally silent on the issue as to those states not subject to the window period provisions,
we decline to apply the Act to those transfers which, as here, occurred before the effective
date of the Act. See Pioneer Federal Sav. and Loan Ass'n v. Reeder, 453 So.2d 126, 129
(Fla.Dist.Ct.App. 1984); North Community Bank v. Northwest Nat. Bank, 467 N.E.2d 1094,
1097 (Ill.App.Ct. 1984); Stenger v. Great Southern Sav. & Loan Ass'n, 677 S.W.2d 376, 381
n.7 (Mo.Ct.App. 1984); Home Sav. Bank v. Baer Properties, Ltd., 460 N.Y.S.2d 833
(N.Y.App.Div. 1983); Morris v. Woodside, 682 P.2d 905, 909 (Wash. 1984); see also Abrego
v. United Peo. Fed. Sav. & Loan Ass'n, 664 S.W.2d 858 (Ark. 1984); Viereck v. Peoples Sav.
and Loan Ass'n, 343 N.W.2d 30 (Minn. 1984). Consequently, since the Boyeses' sought to
transfer the property to Blake before the effective date of the Garn Act, we hold that federal
law does not preempt Nevada law in determining whether Valley Bank may accelerate the
balance due under the Boyeses' deed of trust.
[Headnote 6]
Having concluded that there is no federal preemption, we must next consider whether the
due-on-sale clause in the present case is enforceable. In First Commercial Title, 92 Nev. 363,
550 P.2d 1271, this court held that a due-on-sale clause is automatically enforceable in the
context of an outright sale. We rejected the view that places the burden of establishing
justification for enforcement of the clause upon the beneficiary. It is nevertheless
problematical whether this court would continue to adhere to its ruling in First Commercial
Title if the issue were to be decided anew. Arguably, the rationale for denying automatic
enforcement of a due-on-sale clause in the case of an outright sale is more compelling than
under an installment land contract. In an outright sale, the beneficiary's position may be
enhanced because the vendee becomes contractually liable to the beneficiary along with the
trustor-vendor. Moreover, the vendee under an outright sale may make a more substantial
down payment on the property than a conditional vendee, thereby increasing the vendee's
incentive not to default.
a conditional vendee, thereby increasing the vendee's incentive not to default. Under the terms
of an installment land contract, there may be no agreement by the conditional vendee to
assume and pay the existing indebtedness secured by the trust deed. Instead, the conditional
vendee may merely agree to pay the trustor-vendor the agreed price through a series of
installment payments which, when fully satisfied, will entitle the conditional vendee to a deed
from the trustor-vendor. The beneficiary may thus be placed in the position of having its
security possessed by a party who has made a small initial investment and who has no
position of liability vis-a-vis the beneficiary. On the other hand, of course, the trustor-vendor
remains liable, in a continuing position of responsibility to the beneficiary, with concern for
maintaining the value of the property; hence, the beneficiary commonly will not be prejudiced
by an installment land contract.
3

In any case, we are convinced that, absent evidence adduced by the beneficiary indicating a
reduction in the value of its security stemming from the installment land contract, the
due-on-sale clause, if enforced, constitutes an unreasonable restraint on the alienability of
property.
[Headnote 7]
The district court specifically found, and the parties do not dispute, that Valley Bank's
security is not in jeopardy of loss, waste or depreciation as a result of the contract of sale
executed by appellants in that all payments due and payable have been tendered by appellants
to Valley Bank, in a timely fashion. Valley Bank concedes that its sole reason for invoking
its rights under the due-on-sale clause was to protect itself from the contingency of rising
interest rates characteristic of the national economy since the purchase of the property by the
Boyeses in 1978. We therefore conclude that with regard to this pre-Garn Act transfer of real
property by means of an installment land sale contract, without a showing of substantial
impairment of Valley Bank's security interest, Valley Bank will not be permitted to enforce
the due-on-sale clause in its contract with appellants.
4
Accordingly, we reverse the district
court's order denying the request for a preliminary injunction.
____________________

3
We note that in Tucker v. Lassen Savings and Loan Association, 526 P.2d 1169 (Cal. 1974), the California
Supreme Court considered these factors and held that automatic enforcement of a due-on-sale clause is not
justified by the execution of an installment land contract.

4
In view of our determination that the due-on-sale clause, is unenforceable in this context, we need not reach
appellants' contention that the transaction in question is expressly excluded for the operation of the due-on-sale
clause as a creation of a lien or encumbrance subordinate to the deed of trust. See note 1, supra. It is arguable,
however, that the clause itself is ambiguous or uncertain in its application to an installment land sale contract.
Because the parties have not specifically addressed this question, we decline to reach the merits of this issue.
Our decision in the present case, however, is not
Accordingly, we reverse the district court's order denying the request for a preliminary
injunction. We remand this case for further proceedings consistent with this opinion,
including the issuance of a permanent injunction precluding Valley Bank from enforcing the
due-on-sale clause solely by reason of the transaction at issue here.
5

____________________
intended to foreclose the contention in future post-Garn Act cases that acceleration clauses like the one involved
here fail adequately to embrace installment land sale contracts.

5
The Honorable Cliff Young, Justice, did not participate in the consideration of this matter.
____________
101 Nev. 293, 293 (1985) SIIS v. Thomas
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the STATE OF NEVADA,
Appellant, v. GLENN M. THOMAS, Respondent.
No. 16049
June 21, 1985 701 P.2d 1012
Appeal from a district court order reversing the decision of an administrative appeals
officer. Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Police officer, who dislocated his shoulder during course and scope of his employment,
sought review of appeals officer's decision denying medical benefits for corrective surgery to
prevent future dislocations. The district court reversed, and Industrial Insurance System
appealed. The Supreme Court held that: (1) even though district court was correct in finding
that it was Industrial Insurance System's responsibility to provide court with record of
administrative proceeding in which police officer was denied medical benefits for corrective
surgery, refusal to reconsider its decision when record was produced was abuse of discretion,
and (2) district court erred in substituting its judgment for that of appeals officer.
Reversed.
[Rehearing denied February 20, 1986]
Denise M. Lightford, Las Vegas, for Appellant.
Greenman, Goldberg & Raby, Las Vegas, for Respondent.
When review of administrative decision is sought in district court pursuant to Administrative Procedure
Act [NRS 233B.010 et seq.], district court must affirm decision of administrative agency on questions of
fact if decision is supported by substantial evidence in record.
101 Nev. 293, 294 (1985) SIIS v. Thomas
2. Municipal Corporations.
Even though district court was correct in finding that it was Industrial Insurance System's responsibility to
provide court with record of administrative proceeding in which police officer was denied medical benefits
for corrective surgery, refusal to reconsider its decision when record was produced was abuse of discretion.
NRS 233B.140, subd. 2.
District court erred in substituting its judgment for that of appeals officer, which had denied police
officer's request for medical benefits for corrective surgery to shoulder, where evidence before appeals
officer supported his findings that police officer had suffered multiple dislocations of shoulder prior to
work-related injury and that he had recovered from work-related injury and returned to his preinjury status.
NRS 233B.140, subd. 5.
District court abused its discretion by basing its order, which reversed appeal officer's decision denying
police officer's request for medical benefits for corrective surgery, on a report that was not before it. NRS
233B.140, subd. 5.
Appeals officer's finding that doctor's opinion, that it was possible that police officer's work-related injury
was sufficient to result in need for surgical repair of dislocating right shoulder, was speculative was not
clearly erroneous and supported denial of medical benefits for corrective surgery, where doctor's letter was
written three and one-half years after injury occurred. NRS 233B.140, subd. 5.
OPINION
Per Curiam:
The State Industrial System (SIIS) appeals from an order of the district court which
reversed the decision of an appeals officer denying medical benefits to respondent Thomas.
For the reasons stated below, we reverse.
Thomas dislocated his shoulder during the course and scope of his employment as a police
officer on September 6, 1980. Medical treatment was rendered at the Southern Nevada
Memorial Hospital in Las Vegas. Thomas submitted a claim to the SIIS, and benefits were
paid on the claim.
On September 15, 1980, Thomas' treating physician, Dr. Donald MacKay, recommended
corrective surgery to prevent future dislocations. The SIIS denied approval for the surgical
repair of the shoulder because Thomas had a history of prior dislocations. Thomas appealed
to the Department of Administration, Hearing Division. The hearing officer affirmed the SIIS
determination. Thomas appealed. Following a hearing on February 27, 1984, an appeals
officer affirmed the decision of the hearing officer on the grounds that the condition was
pre-existing and that the evidence that surgery was required as a result of the September 6,
1980, injury was speculative. In the opinion of the appeals officer, the evidence showed
that Thomas had recovered from the injury and had been returned to his pre-injury
condition, and the need for preventative surgery was not the result of the September 6,
19S0, injury.
101 Nev. 293, 295 (1985) SIIS v. Thomas
appeals officer, the evidence showed that Thomas had recovered from the injury and had been
returned to his pre-injury condition, and the need for preventative surgery was not the result
of the September 6, 1980, injury.
Thomas petitioned the district court for judicial review. The record of the administrative
proceedings was not forwarded to the district court. The district court found that the SIIS was
required by NRS 233B.140(2) to transmit a copy of the record of the administrative
proceedings to the district court.
1
Because SIIS had not caused the record to be transmitted,
the district court elected to treat the assertions in Thomas' brief as true. Accordingly, the
district court concluded the report of Dr. MacKay was uncontroverted and failure of the
appeals officer to accept it was arbitrary. The district court therefore reversed the decision of
the appeals officer.
The SIIS made a motion for reconsideration. Attached to the motion was a copy of the
record from the administrative proceedings. The district court refused to reconsider, stating
that its decision was based on the merits of the appeal in that the denial of surgery was
arbitrary. The SIIS has appealed, raising two assignments of error. First, the SIIS contends the
district court abused its discretion by deciding the case without the record. Second, the SIIS
contends the district court erred by substituting its judgment for that of the appeals officer.
[Headnote 1]
When review of an administrative decision is sought in the district court pursuant to the
Nevada Administrative Procedure Act, the review is conducted by the court without a jury
and [is] confined to the record. NRS 233B.140(4). Further, the court must affirm the
decision of the administrative agency on questions of fact if the decision is supported by
substantial evidence in the record. See State of Nev., Nev. Emp. Sec. Dep't v. Weber, 100
Nev. 121, 676 P.2d 1318 (1984). In the absence of a record, a substantial evidence review
is difficult, at best.
[Headnote 2]
Although the district court was correct in finding that it was the SIIS' responsibility to
provide the record, the election of the district court to treat the allegations of Thomas' brief as
correct was inappropriate.2 Under NRS 233B.140{2), the district court "may require or
permit subsequent corrections or additions to the record."
____________________

1
NRS 233B.140(2) (emphasis added) provides:
Within 30 days after the service of the petition, or within further time allowed by the court, the
agency shall transmit to the reviewing court the original or a certified copy of the entire record of the
proceeding under review. By stipulation of all parties to the review proceedings, the record may be
shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the
additional costs. The court may require or permit subsequent corrections or additions to the record.
101 Nev. 293, 296 (1985) SIIS v. Thomas
was inappropriate.
2
Under NRS 233B.140(2), the district court may require or permit
subsequent corrections or additions to the record. In light of the limitations on the review
performed by the district court, this would have been a preferable course of action. Further,
the district court's refusal to reconsider its decision when the record was produced was an
abuse of discretion. A review limited to the record cannot be properly performed in the
absence of the record.
[Headnote 3]
The SIIS contends that the district court improperly substituted its judgment for that of the
appeals officer. See NRS 233B.140(5).
3
We agree. A review of the evidence before the
appeals officer reveals that his decision was not arbitrary.
[Headnote 4]
The appeals officer found as facts (1) that Thomas had suffered multiple dislocations of
his right shoulder prior to his September 6, 1980, injury, and (2) that Thomas had recovered
from his September 6, 1980, injury and had been returned to his pre-injury status. Dr.
MacKay's report supports both of these findings.
4

Although Thomas insisted in his brief that he had suffered only two previous dislocations,
Dr. MacKay's report states: He does have a history of recurrent dislocation of the shoulder.
The first dislocation occurred playing football and he has had multiple dislocations since that
time. He states that he has had three dislocations in the past six months."
____________________

2
The SIIS has claimed throughout that the petitioning party has the responsibility to transmit the record.
However, NRS 233B.140(2) clearly places the burden of transmitting the record on the agency. SIIS'
arguments that it is not the agency referred to are not persuasive.

3
NRS 233B.140(5) (emphasis added) provides:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact. The court may affirm the decision of the agency or remand the case for further
proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences, conclusions or decisions are:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
or
(f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.

4
Although portions of Dr. MacKay's report were contained in the briefs, the entire report was not before the
district court when it entered its judgment. Clearly, the district court abused its discretion by basing its order on a
report that was not before it.
101 Nev. 293, 297 (1985) SIIS v. Thomas
dislocations in the past six months. Clearly, the appeals officer's finding of multiple prior
dislocations was supported by substantial evidence.
Dr. MacKay also reported: This patient has recovered from his latest recurrent dislocation
of the right shoulder. Further, the record included a report of Dr. Harris W. Knudson who
examined the x-rays and concluded that Thomas' shoulder was normal. Dr. Cedarblade, the
chief medical advisor of the medical department of the SIIS, reviewed the records and the
report of Dr. MacKay and concluded that the condition of Thomas' shoulder was the result of
a football injury some eight years earlier, and that Thomas had recovered from his September
6, 1980, injury. It is apparent that the record supported the appeals officer's finding that
Thomas had been returned to his pre-injury status.
[Headnote 5]
Thomas relies heavily on the following statement made by Dr. MacKay in a letter dated
February 1, 1984: It is my opinion that it is possible that this particular injury was sufficient
to result in the need for surgical repair of dislocating right shoulder. The finding of the
appeals officer that this opinion was speculative, however, was not clearly erroneous,
especially in light of the fact that the letter was written three and one-half years after the
injury occurred. Although another construction of the statement is possible, the conclusion of
the appeals officer is rational and supported by substantial evidence. Therefore, the
conclusion of the district court that the appeals officer acted arbitrarily was incorrect. We
conclude that the district court substituted its judgment for the judgment of the administrative
agency. This was error. NRS 233B.140(5).
For the reasons stated above, the order of the district court is reversed.
____________
101 Nev. 297, 297 (1985) Harrison v. Rodriguez
CYNTHIA HARRISON, Appellant, v. PAULETA
ORTIZ RODRIGUEZ, Respondent.
No. 15850
June 21, 1985 701 P.2d 1015
County; Donald M. Mosley, Judge.
Bicyclist brought action against motorist for injuries sustained when bicyclist was struck
by car driven by motorist. The district court entered summary judgment in favor of motorist
on basis of statute of limitations, and bicyclist appealed. The Supreme Court, Springer, J.,
held that: {1) evidence of intent with which motorist's insurer made statements to effect
that it would pay all medical bills created genuine issue of material fact, and {2) summary
judgment on basis of statute of limitations was not proper where issues of fact on
estoppel and fraud remained.
Court, Springer, J., held that: (1) evidence of intent with which motorist's insurer made
statements to effect that it would pay all medical bills created genuine issue of material fact,
and (2) summary judgment on basis of statute of limitations was not proper where issues of
fact on estoppel and fraud remained.
Reversed.
Johns and Johns, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy and Jemison, Las Vegas, for Respondent.
1. Judgment.
In bicyclist's action against motorist for personal injuries sustained when bicyclist was struck by car
driven by motorist, intent with which motorist's insurer made statements to bicyclist's father to effect that it
would pay all medical bills created genuine issue of material fact, precluding summary judgment in favor
of motorist on basis of statute of limitations.
2. Limitation of Actions.
Plaintiff was not precluded from raising circumstances which might give rise to estoppel even though she
had not pled such circumstances and statute of limitations had run, where defendant's answer had set up
statute of limitations as defense and no responsive pleading was required or permitted in answer to that
defense. NRCP 8(d).
3. Judgment.
Summary judgment on basis of statute of limitations was not proper where issues of fact on estoppel and
fraud remained.
OPINION
By the Court, Springer, C. J.:
This appeal is taken from an order granting summary judgment in favor of respondent,
Pauleta Ortiz Rodriguez, in an action against her for personal injuries. For the reasons stated
below, we conclude that summary judgment was inappropriately granted.
Appellant, Cynthia Harrison, and her brother, Brian Harrison, were struck by a car driven
by Pauleta Rodriguez, while riding their bicycles through an intersection. Cynthia's father
contacted Rodriguez's insurance carrier, Farmers Insurance Company, and Farmers agreed to
pay Cynthia's and Brian's medical bills. Farmers paid all ongoing medical bills from the date
of the accident, September 5, 1976, until approximately August, 1981. Farmers then informed
Harrison that it had been paying the medical bills under the no-fault provision of the policy
and that Cynthia had depleted the $10,000 maximum coverage. Moreover, the statute of
limitations on actions for personal injury had run as to Cynthia.
personal injury had run as to Cynthia. The statute had begun to run on her eighteenth
birthday, July 5, 1979, and had run out on July 5, 1981.
1

Cynthia filed suit alleging negligence against Rodriguez on February 8, 1983. Rodriguez
moved for summary judgment on the ground that the statute of limitations had run. The
motion was granted.
[Headnote 1]
Ronald Harrison, Cynthia's father, alleged in his deposition that agents of Farmers made
certain statements to him, to the effect that Farmers would pay all medical bills. We assume
these statements were in fact made, since we must accept as true all evidence favorable to
the party against whom the judgment was rendered. Stone v. Mission Bay Mortgage Co., 99
Nev. 802, 804, 672 P.2d 629, 630. Additionally, in evaluating the propriety of a summary
judgment, the evidence will be reviewed in the light most favorable to the party against whom
summary judgment was rendered. Hampton v. Washoe County, 99 Nev. 819, 822, 672 P.2d
640, 641 (1983). The intent with which the statements were made is an issue of fact for the
jury to resolve. If the jury were to find that the statements were made with the intent to
mislead Harrison as to the total amount Farmers would pay, or to cause him to refrain from
filing suit, such an intent could give rise to an estoppel to assert the statute of limitations as a
defense. Therefore, it cannot be said that there is no genuine issue of material fact and that
Rodriguez is entitled to judgment as a matter of law.
[Headnote 2]
Rodriguez contends that since Harrison's complaint showed on its face that the statute of
limitations had run, Harrison is precluded from raising circumstances which might give rise
to an estoppel, since such circumstances were not pleaded. We do not agree.
[Headnote 3]
NRCP 8(d) states, in relevant part: [A]verments in a pleading to which no responsive
pleading is required or permitted shall be taken as denied or avoided. Rodriguez's answer
sets up the statute of limitations as a defense. No responsive pleading is required or permitted
in answer to this defense; therefore, it is taken as denied or avoided. Even though the running
of the statutory period stands admitted in the summary judgment proceedings, issues of fact
on estoppel and perhaps fraud remain.
____________________

1
The statute had been tolled pursuant to NRS 11.250(1) during Cynthia's minority. At the time Cynthia
discovered the $10,000 maximum on medical payments, the statute had not run as to Brian. Brian
subsequently reached a settlement with Farmers and is not a party in this action.
ceedings, issues of fact on estoppel and perhaps fraud remain. Summary judgment is not
proper under such a set of circumstances; consequently, the case is reversed and remanded.
Mowbray, Gunderson, Steffen and Young, JJ., concur.
____________
101 Nev. 300, 300 (1985) Lewis v. Benson
RALPH LEWIS and RANDY TITUS, Appellants, v. RAY
BENSON aka RAY BENYOCK, Respondent.
No. 16131
June 21, 1985 701 P.2d 751
Appeal from summary judgment and dismissal of plaintiff's complaint; Eighth Judicial
District Court, Clark County; Addeliar D. Guy, Judge.
Police officers brought action alleging defamation and intentional infliction of emotional
distress against citizen who filed complaint with police department charging misconduct on
part of officers. The district court granted summary judgment in favor of citizen, and officers
appealed. The Supreme Court held that citizen was absolutely privileged from civil
prosecution for defamation or intentional infliction of emotional distress.
Affirmed.
Fadgen, Lovell, Bilbray, Potter and Gewerter, Las Vegas, for Appellants.
Harding and Dawson, George T. Bochanis, Las Vegas, for Respondent.
Damages; Libel and Slander.
Citizen who filed complaint with police department alleging misconduct on part of officers was
absolutely privileged from civil prosecution for defamation or intentional infliction of emotional distress.
OPINION
Per Curiam:
The present defamation and intentional infliction of emotional distress action grew out of a
complaint filed with the Las Vegas Metropolitan Police Department by the respondent, Ray
Benson. The complaint alleged misconduct on behalf of the appellants, Officers Ralph Lewis
and Randy Titus. The Internal Affairs Bureau investigated the incident and determined the
complaint to be "unfounded."
101 Nev. 300, 301 (1985) Lewis v. Benson
Bureau investigated the incident and determined the complaint to be unfounded.
Subsequently, the officers brought this action against the respondent.
The district court found the investigation performed by the Internal Affairs Bureau to be a
quasi-judicial proceeding. Thus, Benson was accorded immunity from civil liability for the
statements made in his complaint.
A review of the record reveals little evidence concerning the procedure followed by the
Internal Affairs Bureau during the investigation. Without determining whether sufficient
evidence supported the district court's finding that the investigation was a quasi-judicial
proceeding, we hold that the public policy of this state demands that Benson be absolutely
privileged from civil prosecution for defamation or intentional infliction of emotional
distress.
In certain situations it is in the public interest that a person speak freely. Where this is so,
the law is willing to assume the risk that from time to time the privilege will be abused. This
case represents just such a situation.
It has been held that an absolute privilege extends to those occasions where a citizen files a
complaint with an internal affairs bureau against a police officer. Campo v. Rega, 79 A.2d
626, 433 N.Y.S.2d 630 (1980). The extension of the privilege promotes the public's interest
by allowing civilian complaints against public officials to be aired in the proper forum
without fear of civil liability. Id. Absent the extension of such privilege, the protection from
civil liability afforded the complainant hinges on an ad hoc determination that the particular
proceeding will be deemed quasi-judicial in nature. Such an uncertainty could result in
deterring citizens from filing legitimate complaints. Thus, the application of an absolute
privilege to civilians filing complaints with an internal affairs bureau sufficiently promotes
the interests of the public to warrant the availability of an absolute privilege.
Accordingly, the judgment is affirmed.
____________
101 Nev. 302, 302 (1985) Rees v. Roderiques
ELIZABETH L. REES, M.D., Appellant, v. ANGELINE
L. RODERIQUES, Respondent.
No. 15355
June 26, 1985 701 P.2d 1017
Appeal from order granting a new trial, Second Judicial District Court, Washoe County;
Peter I. Breen, Judge.
Patient brought action against doctor who was general practitioner, claiming that doctor
was negligent in her medical treatment of patient and, as result, lower portion of patient's
right leg was amputated. Jury returned verdict in favor of doctor. The district court granted
patient's motion for new trial on basis that jury had misapplied and/or misunderstood
instructions of law dealing with standard of care and the proximate cause, but denied motion
for judgment notwithstanding the verdict. Doctor appealed. The Supreme Court held that: (1)
testimony of patient's expert medical witnesses, who were vascular surgeons, established
appropriate standard of care for any physician, whether specialist or general practitioner,
when faced with 75 year old woman in patient's condition, and (2) if jury had correctly
applied law, it would have been impossible for them to reach verdict in favor of doctor,
where only two expert witnesses testified that doctor did not comply with standard of care
required of general practitioner, and that leg could have been salvaged if patient had received
proper care on her visit to doctor.
Affirmed.
Eugene J. Wait, Jr., and Don Springmeyer, Reno, for Appellant.
Echeverria, Osborne & Jenkins, and Steve Wenzel, Reno, for Respondent.
1. Physicians and Surgeons.
Negligence may exist in the diagnosis, as well as the treatment, of patients; degree of care required of
physician is same in either case.
Standard of care to be applied in medical malpractice case is to be established by testimony of expert
witnesses with knowledge of the prevailing standards.
3. Evidence.
There is no requirement that expert medical witness be from same specialty as defendant to testify to
prevailing standards in medical malpractice case; issue is simply one of witness' actual knowledge.
4. Evidence.
Testimony of patient's expert medical witnesses, who were vascular surgeons, established appropriate
standard of care for any physician, whether specialist or general practitioner, when faced
with 75 year old woman in patient's condition, including severe pain, difficulty
walking, right foot dragging and turning in and lower right leg swollen; their
testimony described proper extent and nature of examination, referral, and treatment
which should have occurred on date of patient's visit, and both witnesses testified
that doctor's advice and treatment did not meet standard of care of general
practitioner.
whether specialist or general practitioner, when faced with 75 year old woman in patient's condition,
including severe pain, difficulty walking, right foot dragging and turning in and lower right leg swollen;
their testimony described proper extent and nature of examination, referral, and treatment which should
have occurred on date of patient's visit, and both witnesses testified that doctor's advice and treatment did
not meet standard of care of general practitioner.
5. Evidence; New Trial.
If jury had correctly applied law in medical malpractice action, it would have been impossible for them to
reach verdict in favor of doctor who was general practitioner, where only two expert witnesses, who were
vascular surgeons, testified that doctor did not comply with standard of care required of general
practitioner and that leg could have been salvaged if patient had received proper care on her visit to doctor,
and doctor presented no evidence to contradict testimony of experts regarding appropriate standard of care,
nor did she give opinion as to whether her conduct violated standard of care, even though she testified that
her diagnosis was based on her knowledge of the history and physical appearance of patient's leg; thus, trial
court did not err in ordering new trial based upon jury's manifest disregard of instructions. NRCP
59(a)(5).
OPINION
Per Curiam:
This is an appeal from an order granting a new trial in a medical malpractice suit.
Respondent Angeline Roderiques brought this action against appellant Dr. Rees, claiming
that Dr. Rees was negligent in her medical treatment of Roderiques and, as a result, the lower
portion of Roderiques' right leg was amputated. A jury trial was thereafter conducted. The
testimony at trial established that on the morning of February 21, 1982, Roderiques suffered
an attack of pain in her right leg. The leg ached continuously overnight. Roderiques went to
Dr. Rees' office on the afternoon of February 22, 1982. When Roderiques arrived at the
office, she was in severe pain and had difficulty walking. As she entered the office, the
medical assistant observed that her walk was very exaggerated, her right foot dragged and
turned in, and her lower right leg was swollen. Dr. Rees examined Roderiques and found
many enlarged veins and some swelling in the right leg and foot. Dr. Rees also found
pulsations in the foot. The foot was not discolored, but it was cold. Dr. Rees concluded that
Roderiques was suffering from varicose veins, and she instructed Roderiques to wear an
elastic stocking to support the veins and reduce the swelling. Dr. Rees did not make a
definitive diagnosis that day, but scheduled another appointment for Roderiques two days
later.
On March 5, 1982, Roderiques again went to Dr. Rees' office and was seen by the medical
assistant, who observed that Roderiques' right foot was black with red streaks. The assistant
immediately referred Roderiques to another doctor, and she was sent to St.
St. Mary's Hospital in Reno. The physical examination indicated that Roderiques was
suffering from early gangrene in the right foot. The artery which delivered blood into the right
leg was blocked, and surgery was performed to remove the clot in the leg. Roderiques' leg
could not be saved and, subsequently, the right leg was amputated below the knee.
Upon the conclusion of the trial, the jury returned a verdict in favor of Dr. Rees.
Roderiques subsequently moved for a judgment notwithstanding the verdict or, in the
alternative, for a new trial. The district court denied the motion for a judgment
notwithstanding the verdict, but granted a new trial on the basis that the jury had misapplied
and/or misunderstood the instructions of law dealing with the standard of care and proximate
cause. Dr. Rees' appeal followed.
A new trial may be granted if there has been a [m]anifest disregard by the jury of the
instruction of the court. NRCP 59(a)(5). In Weaver Brothers, Ltd. v. Misskelley, 98 Nev.
232, 645 P.2d 438 (1982), we stated that in determining the propriety of the granting of a
new trial under NRCP 59(a)(5), the question is whether we are able to declare that, had the
jurors properly applied the instruction of the court, it would have been impossible for them to
reach the verdict which they reached. Id. at 234, 645 P.2d at 439; see also Groomes v. Fox,
96 Nev. 457, 611 P.2d 208 (1980); Eikelberger v. Tolotti, 94 Nev. 58, 574 P.2d 277 (1978).
Dr. Rees contends that it was not impossible for the jury to reach a verdict in her favor and
thus the district court erroneously granted Roderiques' motion for new trial. Dr. Rees first
argues that Roderiques failed to demonstrate that Dr. Rees' diagnosis and treatment on
February 22, 1982, breached the standard of care applicable to a general practitioner.
Specifically, Dr. Rees contends that Roderiques' expert medical witnesses, both vascular
surgeons, did not establish the standard of care for a general practitioner. We disagree.
[Headnotes 1-3]
It is well-settled in Nevada that negligence may exist in the diagnosis, as well as the
treatment, of patients; the degree of care required of a physician is the same in either case.
Corn v. French, 71 Nev. 280, 289 P.2d 173 (1955). The standard of care to be applied in a
medical malpractice case is to be established by the testimony of expert witnesses with
knowledge of the prevailing standards. See Corn v. French, supra. There is no requirement
that the expert medical witness be from the same specialty as the defendant; the issue is
simply one of the witness' actual knowledge. See e.g., Hersh v. Hendley, 626 S.W.2d 151
(Tex. Civ.App. 1981).
[Headnote 4]
The testimony of Roderiques' expert medical witnesses established the appropriate
standard of care for any physician, whether a specialist or a general practitioner, when faced
with a seventy-five year old woman in Roderiques' condition. Their testimony described the
proper extent and nature of the examination, referral and treatment which should have
occurred on February 22, 1982. They both testified that Dr. Rees' advice and treatment on
February 22, 1982, did not meet with the standard of care of a general practitioner and they
agreed that Dr. Rees' one action, prescribing an elastic stocking, was exactly the wrong
treatment.
[Headnote 5]
Dr. Rees testified that her diagnosis was based on her knowledge of the history and
physical appearance of Roderiques' leg, but she presented no evidence to contradict the
testimony of the other experts regarding the appropriate standard of care, nor did she give an
opinion as to whether her conduct violated the standard of care.
Dr. Rees also contends that her conduct on February 22, 1982, was not the proximate
cause of Roderiques' eventual loss of her lower leg. Based on one of the expert witness'
testimony that the chances of muscle damage increased dramatically six to ten hours after
Roderiques first felt the pain in her leg, Dr. Rees claims that by the time she saw Roderiques
more than 24 hours later, the loss of the leg was inevitable. This contention is not supported
by the evidence. The expert testimony established that if Roderiques had received proper
treatment or a referral to a specialist on February 22, 1982, her leg would not have required
amputation.
The only two expert witnesses at trial testified that Dr. Rees did not comply with the
standard of care required of a general practitioner, and that the leg could have been salvaged
if plaintiff had received proper care on February 22, 1982. We therefore conclude that if the
jury had correctly applied the law, it would have been impossible for them to reach a verdict
in favor of Dr. Rees. Accordingly, the trial court did not err in ordering a new trial based upon
the jury's manifest disregard of the instructions.
The order granting a new trial is affirmed.
Springer, C. J., Mowbray, Gunderson, Steffen, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Governor designated Senior Justice David Zenoff to participate in this case. Nev. Const. art. 6, 4.
____________
101 Nev. 306, 306 (1985) Fullerton v. Rogers
NANCY FULLERTON, Appellant, v. ROSE MARIE ROGERS, Executrix of the
Estate of JAMES M. DIMITROFF, Respondent.
No. 16035
July 11, 1985 701 P.2d 1020
Appeal from an order of the district court granting a petition for final distribution of an
estate; Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Individual objected to probate of will, alleging that will admitted to probate was procured
by fraud. The district court dismissed the will contest. On appeal, the Supreme Court held
that the issues presented should have been litigated notwithstanding previous expiration of
three-month statutory period where it was contended that will admitted to probate was
procured by extrinsic fraud of executrix.
Bill C. Hammer, Las Vegas, for Appellant.
Moran, Kennedy & Weinstock, Las Vegas, for Respondent.
1. Wills.
Extrinsic fraud may be used to toll time limits imposed by NRS 137.080, imposing three-month
limitation after admission of will to probate within which will contest must be brought.
2. Wills.
Issues presented by individual who sought to contest will should have been litigated notwithstanding
expiration of statutory three-month period where individual contended that will admitted to probate was
procured by fraud and that another will, different from one probated, was true last will and testament of
decedent. NRS 137.080.
OPINION
Per Curiam:
Appellant Fullerton appeals from an order dismissing a will contest after probate. The
dismissal was based on the trial court's conclusion that Fullerton had not made a timely
response under NRS 137.080 and had not properly supported her allegations of fraud.
Fullerton concedes that under NRS 137.080 parties contesting a will must do so within three
months after the admission of the will to probate.
1
She asserts, however, that extrinsic fraud
on the part of the executrix provides a legal reason why she should be immune from the
three-month limitation in the statute.
____________________

1
When a will has been admitted to probate any interested person other than a party to a contest before
probate and other than a person who had
101 Nev. 306, 307 (1985) Fullerton v. Rogers
on the part of the executrix provides a legal reason why she should be immune from the
three-month limitation in the statute. We agree.
[Headnote 1]
Extrinsic fraud is used to toll other statutory time limits. Occhiuto v. Occhiuto, 97 Nev.
143, 625 P.2d 568 (1981) (extrinsic fraud used for relief from NRCP 60 (b)); see also Savage
v. Salzmann, 88 Nev. 193, 495 P.2d 367 (1972). There is no reason why extrinsic fraud
cannot be used to toll the time limits imposed by NRS 137.080.
Fullerton first objected on March 15, 1984, to probate of the will, approximately two
months after the statutory three-month period expired. At that time she alleged, through
affidavit of counsel, that she was prevented from previously contesting the will due to
extrinsic fraud of the executrix. The court was unwilling to entertain the affidavit since it was
from Fullerton's attorney and not from Fullerton herself. It took Fullerton four months to
compile the requisite documents to prove the invalidity of the will. When she appeared in
court in July, the court should have entertained her petition.
[Headnote 2]
It appears from the record that Fullerton contends that the will admitted to probate was
procured by fraud and that another will, different from the one probated, may be the true last
will and testament of the decedent. Under the circumstances of this case we conclude that the
issues presented should be litigated and that the district court erred in dismissing the contest
for the grounds and in the manner appearing in the record.
This case is reversed and remanded for a hearing on the merits of the will contest.
____________________
actual notice of such previous contest in time to have joined therein, may, at any time within 3 months
after admission of such will to probate, contest the same or the validity of the will. For that purpose he
must file in the court in which the will was proved a petition in writing, duly verified, containing his
allegations against the validity of the will or against the sufficiency of the proof, and praying that the
probate be revoked.
____________
101 Nev. 308, 308 (1985) Oliver v. State
EARNEST LEE OLIVER, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 15487
July 31, 1985 703 P.2d 869
Appeal from judgment of conviction of larceny from the person, Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Defendant was convicted in the district court of larceny from the person, and he appealed.
The Supreme Court, Gunderson, J., held that activities of police officers, including decoy
portraying himself as completely susceptible and vulnerable, not responding when defendant
attempted to wake him, and decoy displaying ten-dollar bill protruding from his pocket in
manner calculated to tempt any needy person in area, accomplished impermissible
entrapment.
Reversed.
Morgan D. Harris, Public Defender, and Craig D. Creel, Deputy Public Defender, Clark
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, James
Criminal Law.
Activities of police officers, including portrayal of decoy as completely susceptible and vulnerable, not
responding when defendant attempted to wake him, and display of ten-dollar bill protruding from decoy's
pocket in manner calculated to tempt any needy person, accomplished impermissible entrapment; thus,
larceny conviction had to be reversed.
OPINION
On May 7, 1983, Las Vegas policemen arrested appellant Oliver and charged him with
larceny from the person, in violation of NRS 205.270. At trial, prosecution witnesses
established the following facts.
On the night of Oliver's arrest, three policemen undertook to conduct a decoy operation
near the intersection of Main and Ogden in Las Vegas. That corner is in a downtown area
frequented by substantial numbers of persons commonly characterized as street people,
vagrants, and derelicts. It appears Oliver, a black man, is one of these.
Disguised as a vagrant in an old Marine Corps jacket, the decoy officer slumped against a
palm tree, pretending to be intoxicated and asleep. His associates concealed themselves
nearby. The decoy prominently displayed a ten-dollar bill, positioning it to protrude from the
left breast pocket of his jacket. This was done, the decoy later testified, to provide an
opportunity for a dishonest person to prove himself.
Oliver, who had the misfortune to come walking down the street, saw the decoy and
evidently felt moved to assist him. Shaking and nudging the decoy with his foot, Oliver
attempted to warn the decoy that the police would arrest him if he did not move on. The
decoy did not respond, and Oliver stepped away. Up to this point, Oliver had shown no
predisposition whatever to commit any criminal act.
Then, Oliver saw the ten-dollar bill protruding from the decoy's pocket. He reached down
and took it. Thanks, home boy, he said. Thereupon, he was arrested by the decoy and the
two other officers. Following the trial, a jury convicted Oliver of larceny from the person, and
he has been sentenced to ten years imprisonment. This appeal followed.
Oliver's counsel contends he was entrapped into committing the offense in question. We
agree. As stated in Froggatt v. State, 86 Nev. 267, 467 P.2d 1011 (1970), government agents
or officers may not employ extraordinary temptations or inducements. Id. at 270, 467 P.2d at
1013. They may not manufacture crime. We have repeatedly endorsed the following concept:
Entrapment is the seduction or improper inducement to commit a crime for the
purpose of instituting a criminal prosecution, but if a person in good faith and for the
purpose of detecting or discovering a crime or offense, furnishes the opportunity for the
commission thereof by one who has the requisite criminal intent, it is not entrapment.
Moore v. State, 93 Nev. 645, 646, 572 P.2d 216, 217 (1977); see also In re Wright, 68 Nev.
324, 329, 232 P.2d 398, 400 (1951). Thus, because we discern several facts which we believe
combined to create an extraordinary temptation, which was inappropriate to apprehending
merely those bent on criminal activity, we feel constrained to reverse Oliver's conviction.
We note, first of all, that the decoy portrayed himself as completely susceptible and
vulnerable. He did not respond when Oliver attempted to wake him, urging him to avoid
arrest by moving to another location. Moreover, the decoy displayed his ten-dollar bill in a
manner calculated to tempt any needy person in the area, whether immediately disposed to
crime or not. In the case of Oliver, the police succeeded in tempting a man who apparently
did not approach the decoy with larceny in mind, but rather to help him.
apparently did not approach the decoy with larceny in mind, but rather to help him. Even after
being lured into petty theft by the decoy's open display of currency and apparent helplessness,
Oliver did not go on to search the decoy's pockets or to remove his wallet.
On this record, then, we think the activities of the officers, however well intentioned,
accomplished an impermissible entrapment. See Moore v. State, 93 Nev. at 646, 572 P.2d at
217; see also State v. Holliday, 431 So.2d 309 (Fla.Dist.Ct.App.), petition for rev. granted,
No. 63,832 (Fla. 1983). The Florida court's comments in the Holliday case, id., are
noteworthy:
There is no evidence of any prior conduct of the defendant that would have shown
predisposition. There is no evidence that he was engaging in criminal activity before he
took the money from the decoy. [Citations omitted.] No ready acquiescence is shown;
on the contrary, the defendant's acts . . . demonstrate only that he succumbed to
temptation. The record, as such, reveals that the decoy did not detect or discover, nor
could he reasonably be intended to discover, the type of crime the police were
attempting to prevent by the use of the decoy, i.e., robberies and purse snatchings.
Indeed, lifting some money protruding from the pocket of a seemingly unconscious,
drunken bum is just not sufficiently similar to either robbery or purse snatchings. Upon
these facts, the decoy simply provided the opportunity to commit a crime to any who
succumbed to the lure of the bait.
431 So.2d at 310-311.
Similarly, in the instant case, through the state's own witnesses at trial, Oliver's counsel
established a prima facie showing that Oliver's criminal act was instigated by the state. There
was no countervailing evidence whatever. See Hill v. State, 95 Nev. 327, 594 P.2d 699
(1979); Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961). Accordingly, on this record, we
must conclude as a matter of law that Oliver was entrapped, and we reverse his conviction.
1
Springer, C. J., and Mowbray, Steffen and Young, JJ., concur.
____________________

1
We therefore need not consider an alternative contention of Oliver's counsel, i.e. that Oliver's ten-year
prison sentence is cruel and unusual and disproportionate to his crime. We do, however, wish to tender some
data on the arguably disproportionate cost to the public of prosecutions like the instant one.
According to figures compiled by the Legislative Counsel Bureau, the average operating cost of maintaining
inmates in the Nevada State Prison was the sum of $13,753 per inmate during fiscal year 1983-84. This
operating cost takes no account of the initial fixed cost of constructing the facilities in which inmates are housed.
Thus, the operating costs of punishing a citizen for a crime such as Oliver was enticed to commit, through
10 years imprisonment, would total $137,530. Therefore,taking into account fixed
Springer, C. J., and Mowbray, Steffen and Young, JJ., concur.
____________________
costs and expenses related to prosecution and defense, it could easily cost the public as much as $200,000 when
a citizen like Oliver is afforded the opportunity to prove his dishonesty. (The expenditure could be less if the
citizen were to be housed in a minimum security facility or work release program.)
____________
101 Nev. 311, 311 (1985) Phillips v. Lynch
CHARLES F. PHILLIPS and EXECUTIVE REALTY, INC., Appellants and
Cross-Respondents, v. FRANK W. LYNCH and JACQUELINE A. LYNCH, Respondents
and Cross-Appellants.
No. 15533
August 19, 1985 704 P.2d 1083
Appeal from a jury verdict of $17,500 in compensatory damages and $125,000 in punitive
damages in a contract and fraud action, Second Judicial District Court, Washoe County; Roy
L. Torvinen, Judge.
Vendors brought suit against broker and brokerage for breach of contract and fraudulent
violation of fiduciary duties. The district court entered judgment for vendors on a jury verdict
of $17,500 in compensatory damages and $125,000 in punitive damages, and broker and
brokerage appealed. The Supreme Court held that: (1) where broker violated agreement with
vendors by withholding from them information concerning an offer of $150,000 at same time
lying to vendors and coercing them to sell home to brokerage for $125,000 less commission,
action was not one merely upon an obligation arising from contract, as fraudulent nature of
misconduct sounded in tort and justified a claim for punitive damages, and (2) punitive
damages award was not excessive.
Affirmed.
Alan R. Smith, Reno, for Appellants and Cross-Respondents.
William A. S. Magrath II, McDonald, Carano, Wilson, Bergin, Frankovich & Hicks, Reno,
for Respondents and Cross-Appellants.
1. Brokers.
Where vendors listed their home for sale with licensed real estate broker, broker guaranteed either to
sell home by certain date at best obtainable price over $125,000, or to purchase it for $125,000 if no
better offer were received, but broker violated agreement by withholding from
vendors information concerning an offer of $150,000, at same time lying to vendors
and coercing them to sell home to brokerage for $125,000 less commission, vendors
could seek more than compensatory damages, as action was not one merely upon an
obligation arising from contract; fraudulent nature of misconduct sounded in tort and
justified a claim for punitive damages.
better offer were received, but broker violated agreement by withholding from vendors information
concerning an offer of $150,000, at same time lying to vendors and coercing them to sell home to
brokerage for $125,000 less commission, vendors could seek more than compensatory damages, as action
was not one merely upon an obligation arising from contract; fraudulent nature of misconduct sounded in
tort and justified a claim for punitive damages.
2. Brokers.
Jury's award of $125,000 in punitive damages to vendors who were defrauded by real estate broker was
not excessive, considering that broker, in his own testimony, boasted of hundreds of transactions similar to
the one in which he defrauded vendors, and evidence established that he not only repeatedly lied to
vendors, and defrauded them, but hypocritically badgered one of the vendors, telling her she was greedy,
should go to church, and drop on her knees and pray about her greediness; jury could reasonably
conclude that only an award of substantial size would effectively deter broker from fraudulent activities in
the future.
3. Damages.
Unless evidence introduced at trial shows that award of punitive damages would financially destroy or
annihilate defendant, its propriety rests within discretion of trier of fact.
OPINION
Per Curiam:
Appellants Charles F. Phillips and Executive Realty, Inc., here challenge a jury verdict
which granted the respondents, Frank W. Lynch and his wife Jacqueline, compensatory
damages of $17,500 for breach of contract, and punitive damages of $125,000 for fraudulent
violation of fiduciary duties. Respondents listed their home for sale with the appellants,
licensed real estate brokers, agreeing to pay a 5 percent commission. Appellants guaranteed
either to sell the home by November 1, 1979, at the best obtainable price over $125,000, or to
purchase it from respondents for $125,000 if no better offer were received. Appellants
violated the agreement by withholding from respondents information concerning an offer of
$150,000, at the same time lying to respondents and coercing them to sell the home to
appellants for $125,000 less commission. On appeal, appellants concede that they breached
the listing contract, but maintain that the punitive damages award lacked legal basis. We
disagree.
[Headnote 1]
In circumstances like those concerned herein, this court has recognized that the aggrieved
party may seek more than compensatory damages. Such an action is not one merely upon an
obligation arising from contract, within the meaning of NRS 42.010. Here, the fraudulent
nature of the wrongdoers' misconduct sounds in tort and justifies a claim for punitive
damages. See, e.g., Northern Nev. Mobile Home v.
duct sounds in tort and justifies a claim for punitive damages. See, e.g., Northern Nev. Mobile
Home v. Penrod, 96 Nev. 394, 398, 610 P.2d 724 (1980). Thus, this case present an
appropriate occasion for sanctions of this nature.
[Headnote 2]
Appellants' counsel contends that the jury's award of punitive damages was excessive,
urging that it evidently was motivated by passion and prejudice. However, the record amply
supports the jury's determination. In his own testimony, Phillips boasted of hundreds of
transactions similar to the one in which he defrauded respondents. The evidence established
that he not only repeatedly lied to the respondents, and defrauded them, but hypocritically
badgered Mrs. Lynch, telling her that she was greedy, should go to church, and should
drop on her knees and pray about her greediness. Based on this record, we believe a jury
could reasonably conclude that only an award of substantial size would effectively deter
appellants from fraudulent activities in the future.
[Headnote 3]
Appellants further contend that the amount of punitive damages will financially annihilate
them. This court has repeatedly reiterated the rule that, unless evidence introduced at trial
shows the award would financially destroy or annihilate the defendant, its propriety rests
within the discretion of the trier of fact. Hale v. Riverboat Casino, Inc., 100 Nev. 299, 682
P.2d 190 (1984); see also Summa Corp. v. Greenspun, 98 Nev. 528, 535-36, 655 P.2d 513
(1982); Bull v. McCuskey, 96 Nev. 706, 711, 615 P.2d 957 (1980). In the court below,
appellants never raised the possibility of financial annihilation as a result of a punitive
damages award. Moreover, they admitted to a net worth of at least $850,000 in real estate
holdings. Accordingly, appellants' present contentions concerning financial annihilation are
deemed without substance, and, as this court said in Tahoe Village Realty v. DeSmet, 95 Nev.
131, 136, 590 P.2d 1158 (1979): While the award is quite high, it does not shock our
conscience in this case, wherein the expertise, professionalism, ethics and reliability of
licensed real estate agents of this state are involved.
1

Appellants' remaining contentions are without merit. Respondents' request for attorney's
fees on appeal is denied. The judgment of the court below is affirmed in all respects.
____________________

1
Indeed, we feel constrained to note that the authorities concerned with the licensing and regulation of
realtors should not construe the punitive damages award to preclude further administrative sanctions.
____________
101 Nev. 314, 314 (1985) Capital Mortgage Holding v. Hahn
CAPITAL MORTGAGE HOLDING, Appellant, v. MARGARET HAHN, SHARRON
FUCHS, RANDY FUCHS and FRANK FUCHS, Respondents.
No. 15188
August 20, 1985 705 P.2d 126
Appeal from order granting motion to dismiss plaintiff's complaint. Eighth Judicial
Action was brought seeking specific performance or damages for breach of oral contract to
transfer interest in land. The district court granted defendants' motion to dismiss complaint
for failure to state claim for relief, and plaintiff appealed. The Supreme Court held that
complaint seeking to enforce oral agreement to transfer interest in land sufficiently alleged
facts which established part performance or estoppel, and thus sufficiently alleged existence
of exception to statute of frauds.
Reversed and Remanded.
Wiener, Waldman and Gordon, and Robert J. Gower, Las Vegas, for Appellant.
Ira H. Hecht, Las Vegas, for Respondents.
On motion to dismiss for failure to state claim for relief, trial court and Supreme Court must construe
pleadings liberally and draw every fair intendment in favor of plaintiff, and allegations in complaint must
be accepted as true. NRCP 12(b), subd. 5.
2. Frauds, Statute of.
Complaint seeking to enforce oral agreement to transfer interest in land sufficiently alleged facts which
established part performance or estoppel, and thus sufficiently alleged existence of exception to statute of
frauds. NRCP 12(b), subd. 5; NRS 111.210, subd. 1.
OPINION
Per Curiam:
Appellant Capital Mortgage Holding Corporation (Capital) brought suit in district court
against the respondents seeking specific performance or damages for breach of an oral
contract. Respondents moved to dismiss the complaint for failure to state a claim for relief
pursuant to NRCP 12(b)(5), on the ground that recovery was barred by the statute of frauds.
The district court granted the motion, and this appeal followed. For the reasons expressed
below, we reverse.
[Headnote 1]
On a motion to dismiss for failure to state a claim for relief, the trial court and this court
must construe the pleadings liberally and draw every fair intendment in favor of the plaintiff.
Brown v. Kellar, 97 Nev. 582, 636 P.2d 874 (1981); Merluzzi v. Larson, 96 Nev. 409, 610
P.2d 739 (1980). Allegations in the complaint must be accepted as true. San Diego
Prestressed v. Chicago Title Ins., 92 Nev. 569, 555 P.2d 484 (1976).
Capital's complaint alleges that the parties each held a deed of trust on the same property.
Respondents were the senior holders, and Capital the junior. Eventually, the promisors failed
to make payments to respondents and Capital on the underlying promissory notes, and the
promisors filed a voluntary petition for bankruptcy. Respondents filed a complaint in
bankruptcy court to lift the automatic stay in order to proceed with foreclosure proceedings.
Capital further alleges that respondents and Capital entered into discussions before the
hearing on the complaint to lift the stay, and that they reached an oral agreement that would
enable Capital to protect its position as holder of the junior deed of trust. According to
Capital, the parties agreed that if respondents were allowed to complete their foreclosure sale
without interference from Capital, respondents would then convey the property to Capital,
who would cure all arrearages and execute a new note and an all-inclusive deed of trust in
favor of respondents. Allegedly, in reliance on the agreement, Capital did not file its own
complaint to lift the stay and it did not participate in the foreclosure sale. Respondents
purchased the property for $285,000, the amount due under their note secured by the deed of
trust, and Capital's junior deed of trust in the amount of $100,000 was extinguished by
operation of law. Capital sought enforcement of the oral agreement, but respondents would
not comply. This lawsuit ensued.
[Headnote 2]
Capital admits that the agreement it is seeking to enforce is an oral agreement to transfer
an interest in land, which is normally barred by the statute of frauds, NRS 111.210(1).
1
Capital contends, however, that oral agreements otherwise unenforceable because of the
statute of frauds may be enforced under the doctrines of part performance or estoppel. See
Schreiber v. Schreiber, 99 Nev. 453
____________________

1
Every contract for the leasing for a longer period than 1 year, or for the sale of any lands, or any
interest in any lands, 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.
Schreiber, 99 Nev. 453, 663 P.2d 1189 (1983) (part performance and estoppel applicable to
oral property settlement agreement). Capital argues that the facts set forth in the complaint are
sufficient to allege either estoppel or part performance, or both. We agree.
While both exceptions to the statute of frauds must be established at trial by an
extraordinary measure or quantum of evidence, Zunino v. Paramore, 83 Nev. 506, 435 P.2d
196 (1967), the complaint need only sufficiently allege the existence of an exception. At this
point, we cannot determine whether the evidence, not yet adduced, will establish an exception
to the statute of frauds. Capital's complaint alleges that in reliance on the oral agreement with
respondents, it did not take such action as would have been necessary to allow it to participate
in the foreclosure sale and protect its position as holder of the junior deed of trust. In light of
these allegations, we conclude that the complaint sufficiently alleges facts which establish
part performance or estoppel. See generally Lubritz v. Circus Circus Hotels, 101 Nev. 109,
693 P.2d 1261 (1985) (elements of estoppel); Summa Corp. v. Greenspun, 96 Nev. 247, 607
P.2d 569 (1980) (requirements of doctrine of part performance). Capital should have been
given the opportunity to prove those facts. See Jones v. Barnhart, 89 Nev. 74, 506 P.2d 430
(1973) (district court erred in dismissing complaint as barred by the statute of frauds; plaintiff
might establish part performance or estoppel).
Accordingly, we reverse the order of the district court dismissing the complaint against
respondents, and we remand this matter to the district court for further proceedings.
____________
101 Nev. 316, 316 (1985) Jaramillo v. Blackstone
ABE JARAMILLO; LAS VEGAS FERTILIZER CO., INC., a Nevada
Corporation, Appellants, v. LESLIE BLACKSTONE and AUDREY
HELEN BLACKSTONE, Respondents.
No. 15822
August 20, 1985 704 P.2d 1084
Appeal from order granting a new trial; Eighth Judicial District Court, Clark County;
Miriam Shearing, Judge.
Pedestrian who was struck and injured by automobile brought action against driver and
driver's employer. After jury returned verdict indicating that pedestrian had been 63 percent
negligent and that driver had been 37 percent negligent, the district court granted pedestrian's
motion for new trial, and driver and its employer appealed.
employer appealed. The Supreme Court held that it was not impossible for jury to conclude
that pedestrian was more at fault than driver.
J. Bruce Alverson, Las Vegas, for Appellants.
Alan R. Harter, Las Vegas, for Respondents.
Traditionally, when evidence upon which lower court's judgment rests is not included in record on
appeal, it is presumed that record supports district court's findings.
Supreme Court will reverse judgment of lower court where appellant makes prima facie showing of error
on partial record and respondent fails to meet burden of designating those portions of trial transcript which
would support lower court's findings.
3. Automobiles.
It was not impossible for jury to conclude that pedestrian who was struck and injured by automobile was
more at fault than driver and reach verdict that pedestrian was 63 percent negligent, as there was evidence
that pedestrian stepped from center turn lane into path of vehicle when vehicle was so close that it was
impossible for driver to stop vehicle prior to impact.
Supreme Court would reverse lower court's order granting motion for new trial where appellants made
prima facie showing on partial record that lower court erred in granting motion for new trial, and
respondent failed to designate any pertinent portions of trial transcript to rebut this showing.
OPINION
Per Curiam:
Respondents Leslie and Audrey Blackstone brought suit against appellants Abe Jaramillo
and his employer Las Vegas Fertilizer Company (the Company), claiming that Leslie
Blackstone was struck and injured by an automobile driven by Abe Jaramillo and owned by
the Company. The jury returned a verdict indicating that Leslie Blackstone had been 63
percent negligent and that Jaramillo had been 37 percent negligent. The Blackstones timely
moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The
district court granted the motion for a new trial, and it is from this order that Jaramillo and the
Company appeal.
A new trial may be granted if there has been a manifest disregard by the jury of the
instructions of the court. NRCP 59(a)(5). The standard for granting a new trial on this basis
was recently discussed by this court in Weaver Brothers, Ltd. v.
recently discussed by this court in Weaver Brothers, Ltd. v. Misskelley, 98 Nev. 232, 645
P.2d 438 (1982), and we stated that in determining the propriety of the granting of a new
trial under NRCP 59(a)(5), the question is whether we are able to declare that, had the jurors
properly applied the instructions of the court, it would have been impossible for them to reach
the verdict which they reached. 98 Nev. at 234, 645 P.2d at 439; see also Groomes v. Fox,
96 Nev. 457, 611 P.2d 208 (1980); Eikelberger v. Tolotti, 94 Nev. 58, 574 P.2d 277 (1978).
Consequently, the lower court could have properly granted the motion for a new trial only if it
would have been impossible for the jury, properly applying the instructions of the court, to
conclude that Blackstone was 63 percent negligent and that Jaramillo was 37 percent
negligent.
[Headnotes 1, 2]
In the present case, Jaramillo and the Company designated only a partial record on appeal.
The record contains the pleadings, motions, instructions, verdicts, and orders. It also contains
transcripts of defense counsel's closing argument, defense witness Alfred Bossi's trial
testimony, and the proceedings on the Blackstones' motion for a JNOV or new trial. It does
not contain transcripts of the trial testimony of any other witnesses. Traditionally, when
evidence upon which the lower court's judgment rests is not included in the record on appeal,
it is presumed that the record supports the district court's findings. See Hampton v. Washoe
County, 99 Nev. 819, 672 P.2d 640 (1983). Nevertheless, this court has held that where an
appellant makes a prima facie showing of error on a partial record, it becomes the
respondents' burden to designate those portions of the trial transcript which would support the
lower court's findings. If the respondent fails to meet this burden, this court will reverse the
judgment of the lower court. See Bates v. Chronister, 100 Nev. 675, 691 P.2d 865 (1984);
Driscoll v. Erreguible, 87 Nev. 97, 482 P.2d 291 (1971).
[Headnote 3]
Relying on the testimony of Alfred Bossi, the Chief Traffic Engineer for the city of Las
Vegas, the defense established that Leslie Blackstone was struck by an automobile driven by
Abe Jaramillo. The roadway upon which the accident occurred consisted of two southbound
lanes, a center turn lane, and two northbound lanes of traffic. Blackstone was on the west side
of the street and was crossing to the east side in a pedestrian crosswalk. Jaramillo was
travelling north in the travel lane which was closest to the center turn lane.
Based on the average pedestrian walking speed and the point of impact, Bossi determined
that it took Blackstone 12.6 seconds to walk the 44 feet from the west curb of the street to
the point where he was hit by the automobile.
walk the 44 feet from the west curb of the street to the point where he was hit by the
automobile. Based on the length of skid marks and the coefficient of friction for Las Vegas
roads under wet road conditions, Bossi determined that Jaramillo was travelling 15.5 miles
per hour. Travelling at 15.5 mph, it would take someone of Jaramillo's age 2.3 seconds to
perceive danger, react to the situation by applying the automobile brakes, and bring the
vehicle to a complete stop. In other words, once Jaramillo was 2.3 seconds away from the
point of impact, it would have been physically impossible for him to stop the vehicle.
Bossi concluded that when Jaramillo was 2.3 seconds from the point of impact, Blackstone
was still in the center turn lane. The theory of the defense was that Blackstone stepped from
the center turn lane into the path of the vehicle driven by Jaramillo when it was physically
impossible for the vehicle to be stopped prior to impact.
The jury was instructed on contributory negligence, and the right of way of a pedestrian.
1
From the evidence presented by Bossi, it is possible that the jury concluded that Blackstone
suddenly left the center turn lane, a place of safety, and walked into the path of the vehicle
when it was so close that it was impossible for Jaramillo to stop the vehicle in order to yield
to Blackstone. Bossi's testimony indicates that it was not impossible for the jury to conclude
that Blackstone was more at fault than Jaramillo and reach the verdict which it did.
[Headnote 4]
On the partial record before the court, we conclude that Jaramillo and the Company made
a prima facie showing that the lower court erred in granting the Blackstones' motion for a new
trial. Since the Blackstones failed to designate any pertinent portions of the trial transcript
to rebut this showing, we reverse the lower court's order granting the motion for a new
trial.
____________________

1
The relevant jury instructions provided as follows:
Jury Instruction No. 19:
It is the duty of every person using a public street or highway, whether as a pedestrian or as a driver
of a vehicle, to exercise ordinary care at all times to avoid placing himself or others in danger and to use
like care to avoid an accident from which an injury might result.
Jury Instruction No. 20:
There was in force and effect at the time of the accident, Nevada Revised Statute 484.325 which
states as follows:
When official traffic-control devices are not in place or not in operation, the driver of a vehicle shall
yield the right of way, slowing down or stopping if need be so to yield, to a pedestrian crossing the
highway within a crosswalk when the pedestrian is upon the half of the highway upon which the vehicle is
traveling, or when the pedestrian is approaching so closely from the opposite half of the highway as to be
in danger.
No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a
vehicle which is so close that it is impossible for the driver to yield. (Emphasis added.)
portions of the trial transcript to rebut this showing, we reverse the lower court's order
granting the motion for a new trial. This case is remanded to the lower court with instructions
that it rule on respondents' motion for attorney's fees and court costs, which the lower court
had previously considered moot in light of its order granting the motion for a new trial.
____________
101 Nev. 320, 320 (1985) Morse v. Daly
TIMOTHY R. MORSE and SHERRY L. MORSE, Appellants and Cross-Respondents, v.
JUANITA DALY, Respondent and Cross-Appellant.
No. 16054
August 20, 1985 704 P.2d 1087
Appeal and cross-appeal from an order granting an adoption; Eighth Judicial District
Court, Clark County; Howard D. McKibben, Judge.
In adoption proceeding, the district court granted petition to adopt child but conditioned
decree of adoption by reserving jurisdiction to consider possible future request for visitation
privileges by child's step grandmother, and adoptive parents appealed. The Supreme Court,
Gunderson, J., held that it was within proper exercise of court's equitable powers to condition
adoption decree by reserving jurisdiction to consider possible future requests for visitation
privileges by child's step grandmother.
Affirmed.
Wiener, Waldman & Gordon, Las Vegas; Diehl, Evans & Associates, Fallon, for
Appellants and Cross-Respondents.
Goodman, Terry, Stein & Quintana, Las Vegas, for Respondent and Cross-Appellant.
Supreme Court must accept as established all facts which evidence tends to prove in respondent's favor,
and must accord to respondent the benefit of all inferences which may reasonably be drawn from such
evidence.
2. Adoption.
It is within trial court's inherent equitable power to incorporate within an adoption decree an order for
visitation by persons other than the adoptive parents, if court finds it to be in child's best interest.
101 Nev. 320, 321 (1985) Morse v. Daly
3. Adoption.
It was within proper exercise of court's equitable powers to condition adoption decree by reserving
jurisdiction to consider possible future request for visitation privileges by child's step grandmother.
OPINION
In the instant appeal, Timothy R. Morse and Sherry L. Morse (the Morses) question the
district court's power to condition a decree of adoption, which granted the Morses' petition to
adopt a child named Marcus Daly Lamb, by reserving jurisdiction to consider a possible
future request for visitation privileges by Juanita Daly. The Morses contend that a Nevada
court, in an adoption proceeding, has no power to consider whether a child's best interests
will be served by allowing the child to visit with others. Mrs. Daly, Marcus Daly Lamb's
step grandmother or grandmother by marriage, contends that the district court acted
properly when it reserved jurisdiction to consider a petition for visitation at some future date.
We agree with Daly and, for the reasons discussed in this opinion, we affirm the district
court's order.
This case presents the second occasion on which this court has been called to consider
whether, by virtue of her viable relationship with her deceased husband's grandson, Daly is
entitled to have her desire for visitation rights considered by the district court. In Daly v.
Morse, 99 Nev. 532, 665 P.2d 797 (1983), we decided this issue in the context of litigation
between Daly and William R. Morse, the child's personal guardian. The elder Morse had
placed the child, who is the beneficiary of a substantial estate, in the physical custody of his
son and daughter-in-law, the respondents herein. The latter refused to allow the child to
continue visiting with Daly and, in the litigation thus precipitated, this court held that the
district court had jurisdiction to consider Daly's petition for visitation, by virtue of the court's
power to regulate, control, deny or modify the guardianship over Marcus Daly Lamb. 99
Nev. at 535, 665 P.2d at 798. Then, after this court filed its decision, but before the district
court could act upon it, the Morses petitioned the district court to adopt the child.
The district court consolidated the Morses' adoption proceeding for hearing with Daly's
petition for visitation. After taking evidence, the court granted the adoption petition, which
Daly had not unqualifiedly opposed. Daly's stance was that, although the child's interests
might be served by allowing the adoption, she also had something important to offer the
child.
101 Nev. 320, 322 (1985) Morse v. Daly
also had something important to offer the child. Thus, she contended, the adoption should
only be granted if the child's right to visit with Daly were to be preserved, and the district
court evidently agreed. Although the court denied Daly's petition for immediate visitation, it
incorporated in the adoption decree a reservation of jurisdiction to consider visitation rights
again at some future time. The court specifically determined that this disposition would serve
the best interests of the minor child. The Morses have appealed.
The Facts
[Headnote 1]
Before addressing the legal issues, a brief review of the pertinent facts is necessary. For the
most part, the evidence is not in dispute. In any case, because Daly prevailed in regard to the
matter now under review, we must accept as established all facts which evidence tends to
prove in her favor, and must accord to Daly the benefit of all inferences which may
reasonably be drawn from such evidence. Alex Novack & Sons v. Hoppin, 77 Nev. 33, 42,
359 P.2d 390, 395 (1961).
While married to Kathryn Daly, Marcus Daly III fathered a child, Candace Marie, with
another woman. He and Kathryn adopted the child, and, upon their divorce, the court awarded
Kathryn custody. In December of 1958, Marcus married Juanita Daly, who remained his wife
until his death in November, 1970. During her minority, the Dalys had physical custody of
Candace in the summer months.
Marcus Daly Lamb was born to Candace and her husband, Earl Lamb, in July of 1978.
Earl Lamb died in February, 1979; Candace died in June, 1981. Candace's will designated
William R. Morse as Marcus's guardian, and he was appointed as such by court order. Mr.
Morse arranged for the placement of Marcus in the Las Vegas home of his son and
daughter-in-law, Tim and Sherry Morse, as compensated foster parents.
1

Soon after Daly learned that young Marcus was residing in Las Vegas, where she lives, she
made arrangements to visit with him. Daly testified she was just happy to get to give to him
love that a grandparent could give to a child. Daly said that she and young Marcus had a
good time together on their visits. Marcus called her Grandma at first, then Neenie.
Sometimes they would ride double-seated bicycles together; she also bought him a bicycle
of his own. On most of their visits, Daly shared with Marcus as much of his family heritage
as she believed a child of his age could understand.
____________________

1
William R. Morse testified that his son and daughter-in-law were paid nearly $43,000 for their care of
Marcus from June 12, 1981, to May 31, 1983.
101 Nev. 320, 323 (1985) Morse v. Daly
Marcus as much of his family heritage as she believed a child of his age could understand.
There was, she felt, an unexplainable transmission of love between her and the child.
Daly testified that, after she had been visiting with Marcus for about six months, Sherry
Morse suddenly and unexpectedly declared that she could no longer visit with the child.
Sherry relayed to Daly that William R. Morse had decided there could be no further visitation
until Daly called him to explain what her intentions were, what role she planned on
playing in the child's life, and what she wanted from Marcus. Apparently because of some
distrust of William R. Morse by Daly, due to attorney fees he had collected from the estate of
Candace and through the guardianship, Daly did not wish to speak with him. Nonetheless
Daly, an affluent person in her own right, had her personal secretary telephone Morse's office
to try to arrange for continued visitation with the child. Her communications were not
returned; hence, she petitioned the district court.
At the consolidated hearing ultimately held following our first decision, Daly testified that
I can give [Marcus] a great deal of love. And I can give him an extension of the heritage of
the Daly family that I have been blessed to have. She said that all she wanted from Marcus is
a good life for him. Since June, 1982, however, Daly has not been allowed to visit with
Marcus.
The Morses do not appear to contend Daly is unfit or undesirable, so that association with
her would injure the child. Indeed, they evidently do not contest the district court's factual
finding that the child's best interests will be served by preserving the potential for future
visitation with Daly. Their claim or error apparently is purely legal and technical. The district
court, the Morses contend, simply has no authority when granting an adoption to make any
provision for visitation by persons other than the adoptive parentsno matter how much such
visitation might serve the child's interests. Thus, the Morses assert in effect, they may accept
the part of the district court's decree which permitted them to adopt Marcus Daly Lamb, and
then on appeal request this court to strike the provision that determined the child's best
interests will be served by reserving jurisdiction to consider future requests for visitation. We
turn to consider the issue thus raised.
The Legal Issue
[Headnotes 2, 3]
We note initially that nothing in Nevada's adoption statutes or in our case authority
precludes a district court from incorporating within an adoption decree an order for visitation,
if the court finds it to be in the child's best interest. We have previously recognized that
"[t]he main purpose of adoption statutes is the promotion of the welfare of the children,
bereft of the benefits of the home and care of their real parents."
101 Nev. 320, 324 (1985) Morse v. Daly
recognized that [t]he main purpose of adoption statutes is the promotion of the welfare of
the children, bereft of the benefits of the home and care of their real parents. Mendive v.
District Court, 70 Nev. 51, 58-59, 253 P.2d 884, 887 (1953). Because the district court's order
is founded on the promotion of the welfare of young Marcus, and is not precluded by statute
or case authority, we therefore think it is within the court's inherent equitable power. Even
though such an exercise of the court's power has not previously been questioned through
litigation before us, such orders have been approved in a number of other jurisdictions.
For example, in New York it has been decided that a family court has jurisdiction to enter
an order of adoption which includes a provision allowing an adoptive child to have continued
contact and visitation with his biological siblings. Even though the would-be adoptive parents
had advised the family court that they intended to permit such visitation voluntarily, it was
determined the best interests of the child would be served by incorporating an explicit
provision for visitation in the adoption decree. The child, the court said, should be protected
from the prospect that the new parents might later change their minds. Matter of Adoption of
Anthony, 448 N.Y.S.2d 377, 378 (Fam.Ct. 1982).
In its well-reasoned opinion, the court went on to note its awareness of psychological data
indicating that, when children like Marcus are adopted by foster parents, their best interests
are typically served by continued contact with members of their existing families. As the
court said:
Research by psychiatrists and psychologists has also revealed the importance of a
child's links to known ancestral, religious, ethnic and cultural backgrounds. Recent
studies indicate that shrouding a child's background in an air of mystery, even for a
child adopted at birth, can cause psychological harm, retarding emotional development
and self-identity. . . . Accordingly, where adoption cannot be a total replacement of the
birth family, but rather a legal means of assuring the adoptive parents and the child that
their relationship is permanent, an open adoption may guarantee this permanency
without unnecessarily severing important relationships with known members of the
child's birth family existing prior to the adoption.
2

448 N.Y.S.2d at 379-80 (footnotes omitted).
____________________

2
We realize, as the New York court surely did in the case it considered, that the case before us does not
present an open adoption situation as that concept is generally defined.
An open adoption occurs when, prior to the adoption, it is agreed in writing that the child will have
continuing contact with one or more members of his or her biological family after the adoption is
completed . . . The court would approve the agreement if it could be shown that
101 Nev. 320, 325 (1985) Morse v. Daly
The New York court recognized that incorporating visitation orders within an adoption
decree is not explicitly authorized by statute in New York, but it located the necessary
authority to fashion such an order in the court's power at law and in equity to promote the
welfare of the child. 448 N.Y.S.2d at 380.
3
Because its order granted an adoption, the court
recognized that it should not only consider the best interests of the child, but also determine
that the visitation does not unduly interfere with the adoptive relationship.
4
Id.
____________________
this was in the child's best interest. The agreement would then be incorporated into the . . . final order of
adoption. The court would maintain jurisdiction as in a divorce proceeding and could modify the
agreement if necessary for the child's welfare.
Amadio & Deutsch, Open Adoption: Allowing Adopted Children to Stay in Touch With Blood Relatives, 22
J.Fam.L. 59, 60-61 (1983) (footnote omitted).
The case before us does not present an open adoption because the parties have not agreed to continuing
visitation. Nonetheless, the inherent power of the lower court to incorporate into an adoption decree a visitation
order for its future consideration is not unlike the exercise of power by courts which have granted open
adoptions.

3
The New York court also noted that in Matter of Raana Beth N., 355 N.Y.S.2d 956 (N.Y.Surr.Ct. 1974), an
earlier court had held that it had equitable jurisdiction to make orders of visitation incident to an adoption
proceeding. 448 N.Y.S.2d at 380. That the Court has such power was recognized as early as 1917 in Matter of
McDevitt, 176 A.D. 418, 162 N.Y.S. 1032 (2nd Dept. 1917), where a mother was granted visitation rights with
her child following adoption. Id. (Emphasis added.) In fact, a court's power to grant visitation orders
subsequent to adoption proceedings is not uncommon in this country. E.g., Welsh v. Laffey, 474 N.E.2d 681
(Ohio App. 1984); Lingwall v. Hoener, 464 N.E.2d 1248 (Ill.App. 1984); Reeves v. Bailey, 126 Cal.Rptr. 51
(Ct.App. 1975); Scranton v. Hutter, 339 N.Y.S.2d 708 (App.Div. 1973). See generally Note, Visitation After
Adoption: In the Best Interests of The Child, 59 N.Y.U.L. Rev. 633 (1984).

4
The New York court realized that this two-part test should not be applied to exclude visitation merely
because visitation is opposed by the adoptive parents. The court noted that in Peo. ex rel. Sibley v. Sheppard,
429 N.E.2d 1049 (N.Y.Ct.App. 1981), New York's highest court had affirmed a lower court's order.
permitting a grandparent visitation with her grandchild despite the child's adoption and the objections of
the adoptive parents. In doing so, the Court of Appeals recognized that an adoption does not
automatically sever all contacts between the adoptive child and members of the birth family and that the
Court has the authority to preserve such contacts when necessary to protect the best interests of the child
even when opposed by the adoptive parents.
448 N.Y.S.2d at 380 (footnote omitted) (emphasis added).
Similarly, merely because the Morses are opposed to Daly's visitation with Marcus does not mean that
visitation will not serve the child's best interests at some time in the future.
101 Nev. 320, 326 (1985) Morse v. Daly
Quite similarly, in the case before us, the district court considered all of the Morses'
objections and concerns, and nonetheless determined expressly that the child's best interests
justified its reservation of jurisdiction. Those best interests, the court evidently believed, may
be advanced if, at a later date, Daly is afforded a further opportunity to offer her husband's
grandson her own grandmotherly love and comfort, as well as her knowledge of the Daly
family heritage.
In a like case, a New Jersey court recognized an equitable jurisdiction to incorporate
within an adoption decree a provision for visitation by the child's natural father. Matter of
Adoption of Children by F, 406 A.2d 986 (N.J.Super.Ct.Ch.Div. 1979). As with Daly in the
instant case, the father did not oppose the adoption, but sought to assure that the child could
continue to see him.
5
In reaching its decision, the court noted that, as did Daly in the instant
case, the father had enjoyed a viable relationship with the children, before his prior contacts
with the children were frustrated by the children's natural mother. 406 A.2d at 989. Thus, to
promote the best interests of the children, the court not only required visitation as an incident
of its adoption decree, but further exercised its equitable powers by appointing a guardian ad
litem to enforce the visitation order. Id.
Again, while considering the claim by grandparents for visitation with a child adopted by a
stepfather, a California Court of Appeal held that it is a question of fact as to whether such
visitation rights would be in the best interests of the minor child and would not unduly hinder
the adoptive relationship. Roquemore v. Roquemore, 80 Cal.Rptr. 432, 435 (Ct.App. 1969).
In so holding, the court recognized that:
[u]nquestionably the substitution of adoptive for natural parents serves a great number
of social objectives. On the other hand the law should not and cannot ignore the fact
that an adopted person may not in many respects be cut off from his natural family. If
affection and regard remains between members of a natural family, the law should not
in the name of consistency undertake to thwart the expression of those feelings when
the encouragement thereof does not hinder the adoptive relationships.
80 Cal.Rptr. at 434 (citation omitted).
In another recent case, a different division of the California Court of Appeal characterized
the decision just discussed as recognizing that visitation should be available "as a flexible
device to promote the child's welfare."
____________________

5
While Mrs. Daly argues on appeal that the legal guardian's consent to the adoption was legally invalid
because of an alleged interest by William R. Morse in the adoption proceeding, we do not construe either this
argument or her similarly based assertion before the court below as a refusal to consent to the adoption.
101 Nev. 320, 327 (1985) Morse v. Daly
Court of Appeal characterized the decision just discussed as recognizing that visitation should
be available as a flexible device to promote the child's welfare. Reeves v. Bailey, 126
Cal.Rptr. 51, 56 (Ct.App. 1975).
We agree. This flexible device, when properly utilized within an adoption decree, not only
can promote the best interests of the child but need not unduly impinge on the adoptive
parents.
Accordingly, we hold that the adoption decree in the instant casewhich was conditioned
upon the court's reservation of jurisdiction to consider visitation rights in the future, and
which was based upon an express determination of the child's best interestswas within
proper exercise of the court's equitable powers.
We also have considered Daly's contention that William R. Morse's consent to the
adoption was invalid, and have determined that it lacks merit. The district court's decision is
therefore affirmed in all respects.
6

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

6
Justice John C. Mowbray recused himself, and took no part in the decision of this case.
____________
101 Nev. 327, 327 (1985) McKague v. State
KENNETH McKAGUE, Appellant, v. THE
No. 12098
August 27, 1985 705 P.2d 127
Appeal from judgment of conviction and sentences on two counts of first-degree murder,
one count of armed robbery, and one count of burglary with use of a deadly weapon, Second
Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Defendant was convicted in the district court of first-degree murder, and was sentenced to
death. Defendant appealed. The Supreme Court held that: (1) Supreme Court was not
required to consider claims of error for which contemporaneous objections were not tendered
to district court, and (2) death sentence was not excessive or disproportionate to penalty
imposed in similar cases.
Affirmed.
David G. Parraguirre, Public Defender; Michael B. McDonald, Deputy Public Defender;
N. Patrick Flanagan, Special Counsel, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney; Richard F.
Cornell, Deputy District Attorney; Michael L. Mahaffey, Deputy District Attorney; Edward
B. Horn, Deputy District Attorney, Reno, for Respondent.
1. Criminal Law.
Supreme Court was not required to consider claims of error for which contemporaneous objections were
not tendered to district court.
2. Criminal Law.
Even assuming that instruction regarding possibility of executive clemency was defective, instruction did
not impact adversely on essential fairness of first-degree murder trial.
3. Homicide.
Death sentence imposed upon defendant who had shot owners of motel while committing burglary was
not excessive or disproportionate to penalty imposed in similar cases. NRS 177.055.
OPINION
Per Curiam:
Appellant Kenneth McKague was found guilty of two counts of first-degree murder in the
deaths of William and Irene Hembry and was sentenced to death. Appellant was also
convicted of one count of burglary and one count of armed robbery, receiving consecutive
sentences of ten years for the burglary count and fifteen years for the armed robbery count.
Each term of imprisonment was enhanced pursuant to NRS 193.165 for use of a deadly
weapon in the commission of a crime. Finding no error, we affirm appellant's conviction and
sentences.
The record reflects that on the morning of December 22, 1978, members of the Reno
Police Department were called to the Silver Dollar Motel by motel employees who had
noticed that the office cash drawer was open. In the living quarters attached to the motel,
police officers discovered the dead bodies of William and Irene Hembry, the motel's owners.
The victims were lying face down, their hands bound behind their backs with electrical cord.
A subsequent examination established that, while on their knees, they had been shot in the
back of the head from a distance of two to six inches. Due to the power of the weapon used
and its proximity to the victims, small bits of blood and tissue were scattered around the room
Later that same day, Dale McCoy gave a statement to the police implicating appellant in
the murders. Dale McCoy had been a schoolmate of appellant's cousin, John McKague, in
California. In early December, Dale McCoy met John McKague in a Reno shopping center;
finding that he had no place to stay, she invited him to stay with her in her apartment. She
included in the invitation appellant, along with his wife and her two small children.
the invitation appellant, along with his wife and her two small children. Also living in the
studio apartment were Dale McCoy's brother, Randy McCoy, and Michael Tweedy, a friend
of the McCoys.
According to Dale McCoy, on December 21, the day of the murders, appellant and John
McKague left the apartment around noon. At around six o'clock, Dale and Randy McCoy saw
the McKagues in a Reno casino. Soon afterward, the McKagues ran out in the street,
stumbling as they went. When the McCoys returned to their apartment around seven o'clock,
the McKagues were already there. Appellant was wiping prints off a 9 mm Luger automatic
pistol; John McKague was in possession of a 9 mm Browning automatic pistol.
1
John
McKague told Dale McCoy that Kenny [appellant] blew away two people. He proceeded to
tell the McCoys that he and appellant had gone to the Silver Dollar Motel to burglarize it.
Suddenly Irene Hembry appeared, and John McKague put a gun to her stomach. William
Hembry told his wife to cooperate; appellant then tied the victims with electrical cord and
remained with them while John McKague went to look for money and jewelry. When John
McKague returned, he discovered that appellant had shot both victims in the back of the head.
2
Appellant was present when John McKague told his story and did not deny or contradict it.
In fact, appellant later told Dale McCoy that he had shot two people, commenting that maybe
he had killed them because he was related to Kit Carson. Appellant cut off the left knee of his
trousers in order to dispose of bloodstains; bloodstains were nevertheless later found on his
clothing.
The two cousins left Reno the following day. They were eventually arrested in California
and brought back to Reno. John McKague pleaded guilty to first-degree murder pursuant to
an agreement under which the prosecution agreed not to seek the death penalty in return for
John McKague's testimony before the grand jury and at trial. After his plea of guilty, John
McKague gave two lengthy statements to police officers and testified before the grand jury.
____________________

1
The McKagues had obtained the weapons from the burglary of a residence on December 21. Michael
Tweedy had also participated in the burglary. The three men had divided up the proceeds, the Luger going to
Tweedy, the Browning to John McKague and a .22 caliber Ruger revolver to appellant. Tweedy kept the Luger
in a closet in the McCoy apartment while he searched for a buyer. On December 21 or 22, Tweedy discovered
that the Luger had been replaced by the revolver. Appellant indicated to Randy McCoy that he intended to return
the Luger to the unsuspecting Tweedy before leaving town, and in fact later exchanged the weapons.

2
A subsequent ballistic examination of two 9 mm cartridge casings found near the victims' bodies established
that they had been fired from the Luger stolen by the McKagues and Tweedy.
the grand jury. He was sentenced to life imprisonment with the possibility of parole.
Appellant pleaded not guilty and did not testify at his trial. The jury found him guilty on
all counts. At the penalty hearing, defense counsel argued that the existence of mitigating
factors rendered the death penalty inappropriate. Evidence presented by counsel included
appellant's age, his history of drug abuse, and a psychologist's opinion that appellant was a
follower rather than a leader.
3
Counsel also argued that appellant had no significant
history of prior criminal activity; there was evidence, however that appellant's prior record
included eight arrests, a discharge from the army due to narcotics offenses, and a conviction
for a property crime. The jury did not find any mitigating circumstances. Instead, it found
four aggravating circumstances and imposed the death penalty. This appeal followed.
[Headnotes 1, 2]
Appellant raises numerous claims of error, most of which are totally without merit. As to
certain claims, no contemporaneous objections were tendered to the district court; such
claims therefore need not be considered.
4
Hooper v. State, 95 Nev. 924, 925, 604 P.2d 115,
116 (1979); Henderson v. State, 95 Nev. 324, 326, 594 P.2d 712, 713 (1979); Matthews v.
State, 94 Nev. 179, 181, 576 P.2d 1125, 1126 (1978). We note that appellant's direct
involvement in the dual murders here at issue is conclusively established by the record.
Likewise, the jury's determination that aggravating circumstances existed which were not
outweighed by mitigating circumstances appears to be well founded.
[Headnote 3]
We also conclude, after analyzing the circumstances of appellant's crime as required by
NRS 177.055, that considering both the crime and the defendant, the sentence of death is not
excessive or disproportionate to the penalty imposed in similar cases in this state. See e.g.,
Deutscher v. State, 95 Nev. 669, 601 P.2d 407 {1979); Bishop v. State, 95 Nev. 511
____________________

3
Appellant was twenty-five years old at the time of the murders. John McKague was seventeen years old.
Appellant's counsel urged at trial the appellant had committed the crime while under John McKague's
domination. However, although John McKague admitted that he had planned the burglary, there is no evidence
in the record suggesting that John McKague ordered or incited appellant to shoot the victims.

4
Appellant contends, inter alia, that the district court improperly instructed the jury regarding the possibility
of executive clemency. Even assuming that such instruction was defective, appellant failed to raise an objection
at trial. Turner v. State, 98 Nev. 103, 641, P.2d 1062 (1982). Moreover, we are persuaded on this record that
neither the instruction in question, nor the other matters concerning which appellant now belatedly complains,
impacted adversely on the essential fairness of the proceedings.
407 (1979); Bishop v. State, 95 Nev. 511, 597 P.2d 273 (1979). Finally, we conclude nothing
in the record indicates that the death sentence was imposed under the influence of passion,
prejudice or any other arbitrary factor. Accordingly, appellant's judgment of conviction and
his sentence are affirmed.
____________
101 Nev. 331, 331 (1985) Neuschafer v. State
JIMMY NEUSCHAFER, Appellant, v. THE
No. 14807
August 27, 1985 705 P.2d 609
Appeal from conviction of first degree murder and sentence of death; First Judicial District
Court, Carson City, Michael E. Fondi, Judge.
Supreme Court, Mowbray, J., held that: (1) defendant knowingly and intelligently waived his
right to consult an attorney before speaking to prison authorities with respect to death of
fellow prison inmate by initiating an interview with those authorities and then indicating
before interview that he understood his Miranda rights; (2) if defendant did not initiate
interview, any error in admitting incriminating statement made by him in that interview was
harmless beyond a reasonable doubt; (3) provision of death penalty statute setting forth
depravity of mind as an aggravating circumstance was not unconstitutionally vague; (4)
evidence elicited with respect to death of defendant's fellow inmate by strangulation was
sufficient to justify jury in finding depravity of mind as an aggravating circumstance; and
(5) sentence of death was not so disproportionate to sentences in other cases as to require that
it be set aside.
Affirmed.
Ronald F. Cauley; Linda Edmiston, Reno, for Appellant.
Brian McKay, Attorney General, Dan Reaser, Deputy Attorney General, Carson City, for
Respondent.
1. Criminal Law.
An accused who has asserted his right to consult counsel during police questioning is not subject to
further interrogation by authorities until counsel has been made available to him unless accused himself
initiates further communication, exchanges, or conversations with police, U.S.C.A.Const. Amend. 5.
2. Criminal Law.
Evidence suggesting that defendant requested to speak to prison authorities by writing a note with regard
to his involvement in death of a fellow inmate was sufficient, when combined with fact that defendant
indicated he understood his Miranda rights at start of interview, to establish that defendant knowingly and
intelligently waived his right to consult an attorney before speaking with authorities. U.S.C.A.Const.
Amend. 5.
3. Criminal Law.
Even if defendant did not initiate interview with prison authorities with respect to death of a fellow
inmate, where evidence of defendant's involvement in that death was overwhelming, any error in admitting
statement made to authorities during subsequent interview was harmless beyond a reasonable doubt.
U.S.C.A.Const. Amend. 5.
4. Homicide.
Evidence elicited with respect to death of defendant's fellow inmate by strangulation provided a sufficient
basis for jury to find depravity of mind as an aggravating circumstance in determining to impose
sentence of death on conviction of first degree murder. NRS 200.033, subd. 8.
5. Homicide.
Provision of death penalty statute [NRS 200.033, subd. 8] setting forth depravity of mind as an
aggravating circumstance in imposing a sentence of death on conviction of first degree murder is not
unconstitutionally vague. U.S.C.A.Const. Amend. 14.
6. Homicide.
Sentence of death imposed upon defendant on conviction of first degree murder in connection with
strangulation death of fellow prison inmate was not so disproportionate to similar cases as to require that it
be set aside in that individuals in other cases were not serving life sentences in contrast to defendant who
was serving first of two consecutive life sentences on two counts of first degree murder for deaths of two
girls, aged 13 and 15, who had been raped and then shot. NRS 177.055, subd. 2(d), 200.033, subd. 8.
OPINION
A jury convicted appellant Jimmy Neuschafer of the first degree murder of Johnnie
Johnson aka Willard Taylor.
1
At the penalty hearing, the jury found that the homicide had
been committed under three aggravating circumstances and no mitigating circumstances. The
jury returned the penalty of death. On appeal, Neuschafer raises three assignments of error,
none of which warrants reversal of the judgment of conviction or the sentence. Having
perceived no error, we conclude that Neuschafer was fairly tried, convicted and sentenced,
and we affirm.
In August 1981, Neuschafer and Johnnie Johnson were housed in the S wing of Unit 5
in the Nevada State Prison (maximum security) in Carson City.
____________________

1
This opinion will refer to the victim as Johnnie Johnson.
security) in Carson City. The S wing was designated close custody. Inmates housed in the
S wing could not leave the wing and inmates from other sections of the prison could not
enter it. Regulations for the S wing, effective in August 1981, permitted only two men to be
out of their cells and in the wing common areas at one time. Cells in the S wing were
locked and unlocked by remote control. Guards were stationed in the glass walled control
room. They could see parts of the wing directly and other parts through video cameras.
Guards communicated with inmates in the wing by intercom.
Johnnie Johnson was the wing porter for the S wing. The wing porter keeps the wing
clean, serves meals and passes out supplies to the inmates. The wing porter is permitted to be
out of his cell all day. Other inmates, one at a time, are released from their cells for an hour or
two a day. Thus, in the S wing during the first part of August 1981, only one inmate besides
Johnnie Johnson was allowed out of his cell at any given time.
At 7:30 a.m. on August 18, 1981, Johnnie Johnson was released from his cell. Ten minutes
later Neuschafer was released from his cell. Inmate Frederick Heimrich, who was housed next
to Johnson's cell, testified that Neuschafer helped Johnson serve breakfast that morning. Then
Heimrich heard Neuschafer and Johnson argue over somas. Neuschafer was prescribed
somas, pain pills, for headaches. Apparently, Johnson had paid Neuschafer for some somas
but Neuschafer refused to give them to Johnson. Heimrich heard them argue for some time,
then he heard Johnson enter Johnson's cell and Neuschafer follow him.
Inmate Gregory Barren said that he, too, heard Johnson and Neuschafer enter Johnson's
cell. Barren then heard a thud against the wall and the squeak of bed springs in Johnson's cell.
According to Barren, when Neuschafer returned to his own cell, he told Barren he had killed
Johnson.
Heimrich testified when Neuschafer came out of Johnson's cell he hung a blanket over the
doorway. At 9:30 a.m. Neuschafer had himself locked into his cell. Neuschafer told the guard
to release Heimrich. After Heimrich was released, he took a note to Johnson. Johnson was
lying on the floor of his cell. Heimrich testified that he thought Johnson was asleep since
inmates often sleep on the floor. Heimrich further testified that around 11:00 a.m.,
Neuschafer told him to report Johnson as a man down. A man down means an inmate is
sick or injured in his cell. Heimrich informed the prison guards over the intercom that there
was a man down.
Responding to the report, the guards entered the wing and removed a blanket from over
the doorway of Johnson's cell. They found Johnson lying on the floor, tightly wrapped in a
sheet from his neck to his ankles. A noose made of braided strips of bed sheets was around
his neck.
sheets was around his neck. The noose or ligature was so tight that the skin was bulging on
either side of it: a guard had to use a pocket knife to cut it off. A criminologist testified that
the strips of sheet making up the portion of the ligature around Johnson's neck were made of
cotton and were consistent with the torn cotton sheets found in Neuschafer's cell. The sheets
in Johnson's cell were polyester and cotton.
The guards attempted to resuscitate Johnson. He was taken by ambulance to a hospital in
Carson City. Johnson died the next day due to a shortage of oxygen to his brain caused by the
ligature around his neck. A pathologist testified that there was blood in Johnson's spinal cord
indicating that his neck had been snapped back with some force.
At 5:45 p.m. on August 18, 1981, inmate Douglas Robinson gave a note to a correctional
officer, Sonya Turek. Robinson testified that Neuschafer had given him the note with
instructions to give it to the authorities. The note read: To Whom It May Concern, I did
something bad to Johnnie Johnson this morning so come and get me. Sincerely, Jimmy
Neuschafer. At 8:51 p.m. that same day, inmate Barren handed another note to Turek.
Barren testified that he had written a note to Neuschafer asking what had happened to
Johnson. Neuschafer wrote back after ripping off the top of the paper with Barren's question
on it. Barren delivered to Turek what Neuschafer had written: It started by him taking things
first. My [illegible]. . . . And this morning he tried to fk me. I just couldn't let that happen.
So I tried to hang him. Please forgive me. I really feel bad, what I did. A questioned
documents expert testified that both notes were written by Neuschafer. The contents of these
notes were read into evidence without objection.
At 6:45 p.m. on August 18, 1981, Neuschafer was interviewed by Rick Ricards and Ed
Forrest, members of the prison staff investigating Johnson's death. Neuschafer was advised of
his rights under Miranda v. Arizona, 384 U.S. 436 (1966). He requested an attorney. No
attorney was provided, and the interview continued. Neuschafer made an incriminating
statement. The defense successfully moved to have this statement excluded at trial.
Following this interview, Neuschafer was placed in solitary confinement. Between August
18 and August 21, 1981, Neuschafer sent a note to the prison authorities. When questioned
under oath, Neuschafer could not recall whether or not this note had contained a request to
talk to investigators about the murder. Ricards set up an interview between Neuschafer and
Detective Michael Efford of the Carson City Sheriff's Department. Ricards was told that
Neuschafer wanted to talk to the police. Efford had also been told that Neuschafer had asked
to talk to him. Efford was not told that Neuschafer had been previously interviewed and had
requested an attorney.
had requested an attorney. At the interview on August 21, 1981, Efford read Neuschafer his
Miranda rights. Neuschafer indicated that he understood them and proceeded to give another
incriminating statement. This statement was read into the record at trial over objections by
defense counsel.
The jury found Neuschafer guilty of first degree murder. At the penalty hearing, the State
presented evidence that Neuschafer had been convicted in May 1976 of raping and murdering
two teenage girls. Neuschafer was serving the first of two consecutive life sentences without
parole that he received for that conviction when Johnson was killed. After the penalty
hearing, the jury returned a verdict finding three aggravating circumstances: that the murder
was committed by a person under a sentence of imprisonment; that the murder was
committed by a person who was previously convicted of another murder; and that the murder
involved torture, depravity of mind or mutilation of the victim. The jury found no mitigating
circumstances and sentenced Neuschafer to death. Neuschafer appeals from the judgment of
conviction and the death sentence.
[Headnote 1]
Neuschafer suggests that the admission of his August 21, 1981 statement was in violation
of the rule enunciated by the United States Supreme Court in Edwards v. Arizona, 451 U.S.
477 (1981). In Edwards, the Court held that an accused who has asserted his right to consult
counsel during police questioning is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police. 451 U.S. at 484-85. The Court
reversed Edwards' conviction because he had not initiated the second interrogation which
resulted in a statement admitted against him at trial.
[Headnote 2]
Neuschafer contends that the facts of the case at bar reveal a clear violation of the
Edwards rule which requires reversal of his conviction. We do not agree. Neuschafer
requested an attorney during the August 18, 1981 interview with prison investigators. No
attorney was provided between August 18 and August 21, 1981. The record is unclear
whether Neuschafer initiated the communication which led to the August 21, 1981 interview.
Evidence suggests that Neuschafer requested to speak to authorities regarding the Johnson
murder in a note he wrote and gave to prison employees before August 21, 1981. In Oregon v.
Bradshaw, 462 U.S. 1039 (1983), the Supreme Court emphasized that Edwards required a
two-part inquiry into the admissibility of statements obtained after an accused has requested
an attorney. First, the court must determine whether the accused initiated contact with police
and second, whether an accused who had initiated contact also validly waived his right to
counsel.
contact with police and second, whether an accused who had initiated contact also validly
waived his right to counsel. 462 U.S. at 1044. The district court found that the August 21,
1981 statement was voluntary. From our review of the record, we conclude that Neuschafer
knowingly and intelligently waived his right to consult an attorney before speaking to
Detective Efford. At the start of the August 21, 1981 interview, Neuschafer was read his
Miranda rights and he indicated he understood them. Further, at the hearing on the motion to
suppress, Neuschafer testified that he spoke with Detective Efford voluntarily, knowing that
he did not have to make a statement. We hold that the second aspect of the Edwards test was
satisfied.
[Headnote 3]
Assuming, arguendo, that Neuschafer did not initiate the August 21, 1981 interview, we
hold that any error in admitting the August 21, 1981 statement was harmless beyond a
reasonable doubt due to the overwhelming evidence of Neuschafer's guilt. See Allen v. State,
91 Nev. 78, 530 P.2d 1195 (1975). In the unique context of this case, Neuschafer was the
only inmate who had access to the victim at the time Johnson was murdered. Two other
inmates testified they heard Johnson and Neuschafer enter Johnson's cell and Neuschafer
come out alone, after sounds of a struggle were heard. Further, Neuschafer acknowledged his
responsibility for Johnson's death in his two handwritten notes which were admitted into
evidence without objection. In these circumstances, the verdict was free from doubt and any
error was harmless. Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979).
[Headnotes 4, 5]
Neuschafer also contends that his death sentence must be set aside because the third
aggravating factor found by the penalty jury, that the murder involved torture, depravity of
mind or mutilation of the victim, is unconstitutionally vague. See NRS 200.033(8). This
Court has previously rejected this challenge to the constitutionality of NRS 200.033(8).
Deutscher v. State, 95 Nev. at 677.
2
Neuschafer refers this Court to Godfrey v. Georgia, 446
U.S. 420 (1980), and suggests that it stands for the proposition that depravity of mind as an
aggravator is under all circumstances unconstitutionally vague. We do not read Godfrey as so
holding. Rather, the Godfrey Court held that the state supreme court applied an overbroad
interpretation of the phrase outrageously or wantonly vile, horrible or inhuman [involving]
depravity of mind when the Georgia court found that the particular facts of the case, where
the defendant killed his wife and mother-in-law with single shotgun blasts, demonstrated
"depravity of mind."
____________________

2
In Deutscher the penalty jury was instructed on the meaning of torture, depravity of mind and
mutilation. 95 Nev. at 677, 601 P.2d at 412-413. We note that the penalty jury in the case at bar was fully
instructed on the definition of torture and depravity of mind.
ular facts of the case, where the defendant killed his wife and mother-in-law with single
shotgun blasts, demonstrated depravity of mind. 446 U.S. at 432. The Court reversed the
sentence of death which was based upon depravity of mind as the sole aggravator. Id. at
433. The homicides in Godfrey clearly do not come within the parameters of a sufficiently
narrow interpretation of the phrase depravity of mind. The facts of the murder by
strangulation in the case at bar, however, do provide sufficient evidence from which the jury
could find depravity of mind as an aggravating circumstance. We hold that NRS 200.033(8)
is not unconstitutionally vague on its face or as applied in this case.
[Headnote 6]
Finally, Neuschafer contends that the sentence of death is disproportionate and should be
set aside. See NRS 177.055(2)(d).
3
As evidence of the disproportionality, Neuschafer relies
on the disparity between the death sentence he received for strangling Johnnie Johnson and
the life sentences, with or without parole, received by three other defendants who were also
convicted of strangling a single fellow inmate while in prison.
4
Neuschafer's comparison of
his sentence with the sentences of Mercado, Price and Russo ignores the fact that none of the
other men had been previously convicted of murder. In contrast, Neuschafer had been
previously convicted of two counts of first degree murder for the deaths of two girls, aged
thirteen and fifteen, who had been raped and then shot. Further, neither Mercado, Price nor
Russo were serving life sentences when they killed Jackson. Neuschafer was serving the first
of two consecutive life sentences without parole when he murdered Johnnie Johnson.
Considering these circumstances and comparing the facts of this crime and the background
and characteristics of this defendant with similar cases, we conclude that the death sentence
in this case is not disproportionate.
5
See Nevius v. State, 101 Nev. 238, 699 P.2d 1053
{19S5); Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 {19S5); Deutscher v. State, 95 Nev.
669
____________________

3
NRS 177.055(2)(d) was recently amended to abolish the proportionality review requirement. This
amendment became effective June 6, 1985. 1985 Stats. ch. 527 1, at 1597-1598. The prohibition against ex
post facto laws requires that we apply the law as it existed when the crime was committed. See Goldsworthy v.
Hannifin, 86 Nev. 252, 468 P.2d 350 (1970). Therefore, we must conduct a proportionality review of appellant's
sentence.

4
Michael Thomas Mercado received life without parole for the first degree murder of Danny Lee Jackson;
Patrick Russell Price received life with the possibility of parole for Jackson's murder (Mercado v. State, 100
Nev. 535, 688 P.2d 305, (1984)); James Edward Russo also received life with the possibility of parole for
Jackson's murder (Order Dismissing Appeal No. 14501 filed February 1, 1985).

5
We have also conducted the separate arbitrariness review required by NRS 177.055(2)(c), and have
concluded that the death penalty in this case was not imposed under passion, prejudice or any arbitrary factor.
1053 (1985); Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985); Deutscher v. State, 95
Nev. 669.
We have found no merit to appellant's assignments of error and have concluded that the death
penalty in this case is not disproportionate. Accordingly, we affirm the judgment of
conviction and the sentence of death.
Springer, C. J., and Gunderson, Steffen, and Young, JJ., concur.
____________
101 Nev. 338, 338 (1985) McKenna v. State
PATRICK CHARLES McKENNA, Appellant, v.
THE STATE OF NEVADA, Respondent
No. 14564
August 27, 1985 705 P.2d 614
Appeal from conviction of first degree murder and imposition of a death sentence; Eighth
Judicial District Court, Clark County; Robert G. Legakes, Judge.
Defendant was convicted in the district court of first degree murder and he appealed. After
remand, 98 Nev. 38, 639 P.2d 557, the Supreme Court held that: (1) exclusion of two
prospective jurors who expressed reservations on voir dire about death penalty was not error;
(2) response which defendant made by nodding yes and smiling to detective's question
whether he was involved in fatal event was not inadmissible as being ambiguous; (3) refusing
to permit witness to testify in respect to events which took place on night of fatal event in
county jail was not an abuse of discretion since, if testimony was intended to establish an
alibi by placing defendant in another cell after lockdown, it was inadmissible when necessary
written notice was not given to district attorney and, if meant to establish that victim was
belligerent and had broken witness' jaw in a fight, it was cumulative of other testimony; and
(4) sentence of death, based on aggravating circumstances that murder was committed by a
person who was previously convicted of another felony or felonies involving use or a threat
of violence to person of another and that murder involved depravity of mind, was neither
excessive nor disproportionate to penalty imposed in similar cases and was not invalid as
resulting from passion, prejudice, or any other arbitrary factor.
Affirmed.
Morgan Harris, Public Defender, Robert D. Larsen, Deputy, Margaret Lafko, Deputy, and
Rick Ahlswede, Deputy, Las Vegas; Kenneth James McKenna, Reno, for Appellant.
Tufteland, Deputy, and Chris Owens, Deputy, Las Vegas, for Respondent.
1. Jury.
Conduct of defendant in either failing to object or failing to file a timely objection to exclusion of two
prospective jurors who expressed reservations about death penalty served to bolster conclusion that
defendant was under contemporaneous impression that jurors were indeed biased and properly excluded.
2. Jury.
Exclusion of two prospective jurors who expressed reservations on voir dire about death penalty was not
error.
3. Jury.
A presumption does not arise that a death-qualified jury is biased in favor of the prosecution; rather, the
accused has the burden of establishing the nonneutrality of the jury.
4. Jury.
There was no basis for concluding that jury was devoid of persons unalterably opposed to death penalty
and, hence, was biased in favor of prosecution during guilt phase of trial.
5. Jury.
It could not be said that the jury was violative of the defendant's right to a fair trial in absence of evidence
that the jury was an unrepresentative cross section of the community. U.S.C.A.Const. Amends. 6, 14.
6. Criminal Law.
In determining whether a discussion can be properly characterized as a plea negotiation, a court must
consider the accused's subjective expectation of negotiating a plea at the time of discussion, and the
reasonableness of that expectation. NRS 48.125, 48.125, subd. 1.
7. Criminal Law.
Nonverbal response which was made by defendant to detective's question respecting defendant's
involvement in fatal event and which took form of a look, a nod, and a smile could not be characterized as
a plea negotiation and, hence, as privileged in absence of evidence that defendant entertained a reasonable
expectation that detective was authorized to negotiate a plea.
8. Criminal Law.
Response which defendant made by nodding yes and smiling to detective's question whether he was
involved in fatal event was not inadmissible as being ambiguous.
9. Homicide.
Homemade knife, wrapped in fabric ligature, was admissible in homicide prosecution as relevant to
establishing cause of victim's death as due to ligature strangulation.
10. Witnesses.
Evidence of victim's character was a collateral matter and irrelevant without proof that another person
may have committed crime or that defendant acted in self-defense and, hence, it was neither prejudicial nor
an abuse of discretion for trial court to refuse to permit defendant to conduct a recross-examination of
witness on victim's character notwithstanding that State had previously exceeded scope of redirect
examination by asking witness questions about victim's character. NRS 48.015, 48.045, subd. 2.
11. Criminal Law.
Refusing to permit witness to testify in respect to events which took place on night of fatal event in
county jail was not an abuse of discretion since, if testimony was intended to establish an alibi by placing
defendant in another cell after lockdown, it was inadmissible when necessary written notice was not given
to district attorney and, if meant to establish that victim was belligerent and had broken witness' jaw in a
fight, it was cumulative of testimony of other witnesses to effect that victim was prone to become involved
in fights. NRS 174.087.
12. Criminal Law.
Failing to excuse defendant's noncompliance with statute [NRS 174.087] requiring written notice of
alibi testimony to district attorney was not error when testimony was not produced until approximately
three and one-half years after close of prosecution's case and defendant failed to demonstrate that good
cause existed to require production of testimony.
13. Criminal Law.
Excluding during penalty phase an autobiography wherein defendant was said to have related his difficult
childhood, his negative experiences with juvenile corrections authorities, and his ability to contribute to
society as a writer was not prejudicial error when the State conceded defendant's writing ability during
penalty phase and defendant was allowed to present in detail evidence of his childhood difficulties and his
problems with juvenile authorities.
14. Criminal Law.
Allowing testimony upon executive clemency during penalty phase, if improper because procedures in
Petrocelli were not followed, was not a basis for obtaining reversal when it was not likely that a different
verdict would have been reached if those procedures were followed.
15. Criminal Law.
Instruction during penalty phase that jury could impose death sentence only if aggravated circumstances
outweighed mitigating circumstances was consistent with statutory requirements [NRS 200.030, subd.
4(a)] and was not erroneous for failure to further state that jurors were required to determine beyond a
reasonable doubt that death was an appropriate punishment.
16. Homicide.
An instruction in a capital murder case should give jury option of imposing life imprisonment or
imposing death penalty depending upon whether they find that aggravating circumstances outweigh
mitigating circumstances. NRS 200.030, subd. 4(a).
17. Criminal Law.
A sentence of death must be reviewed to determine whether evidence supports finding of an aggravated
circumstance or circumstances, whether death sentence was imposed under influence of passion, prejudice,
or any arbitrary factor, and whether sentence is excessive or disproportionate to penalty imposed in similar
cases considering both crime and defendant. NRS 177.055, subd. 2(d).
18. Homicide.
Sentence of death, based on aggravating circumstances that murder was committed by a person who was
previously convicted of another felony or felonies involving use or a threat of violence to person of another
and that murder involved depravity of mind, was neither excessive nor disproportionate to penalty imposed
in similar cases and was not invalid as resulting from passion, prejudice, or any other arbitrary factor.
NRS 200.030, subd. 4(a).
OPINION
Per Curiam:
On August 30, 1982, Patrick Charles McKenna was convicted of the first degree murder of
a fellow inmate in the Clark County jail, for which he was sentenced to death.
1
Having
reviewed the record on appeal, we conclude that appellant's assignments of error are without
merit and we, therefore, affirm his conviction and sentence.
FACTS
The body of 20 year old Jack Nobles, serving a sentence for burglary, was discovered in
cell 4A2 of the Clark County jail at approximately 7:25 a.m. on January 6, 1979. A medical
expert stated that asphyxia from ligature strangulation was the cause of death. He estimated
that death occurred between the late evening hours of January 5, 1979 and the early morning
hours of January 6, 1979.
January 5, 1979 was a Friday, and as was customary, inmates moved freely about the cell
block until early the next morning, when they were confined to their cells. A majority of the
witnesses testified that lockdown occurred at approximately 2:30 a.m. on January 6, 1979.
Substantial evidence established that after lockdown on January 6, 1979, Nobles was
confined in cell 4A2 with McKenna, David Rossi and David Denson.
Denson testified that when he fell asleep after lockdown, between 2:30 and 3:00 a.m.,
Rossi was in bed, and McKenna and Nobles were playing chess. Denson stated that before
leaving the cell for breakfast, and prior to discovering that Nobles had been murdered,
McKenna asked him to pass a shank, or homemade knife, the handle of which was wrapped
with fabric ligature, to inmate Seebon Harris.
Rossi testified that he witnessed McKenna murdering Nobles. He was awakened by
Nobles climbing into the upper bunk of the bed, and a short time later, he noticed McKenna
coming towards the bunk. Rossi heard McKenna and Nobles arguing in whispers, but could
only make out the word chess. Next, McKenna, using the toilet and the bottom of Rossi's
bunk for footing, positioned himself over Nobles' bed. Rossi testified he then heard a
wheezing sound. Several seconds later, he saw McKenna choking Nobles. Blood was running
down McKenna's arm, and he did not turn Nobles loose until 3 to 5 minutes had elapsed.
Then McKenna put Nobles back onto his (Nobles') bunk and covered him with a blanket.
____________________

1
This was McKenna's second trial on this charge. The first conviction was reversed in McKenna v. State, 98
Nev. 38, 639 P.2d 557 (1982).
The testimony of Michael Dennis Jones was read into the record. Jones, who committed
suicide prior to the trial, was in a nearby cell at the time of Nobles' death, and had testified for
the state at McKenna's preliminary hearing. At about 1:30 a.m. on January 6, 1979, Jones
observed McKenna and Nobles having an argument relative to a sexual act, during which
McKenna shoved Nobles against a bunk bed and choked him. Nobles' knees buckled, and he
dropped to the ground. Jones further testified that while this was taking place, Rossi was in
his bed and Denson was asleep. According to Jones, after Nobles dropped to the ground,
Rossi helped McKenna lift Nobles to his bunk.
Seebon Harris testified that on the morning of January 6, 1979, he received the shank that
had been passed from McKenna to Denson. Upon learning that Nobles had been murdered,
Harris gave it to a guard. Harris also related that McKenna was very upset on January 5,
1979,
2
and that just prior to dinner he struck another inmate without provocation. Harris also
talked with Nobles shortly before dinner on January 5, 1979. Nobles, upset and crying, stated
that McKenna was mad at him, and then said, Why don't them damn guys just leave me
alone.
Detective Burton Levos was the state's last witness. During an interview conducted
January 8, 1979, he asked McKenna, Are you involved in the case of the jail in reference to
Nobles' murder? When the question was completed, McKenna looked at him, nodded yes,
and smiled.
The defense attempted to impeach most of the state's witnesses by showing that they
received lenient treatment after giving information implicating McKenna.
The defense elicited testimony through inmates Ronnie Lee Jones and William Wirsen that
Nobles was inclined to argue.
3
Jones testified that Rossi and Nobles were engaged in a
dispute over a chess game the night before Nobles' body was discovered. Jones also said that
during the argument he heard a noise like someone hitting the cell bars or the floor.
The defense stressed the inconsistency between Rossi's testimony that McKenna had
choked Nobles with his arms and the medical expert's testimony that the cause of death was
asphyxia due to ligature strangulation.
QUALIFICATION OF JURORS IN A
DEATH PENALTY CASE
During voir dire two prospective jurors, Jackson and Rosa, expressed reservations about
the death penalty.
____________________

2
January 5, 1979 was the day McKenna was convicted of one count of robbery, two counts of second degree
kidnapping with a weapon and three counts of sexual assault.

3
Rossi, Denson and Harris testified that Nobles was not a belligerent person.
expressed reservations about the death penalty. The trial judge excluded both for cause.
Appellant contends that exclusion of these potential jurors violated the standards established
in Witherspoon v. Illinois, 391 U.S. 510 (1968), reh'g denied, 393 U.S. 898 (1968), and its
progeny. We disagree.
[Headnote 1]
Initially, we note that appellant did not object to the exclusion of Jackson, and his
objection to the exclusion of Rosa was untimely. Appellant's omission and delay in objecting
are significant under the new interpretation placed on Witherspoon by Adams v. Texas, 448
U.S. 38 (1980) and Wainwright v. Witt,
___
U.S.
___
, 105 S.Ct. 844 (1985). The
Wainwright court stated that appellant's failure to object was an indication of his
contemporaneous impression that the juror was biased and properly excluded.
In Wainwright, id. at 852, the Supreme Court elucidated further on the Witherspoon
standard by stating:
That standard is whether the juror's views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath.
We note that, in addition to dispensing with Witherspoon's reference to automatic
decisionmaking, this standard likewise does not require that a juror's bias be proved
with unmistakable clarity. [Footnote omitted.]
The Supreme Court also emphasized the discretionary role of the trial judge when it stated:
Despite this lack of clarity in the printed record, however, there will be situations where
the trial judge is left with the definite impression that a prospective juror would be
unable to faithfully and impartially apply the law. For reasons that will be developed
more fully infra, this is why deference must be paid to the trial judge who sees and
hears the juror.
Id. at 852-853.
[Headnote 2]
Accordingly, we conclude that the trial judge did not err in excluding prospective jurors
Rosa and Jackson.
McKenna also contends that the jury was devoid of persons unalterably opposed to the
death penalty and was therefore biased in favor of the prosecution during the guilt phase of
the trial. Additionally, appellant contends such a jury violated his right to a fair trial because
the jury was an unrepresentative cross-section of the community.
[Headnotes 3-5]
We note initially that this issue was not raised in the trial court by either a timely objection
or a request for an evidentiary hearing.
hearing. Furthermore, under Witherspoon, we are not required to presume that a
death-qualified jury is biased in favor of the prosecution. Rather, the accused has the burden
of establishing the non-neutrality of the jury. Witherspoon, 391 U.S. at 520, n. 18. See also
Hovey v. Superior Court of Alameda Cty., 616 P.2d 1301 (Cal. 1980) (rejecting appellants'
non-neutrality studies because of their failure to take into account that California excludes
persons who would automatically vote for the death penalty, as well as those who would
automatically vote against it); Rowan v. Owens, 752 F.2d 1186, 1190 (7th Cir. 1984) (noting
that the crucial question is whether a death-qualified jury is likely to convict innocent
people); Mattheson v. King, 751 F.2d 1432, 1442 (5th Cir. 1985) (holding a death-qualified
jury does not deprive a defendant of a fair and impartial jury even if, on the average, it would
favor the prosecution). Because McKenna failed to prove the non-neutrality of the jury which
convicted and sentenced him, we reject this assignment of error.
RULINGS ON EVIDENCE AND TESTIMONY
Detective Burton Levos testified concerning appellant's nonverbal response to Levos'
question: Are you involved in the case of the jail in reference to Nobles' murder?
McKenna's response, a look, a nod yes, and a smile, was made at an interview conducted on
January 8, 1979.
4

[Headnote 6]
McKenna first contends that his nonverbal response was privileged as a plea negotiation
under NRS 48.125.
5
In determining whether a discussion can be properly characterized as a
plea negotiation, we must consider the accused's subjective expectation of negotiating a plea
at the time of discussion, and the reasonableness of that expectation. See U.S. v. O'Brien,
618 F.2d 1234, 1240-1241 (7th Cir. 1980), cert. denied, 449 U.S. 858 (1980), citing U.S. v.
Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978).
McKenna was informed by Levos that he and Detective Samolovitch lacked authority to
make deals, but that he would relay any information to the District Attorney's office. He also
testified that he asked McKenna to read the Miranda Person Arrested Rights Card" out loud
at the beginning of the interview and McKenna indicated that he understood its contents.
____________________

4
Appellant, when first interviewed on January 6, 1979, refused to say anything. The January 8, 1979
interview was prompted by a letter McKenna wrote to Detective Samolovitch, stating his desire to make a deal
by giving them information about unsolved crimes.

5
NRS 48.125(1) reads:
1. Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or
any other crime is not admissible in a criminal proceeding involving the person who made the plea or
offer.
Rights Card out loud at the beginning of the interview and McKenna indicated that he
understood its contents.
[Headnote 7]
The facts clearly show that McKenna could not have entertained a reasonable expectation
that Levos and Samolovitch were authorized to negotiate a plea. Blackwell v. State, 663 P.2d
12, 15 (Okl.Crim.App. 1983). Therefore, we reject this assignment of error.
Next, appellant now contends that his response was ambiguous and therefore inadmissible
under our holding in Harrison v. State, 96 Nev. 347, 608 P.2d 1107 (1980). No objection was
made at trial to the admission of the nonverbal response on the ground it was ambiguous.
[Headnote 8]
In Harrison we stated: If an incriminating statement is heard and understood by an
accused, and his response justifies an inference that he agreed or adopted the admission, then
evidence of the statement is admissible at trial. Id. at 349. See also LeGrenade v. Gordon,
299 S.E.2d 809, 814 (N.C.App. 1983). McKenna responded to Levos' question whether he
was involved in the Nobles murder by nodding yes and smiling. Appellant's nonverbal
response was not ambiguous and was properly admitted into evidence.
[Headnote 9]
The homemade knife, wrapped in fabric ligature, which McKenna sought to dispose of on
the morning of January 6, 1979, was admitted into evidence. Appellant contends that it was
error to permit introduction of the knife or a picture of it because it was prejudicial and
irrelevant. We disagree.
Appellant has failed to show that the trial court erred in determining the knife's probative
value outweighed its prejudicial impact. Lucas v. State, 96 Nev. 428, 431-432, 610 P.2d 727,
730 (1980). The knife, partially wrapped in fabric ligature, was relevant where the cause of
Nobles' death was due to ligature strangulation.
6
The evidence also tended to prove
appellant's knowledge that a crime had been committed.
7
[Headnote 10]
[Headnote 10]
____________________

6
NRS 48.015 reads:
As used in this chapter, relevant evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more or less probable than
it would be without the evidence.

7
NRS 48.045(2) reads:
2. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in
order to show that he acted in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.
[Headnote 10]
On redirect examination, respondent asked Rossi questions about Nobles' character which
exceeded the scope of the cross-examination. Appellant argues that the trial court denied him
a fair trial by refusing his counsel the right to recross-examine with regard thereto. We hold
that the trial court did not abuse its discretion in refusing to permit recross-examination on
Nobles' character which was a collateral
8
matter. See Farmer v. State, 507 P.2d 1303, 1307
(Okl.Crim.App. 1973). Absent a showing of prejudice, we reject appellant's contention that
he was thereby denied a fair trial.
Six days before trial, appellant filed a motion seeking production of Frank DePalma and
five other witnesses. McKenna's trial began on August 16, 1982, but witnesses did not present
testimony until August 20, 1982. The trial judge denied McKenna's motion for the production
of DePalma on August 24, 1982, citing noncompliance with NRS 174.087.
9
Appellant's
offer of proof related that DePalma would testify that Nobles was belligerent and had broken
his (DePalma's) jaw in a fight, and that on the night of the murder, McKenna was locked in a
cell where a poker game was taking place, not cell 4A2 where Nobles body was discovered.
[Headnote 11]
McKenna argues that because DePalma's testimony was not alibi evidence, the judge erred
in not allowing DePalma to testify.
10
If DePalma's testimony was not to establish an alibi, it
was cumulative because both Ronnie Lee Jones and Wirsen had testified that Nobles was
prone to become involved in fights.
____________________

8
Nobles' character would have been relevant with proof that another person may have committed the crime,
People in Interest of R.L., 660 P.2d 26, 28 (Colo.App. 1983); Dorsey v. State, 96 Nev. 951, 954, 620 P.2d 1261,
1263 (1961), or if appellant contended he killed in self-defense.

9
NRS 174.087, in pertinent part, reads:
1. A defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not
less than 10 days before trial or at such other time as the court may direct, file and serve upon the district
attorney a written notice of his intention to claim such alibi, which notice shall contain specific
information as to the place at which the defendant claims to have been at the time of the alleged offense
and, as particularly as are known to defendant or his attorney, the names and addresses of the witnesses
by whom he proposes to establish such alibi.
. . .
4. If a defendant fails to file and serve a copy of such notice as herein required, the court may
exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of
the defendant himself. If such notice is given by a defendant, the court may exclude the testimony of any
witness offered by the defendant for the purpose of proving an alibi if the name and address of such
witness, as particularly as is known to the defendant or his attorney, is not stated in such notice.
fied that Nobles was prone to become involved in fights. However, it appears from the record
that the major thrust of the testimony was to place McKenna in another cell after lockdown,
and therefore it was alibi evidence subject to NRS 174.087. In either event, we conclude the
trial court did not abuse its discretion in refusing to permit DePalma to testify.
[Headnote 12]
McKenna next contends that if DePalma was an alibi witness, the trial judge erred in not
excusing appellant's noncompliance with NRS 174.087. If good cause is shown, a court
may exercise its discretion to admit alibi testimony in spite of noncompliance with NRS
174.087. Founts v. State, 87 Nev. 165, 483 P.2d 654 (1971). The proffered testimony in this
case appeared for the first time approximately three and one-half years after the murder and
following the close of the prosecution's case. McKenna failed to demonstrate, either at trial or
on appeal, that good cause existed for the belated production of DePalma. We conclude,
therefore, that the exclusion of this testimony was not error. See Reese v. State, 95 Nev. 419,
596 P.2d 212 (1979); Founts v. State, supra.
PENALTY PHASE
Appellant moved to reopen his case during the penalty phase, to introduce the first six
chapters of his autobiography. He contended the autobiography was relevant in that it
contained evidence of (1) his difficult childhood, (2) his negative experiences with juvenile
corrections authorities, and (3) his ability to contribute to society as a writer. The trial judge
refused to admit the autobiography into evidence. Although in a capital case the court should
interpret mitigating evidence broadly,
11
we are not persuaded that the trial judge erred in
excluding McKenna's autobiography.
____________________

10
McKenna's argument is premised upon the fact that the medical expert placed the time of death between
the late evening hours of January 5, 1979 and the early morning hours of January 6, 1979; that inmates freely
moved about the cell-block before lockdown; and that even if a prisoner was locked in the wrong cell (DePalma
believed appellant was locked in the cell where the poker game was being played) he could have moved
afterwards; therefore, McKenna had an opportunity before and after lockdown to commit the offense.

11
Generally, rules governing the admissibility of evidence at trial do not apply at a sentencing hearing. State
v. Conn, 669 P.2d 581, 582-583 (Ariz. 1983). In Bishop v. State, 95 Nev. 511, 516, 597 P.2d 273, 276 (1979)
this court noted: [A] defendant must be given the opportunity to present evidence of whatever mitigating
circumstances may be relevant to either the particular offender or the particular offense before a death penalty
can be imposed. . . . NRS 175.552, in pertinent part, states that during a penalty hearing evidence may be
presented concerning aggravating and mitigating
[Headnote 13]
The state conceded appellant's writing ability and several witnesses testified that McKenna
wrote extensively. McKenna's childhood difficulties and his problems with juvenile
authorities were also presented in detail. Thus, the substance of matters contained in the
autobiography was brought to the attention of the jury. Accordingly, we conclude that
appellant has not demonstrated that excluding his autobiography was prejudicial error. State
v. Boyd, 319 S.E.2d 189, 198 (N.C. 1984), cert. denied,
___
U.S.
___
, 105 S.Ct. 2052
(1985).
Furthermore, we find no abuse of discretion in the trial judge's refusal to allow appellant to
reopen his case. Williams v. State, 91 Nev. 533, 535, 539 P.2d 461, 462-463 (1975); Accord
State v. Boodry, 394 P.2d 196, 198-199 (Ariz. 1964), cert denied, 379 U.S. 949 (1964).
McKenna next contends that the trial court erred in allowing testimony upon executive
clemency and instructing the jury that a sentence of life imprisonment without the possibility
of parole could be commuted to life imprisonment with the possibility of parole.
Detailed testimony on the process of executive clemency has never been favored by this
court. See Summers v. State, 86 Nev. 210, 467 P.2d 98 (1970); Bean v. State, 81 Nev. 25, 398
P.2d 251 (1965), cert. denied, 384 U.S. 1012 (1966). We now specifically disapprove its use
in any form.
12
[Headnote 14]
[Headnote 14]
____________________
circumstances relative to the offense, defendant or victim and on any other matter which the court deems
relevant to the sentence, whether or not the evidence is ordinarily admissible. NRS 200.035 in relevant part
states: 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:
7. Any other mitigating circumstance.

12
Responding to a question about the frequency of commutations by the State Board of Pardons
Commissioners, Mr. Jeffers, a Chief Deputy of the Clark County District Attorney's office, stated: Based on my
experience it happens more times than it doesn't. Appellant's objection on grounds of relevance was overruled.
Appellant chose not to cross-examine on this point.
Our concern is that the witness's ambiguous statement could have been misperceived by the jury. It is unclear
just what was meant by based on my experience. His conclusion would have been misleading if intended to
represent that the majority of petitions for commutation are granted. Appellant neglected to cross-examine the
witness about his personal experiences, which perhaps would have supported his conclusion that it happens
more times than it doesn't.
In holding that appellant has failed to prove that the statement was sufficiently prejudicial to warrant reversal,
we note with particularity that: (1) the testimony was ambiguous; (2) the only objection by appellant was on the
ground of relevance; (3) the evidence of appellant's guilt was overwhelming; and (4) the jury found no factors
mitigating against imposition of the death penalty.
[Headnote 14]
This court's recent decision in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503, 510 (1985),
recites how district courts should instruct jurors on the issue of executive clemency, if a
request for instruction on the question is tendered. However, Petrocelli was decided after the
trial of the instant case, and we do not believe, in this case, that a different verdict would have
been reached if the procedures set forth in Petrocelli had been followed in the instant case.
[Headnote 15]
The jury was instructed that it could impose the death sentence only if aggravating
circumstances outweighed mitigating circumstances; otherwise, the penalty imposed should
be life imprisonment. Although appellant concedes that this instruction is consistent with
NRS 200.030(4)(a),
13
he contends that the court was under a duty to further instruct the
jurors that they had to determine beyond a reasonable doubt that death was the appropriate
punishment. We disagree.
[Headnote 16]
First, the instruction given in the case at bar was permissive
14
and not mandatory. It gave
the jury the option of imposing the death penalty if they found that aggravating circumstances
outweighed mitigating circumstances. Secondly, Nevada's death penalty procedure has been
recently upheld by this court. In Ybarra v. State, 100 Nev. 167, 176, 679 P.2d 797, 803
(1984), cert. denied,
___
U.S.
___
, 105 S.Ct. 1372 (1985) we stated: Since our procedure
for weighing aggravating and mitigating circumstances provides the sentencer with adequate
information and guidance and the accused with sufficient guarantees that the penalty of death
will not be imposed arbitrarily and capriciously, the challenged statute passes constitutional
muster.
Lastly, as the Ninth Circuit Court stated in Harris v. Pulley, 692 F.2d 1189, 1195 (9th Cir.
1982), rev'd on other grounds, 465 U.S. 37 (1984): The United States Supreme Court has
never stated that a beyond-a-reasonable-doubt standard is required when determining whether
a death penalty should be imposed.
____________________

13
NRS 200.030(4)(a) provides:
Every person convicted of murder of the first degree shall be punished:
(a) By death, only if one or more aggravating circumstances are found and any mitigating
circumstance or circumstances which are found do not outweigh the aggravating circumstance or
circumstances.

14
The instruction read:
The jury may impose a sentence of death only if it finds at least one aggravating circumstance and
further finds that there are no mitigating circumstances sufficient to outweigh the aggravating
circumstance or circumstances found.
REVIEW OF DEATH PENALTY
[Headnote 17]
NRS 117.055(2)(d) requires that we review a death sentence to determine (1) whether
evidence supports the finding of an aggravating circumstance or circumstances; (2) whether
the death sentence was imposed under the influence of passion, prejudice, or an arbitrary
factor; (3) whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases in the state, considering both the crime and the defendant.
15

The jury found two aggravating circumstances: (1) the murder was committed by a person
who was previously convicted of another felony or felonies involving the use or threat of
violence to the person of another, and (2) the murder involved depravity of mind. The jury
further found there were no mitigating circumstances.
A review of the record indicates that the appellant is no stranger to the criminal justice
system. From the age of 13 years he had significant involvement with juvenile authorities
resulting in his detention in facilities in both Clark and Elko Counties. In 1964, when he was
17 years old, he was sentenced to the Nevada State Prison for a term of 5 to 15 years for
crimes of violence. This pattern continued after incarceration. On October 14, 1966, he
escaped from the state prison and was picked up shortly thereafter. On January 30, 1967, he
was involved in another escape attempt in which two officers were taken hostage. On August
22, 1973, appellant jammed an eleven inch homemade knife into the stomach of a
correctional officer, and with other inmates caused significant damage to the facility on that
occasion.
He was paroled April 26, 1976, and a short time later picked up for parole violation,
allegedly having committed crimes in Washoe County for which he apparently was never
tried. On release from the state prison, March 19, 1978, his career of crime and violence
continued unabated. A crime spree in July 1978 resulted in a conviction of one count of
robbery, two counts of second degree kidnapping with a weapon and three counts of sexual
assault. Between August 25 and August 27, 1979, he and other inmates took over the Las
Vegas annex of the Clark County jail, for which he was convicted of attempted escape with
he use of a weapon, possession of a firearm by an ex-felon, and two counts of robbery
with a weapon.
____________________

15
Hannifin, 86 Nev. 252, 468 P.2d 350 (1970). In Goldsworthy we held that an act amending parole eligibility
could not be applied to the detriment of a defendant whose crime was committed before the amendment took
effect. Id. at 256-57. Because Nobles was murdered well before June 6, 1985, we must conduct a proportionality
review of appellant's sentence.
jail, for which he was convicted of attempted escape with he use of a weapon, possession of a
firearm by an ex-felon, and two counts of robbery with a weapon. In sum the record indicates,
starting in 1964, thirteen felonies accompanied by violence or threat of violence to ten
persons, for which he pled guilty or was convicted.
The circumstances surrounding the murder by ligature strangulation support the jury's
finding that the murder involved depravity of mind. It can be inferred that McKenna was
harassing and brutalizing Nobles, resulting in the death of a 20 year old inmate for no
apparent reason.
[Headnote 18]
From our review of the record, we conclude: (1) that the evidence supports the jury's
findings of aggravating circumstances; (2) that the sentence was not imposed under the
influence of passion, prejudice, or any arbitrary factor; (3) that the death sentence imposed in
this case is not excessive or disproportionate to the penalty imposed in similar cases within
the state, considering both the crime and the defendant. See Neuschafer v. State, 101 Nev.
331, 705 P.2d 609 (1985); Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985); Bishop v.
State, 95 Nev. 511, 597 P.2d 273 (1979); Deutscher v. State, 95 Nev. 669, 601 P.2d 407
(1979).
Accordingly, we affirm McKenna's conviction and sentence.
____________
101 Nev. 351, 351 (1985) Bauer v. State, Dep't Mtr. Vehicles
KENNETH LEROY BAUER, Appellant, v. STATE OF NEVADA, DEPARTMENT OF
MOTOR VEHICLES, Respondent.
No. 15572
August 27, 1985 705 P.2d 623
Appeal from district court's order affirming the suspension of appellant's driver's license;
Second Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Appeal was taken from an order of the district court affirming suspension of individual's
driver's license. The Supreme Court held that regulation defining as an habitual violator any
individual who had been convicted of 12 or more traffic violations in a four-year period of
time preceding the latest conviction was not a basis for suspending driver's license of
individual convicted of 15 moving traffic violations within a four-year period when the
demerit point system set forth in statute was the only standard the legislature intended the
Department of Motor Vehicles to use in determining habitual status suspensions.
legislature intended the Department of Motor Vehicles to use in determining habitual status
suspensions.
Reversed.
Virgil D. Dutt, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Brian Randall Hutchins, Deputy Attorney
General, Carson City; Steven F. Stucker, Deputy, Carson City, for Respondent.
1. Automobiles.
The demerit point system set up by statute [NRS 483.470, subds. 1(c), (d), 3-7] for identifying
habitually reckless or negligent drivers or habitual or frequent violators of traffic regulations is the only
standard the legislature intended the Department of Motor Vehicles to use in determining habitual status
suspensions of licenses for such drivers and violators.
2. Automobiles.
Regulation defining as an habitual violator any individual who had been convicted of 12 or more traffic
violations in a four-year period of time preceding the latest conviction was not a basis for suspending
driver's license of individual convicted of 15 moving traffic violations within a four-year period when the
demerit point system set forth in statute [NRS 483.470, subds. 1(c), (d), 3-7] was the only standard the
legislature intended the Department of Motor Vehicles to use in determining habitual status suspensions.
OPINION
Per Curiam:
The respondent Department of Motor Vehicles (the Department) suspended the driver's
license of appellant Kenneth L. Bauer for a period of one year. The suspension was
predicated upon the Department's determination that Bauer was an habitual violator of traffic
laws, as defined by a regulation adopted on April 29, 1982. The district court affirmed the
Department's suspension, and this appeal ensued. For reasons hereafter discussed, we reverse
the district court, and we direct the reinstatement of Bauer's license.
THE FACTS
The Nevada Legislature established a demerit point system in NRS 483.470(3-7)
1
for the
purpose of identifying habitually reckless or negligent drivers or habitual or frequent
violators of traffic regulations."
____________________

1
NRS 483.470(3) through (7) are as follows:
3. The department shall establish a uniform system of demerit points for various traffic violations
occurring within this state affecting any holder of a driver's license issued by the department.
4. The system must be a running system of demerits covering a period of 12 months next preceding
any date on which a licensee may be
reckless or negligent drivers or habitual or frequent violators of traffic regulations. Nevada
State Dep't Motor Vehicles v. Turner, 89 Nev. 514, 561, 515 P.2d 1265, 1266 (1973). The
suspension of drivers' licenses for such drivers and violators had already been authorized.
NRS 483.470(1) (c)-(d).
From 1941 until early 1982, the Department never relied upon NRS 483.470(1) (c)-(d) as a
basis upon which to suspend drivers' licenses. In early 1982, the Department proposed
regulations to provide for the suspension of the licenses of habitual violators. These
regulations were never adopted by the Department even though a number of suspensions were
made. To correct this problem, the Department rescinded the suspensions it had ordered
under the disapproved regulations, and promulgated a new regulation which was adopted by
the Department and made effective on April 29, 1982.
2
The regulation defines as an
habitual violator any individual who has been convicted of twelve or more traffic
violations in a four-year period of time preceding the latest conviction.
____________________
called before the department to show cause as to why his driver's license should not be suspended.
5. The system must be uniform in its operation and the department shall set up a system of demerits
for each traffic violation, except as provided in subsection 6, depending upon the gravity of the violation,
on a scale of one demerit point for a minor violation of any traffic law to eight demerit points for an
extremely serious violation of the law governing traffic violations. If a conviction of two or more traffic
violations committed on a single occasion is obtained, points must be assessed for one offense, and if
point values differ, points must be assessed for the offense having the greater point value. Details of the
violation must be submitted to the department by the court where the conviction is obtained. The
department may provide for a graduated system of demerits within each category of violations according
to the extent to which the traffic law was violated.
6. A violation of the national maximum speed limit specified in 23 U.S.C. 154 but not exceeding
70 miles per hour must not be charged against a driver in the system of demerits established under this
section if the violation does not violate any other speed limit imposed by or pursuant to chapter 484 of
NRS.
7. When any driver has accumulated three or more demerit points, but less than 12, the department
shall notify him of this fact. If, after the department mails this notice, the driver presents proof to the
department that he has successfully completed a traffic safety school course, approved by the department,
for the number of hours prescribed by the course, with the approval of the department as constituting a
course of instruction, the department shall cancel three demerit points from his driving record. If the
driver accumulates 12 or more demerit points before completing the traffic safety school, he will not be
entitled to have demerit points canceled upon completion of the course, but must have his license
suspended. A person may be allowed to attend only once in 12 months for the purpose of reducing his
demerit points. The three demerit points may only be canceled from a driver's record during the 12-month
period immediately following the driver's successful completion of the traffic safety school.

2
Department of Motor Vehicles Regulations relating to Habitual Violators or Habitually Reckless and
Negligent Drivers of Motor Vehicles provides, in pertinent part:
The regulation defines as an habitual violator any individual who has been convicted of
twelve or more traffic violations in a four-year period of time preceding the latest conviction.
The determination of habitual violator status can be based on the Department's records or
other sufficient evidence. NRS 483.470(1).
On June 28, 1982, the Department notified Bauer that he came within the definition of an
habitual violator of traffic laws, and that his driving privilege was being suspended for a
one-year period. The suspension was based on NRS 483.470.
Bauer requested a hearing which was held on July 22, 1982, before a Department of Motor
Vehicles Hearing Officer. At the hearing, evidence was introduced, without objection, that
Bauer had been convicted of fifteen moving traffic violations within a four-year period
between August 27, 1978, and May 25, 1982. Thus, because his record placed him within the
Department's definition of an habitual violator, the hearing officer upheld the suspension of
Bauer's license.
Bauer filed a petition for review of the suspension in the Second Judicial District Court.
____________________
SECTION II. Habitually reckless or negligent driver.
1. The department will consider a person an habitually reckless or negligent driver of a motor vehicle
when he has been convicted of six convictions of major offenses within a 4-year period preceding the
most recent conviction.
2. In determining whether a person is an habitually reckless or negligent driver of a motor vehicle, a
conviction will only be counted one time and will not be used for a subsequent suspension as an
habitually reckless or negligent driver. A driver must be convicted at least once after the effective date of
this regulation before his license may be suspended.
3. If the department determines that a driver is an habitually reckless or negligent driver, his driver's
license will be suspended for 1 year.
4. As used in this section a major offense means an offense assigned a point value of four through
eight demerits under the system of demerit points or those offenses for which a driver's license is
suspended or revoked, excluding suspensions under the point system and suspensions of licenses of
habitual violators of the traffic laws and habitually reckless or negligent drivers.
SECTION III. Habitual violator of traffic laws.
1. The department will consider a person an habitual violator of the traffic laws when he has been
convicted of 12 or more moving violations in any state or states within a 4-year period preceding the date
of the most recent conviction. If two or more violations are committed on a single occasion, only one
conviction will be counted for the purposes of this regulation. In determining whether a driver is an
habitual violator of traffic laws, a conviction will only be counted one time and will not be used for
subsequent suspension as an habitual violator of traffic laws. A driver must be convicted at least once
after the effective date of this regulation before his license may be suspended.
2. If the department determines that a driver is an habitual violator of the traffic laws, his driver's
license will be suspended for 1 year.
Second Judicial District Court. The district court determined that the legislature clearly
had given the Department the necessary authority to suspend Bauer's driver's license.
Therefore, the district court affirmed the one-year suspension of Bauer's license.
DISCUSSION
Appellant challenges the departmental regulation as contrary to the intent of the legislature
in mandating a uniform demerit point system and beyond the authority of the Department to
promulgate. He argues that the demerit point system was established for the purpose of
identifying habitually reckless or negligent drivers or habitual or frequent violators of traffic
regulations, and he bases his argument on statements of this court in Nevada State Dep't
Motor Vehicles v. Turner, 89 Nev. 514, 515 P.2d 1265 (1973). He directs our attention to the
fact that when the legislature amended NRS 483 in 1963 by passing Assembly Bill 207,
which directed the Department to establish a uniform system of demerit points, the legislature
mandated that the system be uniform in its operation. The legislature set out in detail how
the demerit point system would operate, stating that when any licensee accumulates 12 or
more demerit points the department shall suspend his license until the total of his demerits
had dropped below 12 demerits in the next preceding 12 months. NRS 483.470(9).
Bauer contends that the legislature, in mandating the demerit point system, intended to
provide the standards and guidelines for the determination of when an individual is an
habitual violator of traffic laws. He further contends that the Department is without authority
to vary by regulation the legislatively established standards. With both of his contentions, we
must agree.
Our perception of the legislative intent behind the adoption of the demerit point system in
1963, as stated in Nevada State Dep't Motor Vehicles v. Turner, supra, remains our
perception today.
3
The legislature intended that the demerit point system be the method by
which NRS 483.470(1)(c) and (d) be determined. Because the subsections themselves contain
no standard by which to calculate or define the term habitual, the legislature intended the
Department to use the uniform demerit point system to do so.
____________________

3
We adhere to the court's language in Nevada State Dep't Motor Vehicles v. Turner, indicating the legislative
intent in adding the demerit system. Additionally, we note that the situation before us is virtually identical to that
in Burris v. Karns, 14 Wis.2d 431, 111 N.W.2d 509 (1961), in which the Wisconsin Supreme Court, interpreted
WSA 343.32(2) (the Wisconsin counterpart to NRS 483.470), holding that the unconditional power of the
Department of Motor Vehicles to revoke a license for habitual, reckless or negligent operation or repeated
violations did not survive the addition to the statute of a demerit system. The applicability of the Burris court's
reasoning to the case at hand is striking.
[Headnote 1, 2]
Such a conclusion follows from a close reading of NRS 483.470, giving effect to all parts
of the statute and all language used. Inasmuch as the legislature spelled out how the demerit
point system was to operate, enumerating various scenarios leading to suspension, it must be
presumed that the demerit point system was the only standard the legislature intended the
Department to use in determining habitual status suspensions.
Accordingly, the regulations exceed the Department's authority. The district court's order
is reversed, and the Department is directed to reinstate Bauer's license.
____________
101 Nev. 356, 356 (1985) Jacobs v. State
BILLY RAY JACOBS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 15295
August 27, 1985 705 P.2d 130
Appeal from conviction of first degree murder and dangerous weapon enhancement
resulting in two life sentences with the possibility of parole, First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Supreme Court held that: (1) trial court committed reversible error by admitting prior
statements of defendant's five year old son to rebut defendant's attempt to impeach the boy's
testimony, and (2) prosecutor improperly asked jurors to put themselves in place of victim at
time of the shooting.
Aebi, FitzSimmons & Lambrose, Carson City, for Appellant.
Brian McKay, Attorney General, William A. Maddox, District Attorney, Charles P.
Cockerill, Deputy, Carson City, for Respondent.
1. Witnesses.
Prior statements of defendant's five year old son were inadmissible, in prosecution for murder of
defendant's wife, to rebut defendant's attempt to impeach the boy's testimony, in that the boy had returned
to the home of his maternal grandmother in Arkansas and was thus not available for cross-examination, the
statements exceeded in scope the testimony elicited during direct examination, and the testimony was
manifestly prejudicial to defendant; furthermore, admission of the statements was reversible error. NRS
51.035, subds. 2, 2(b).
2. Criminal Law.
Prosecutor in murder prosecution improperly asked jurors to put themselves in place of victim at time of
the shooting when he stated in final argument that he would not tell jurors to put themselves in victim's
position looking down the barrels of this shotgun, because that would be improper.
OPINION
Per Curiam:
Appellant was convicted by a jury of first degree murder of his ex-wife, Ethel Jean Jacobs,
with the use of a deadly weapon, and sentenced to two consecutive life terms with the
possibility of parole. This appeal followed.
Appellant has raised numerous issues on appeal. However, because we conclude (1) the
trial court committed reversible error by admitting prior statements of appellant's five year old
son, Larry, and (2) the prosecutor improperly asked the jurors to put themselves in the place
of the victim at the time of the shooting, we limit our opinion accordingly.
FACTS
In 1973, shortly after his release from prison, Billy and Ethel settled in Carson City where
he obtained a job with Flammer Chevrolet. They had a son, Larry; appellant's life revolved
around his work and family.
In November 1982, Billy had been told by Ethel that a divorce was necessary to protect
their home and possessions from creditors. Because appellant was illiterate, Ethel contacted a
lawyer and made all of the arrangements for the divorce.
After the divorce, Ethel told Billy to move out of her house. He reluctantly complied,
but continued to visit Ethel and Larry, hoping for a reconciliation. After a visitation on
Christmas 1982, Billy was optimistic that his relationship with Ethel was improving.
On January 2, 1983 Billy picked Larry up in the morning and they spent the day talking to
friends, eating lunch and playing in the park.
After dropping Larry off at Ethel's house, Billy consumed several drinks and drove around
aimlessly. Depressed, he returned to Ethel's house to discuss reconciliation. He pleaded with
her to take him back but she refused, telling him that she had a new boyfriend. She then
demanded that he leave.
Appellant testified that when Ethel said this, he grabbed a shotgun located in an adjoining
room and shot her. Larry, then 5 years old, stated that appellant was carrying the shotgun,
which he was going to give him, when he came to the house. The boy further stated the gun
was not loaded until just before it was fired.
After the shooting, appellant took Larry to the apartment of his friend, Earl Fairman, and
told Earl to call the police. When they arrived, appellant went quietly with them.
PRIOR STATEMENTS
Appellant contends that the trial court erred in admitting certain testimony regarding his
son's prior statements. Larry was not available for cross-examination, as required by statute,
and the statements contained prejudicial evidence relating to matters not brought out during
direct examination of Larry.
Prior consistent statements of a witness are generally considered to be inadmissible
hearsay. However, under NRS 51.035(2)(b) they are admissible to rehabilitate a witness
charged with recent fabrication or having been subjected to improper influence.
1

[Headnote 1]
Appellant's counsel attempted to impeach the boy's testimony by suggesting that Larry's
maternal grandmother had improperly influenced him. To rebut this charge the state
introduced Larry's prior statements through testimony of Detective Mike Efford and Janice
Carruthers.
2
When Efford and Carruthers testified concerning prior statements, Larry was
not present for cross-examination, having returned to the home of his maternal grandmother
in Arkansas. Clearly, he was not available for cross-examination as mandated by NRS
51.035(2).
Larry's prior statements were also inadmissible to the extent they exceeded in scope the
testimony elicited during direct examination.
3
While it would have been proper for Efford
and Carruthers to have testified as to prior consistent statements, had Larry been present
for cross-examination, this did not open wide the evidentiary door for extraneous
matters.
____________________

1
51.035 Hearsay defined. Hearsay means a statement offered in evidence to prove the truth of the matter
asserted unless:
. . .
2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement,
and the statement is:
. . .
(b) Consistent with his testimony and offered to rebut an express or implied charge against him of recent
fabrication or improper influence or motive;

2
Larry had been interviewed by Efford on January 2 and 3, 1983. Carruthers was Larry's foster parent from
January 3, 1983 to January 7, 1983.

3
A sampling of the extraneous material elicited during the state's attempt to rehabilitate includes the
following: (1) that Billy shot his ex-wife because he was upset that she was seeing another man, (2) that after the
shooting, Larry was yelling and crying and that Billy got a little mean with him, (3) that after Ethel was shot,
Larry went over and shook her and pleaded, wake up, wake up, and (4) that when Larry was staying with
Janice Carruthers, he repeatedly said his mother was in a graveyard and on one occasion he said that he wanted
to see his mother's grave so that he could put some flowers on it.
While it would have been proper for Efford and Carruthers to have testified as to prior
consistent statements, had Larry been present for cross-examination, this did not open wide
the evidentiary door for extraneous matters. U.S. v. Dennis, 625 F.2d 782, 797 (8th Cir.
1980); State v. Haggard, 619 S.W.2d 44, 48 (Mo. 1981) vacated on other grounds 459 U.S.
1192 (1983). The evidence improperly presented to the jury in this case was manifestly
prejudicial to appellant.
FINAL ARGUMENT
[Headnote 2]
Lastly, we express our disapproval of comments made by the prosecuting attorney in final
argument when he said:
He came in that house to load that shotgun and blow her away. It is that simple, and
it's hard to talk about it in crude terms like that, ladies and gentlemen, and I will not tell
you to put yourselves in Mrs. Jacobs' position looking down the barrels of this shotgun,
because that would be improper.
In McGuire v. State, 100 Nev. 153, 158, 677 P.2d 1060 (1984) we noted that arguments
asking jurors to place themselves in the place of the victim or a member of the victim's family
are exceedingly improper in and of themselves,. . . In the instant case the prosecutor's
resourceful disavowal after the fact of any intention to make an improper argument did not
remedy the transgression.
Appellant did not deny that he shot his wife. The jury faced a difficult task in determining
his mental state at the time. Evidence that appellant had the requisite state of mind for first
degree murder was not overwhelming. Because of prejudicial material erroneously admitted
under the prior statement doctrine and improper comments by the prosecutor in closing
argument, we are persuaded a new trial is warranted. Accordingly, we reverse and remand for
a new trial.
____________
101 Nev. 360, 360 (1985) Sechrest v. State
RICKY DAVID SECHREST, Appellant, v. THE STATE
No. 15320
August 27, 1985 705 P.2d 626
Appeal from judgment of conviction of two counts of murder in the first degree and
imposition of the sentence of death; Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Defendant was convicted in the district court of two counts of murder in the first degree, and
he appealed. The Supreme Court held that: (1) admission of incriminating statement made by
defendant during course of interrogation without counsel was admissible on evidence that
defendant knew and understood his right to counsel and that he knowingly and intelligently
waived that right; (2) denial of request for an additional attorney to represent defendant by
reason of complexity of issues, severity of penalty, and other special circumstances was not
an abuse of discretion; (3) remarks of prosecutor to jury with respect to power of the State
Board of Pardons to modify any sentence the jury imposed did not individually or
cumulatively rise to level of prejudicial error warranting reversal; and (4) sentence of death
was not disproportionate to sentences in other cases and was not invalid as arising from the
influence of passion, prejudice, or any other arbitrary factor.
Affirmed.
David G. Parraguirre, Public Defender, Jane G. McKenna, Deputy Public Defender,
Brian McKay, Attorney General, Carson City, Mills Lane, District Attorney, Illyssa I.
Fogel, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
An accused who expresses the desire to deal with the police only through counsel is not subject to further
interrogation by the authorities until counsel has been made available to him unless the accused himself
initiates further communication, exchanges, or conversations with the authorities. U.S.C.A.Const. Amend.
5.
2. Criminal Law.
Conduct of defendant in initiating a conversation with officers in which he unequivocally eschewed his
right to an attorney was sufficient to establish a waiver of defendant's right to be free from further
interrogation until counsel had been made available to him and, when combined with a consideration of
defendant's background, level of comprehension, and dialogue with officers, was sufficient to establish a
waiver which was knowingly and intelligently made and therefore voluntary. U.S.C.A.Const. Amend. 5.
3. Criminal Law.
An equivocal request for counsel by an accused requires law enforcement officials to cease interrogation
unless they ask accused further questions to clarify whether he wants to consult with an attorney before
continuing with interrogation. U.S.C.A.Const. Amend. 5.
4. Criminal Law.
Statement by defendant to police officer that he had spoken with his attorney and had been advised to
keep his mouth shut did not operate to thereafter preclude officers from continuing their interrogation
when, in response to a request to clarify, defendant invited officers to question him and replied in
affirmative to further question whether he therefore meant to talk to officer. U.S.C.A.Const. Amend. 5.
5. Criminal Law.
Although defendant requested during course of interrogation that he be allowed to telephone his
grandmother and also his attorney, when he stated specifically that he wanted to get the matter off his
chest after he was afforded an opportunity to telephone his grandmother and then asked whether he also
wished to talk to his attorney, it could not be said that the officers violated the defendant's fifth and sixth
amendment rights by thereafter proceeding with the interrogation. U.S.C.A.Const. Amends. 5, 6.
6. Criminal Law.
Police officers were not required during various exchanges with defendant to again inform him of his
Miranda rights when several times during course of those exchanges defendant repeatedly rejected an
opportunity to have counsel present during questioning and also indicated that he not only knew and
understood his right to counsel but was knowingly and intelligently waiving that right. U.S.C.A.Const.
Amend. 5.
7. Criminal Law.
Incriminating statement made by defendant during course of interrogation without counsel was
admissible on evidence that defendant knew and understood his right to counsel and that he knowingly and
intelligently waived that right. U.S.C.A.Const. Amends. 5, 6.
8. Criminal Law.
Admission of incriminating statement, if error because obtained from defendant during course of
interrogation without presence of counsel, was not reversible error when there was sufficient other
evidence to establish defendant's guilt with respect to crime charged.
9. Criminal Law.
Denial of request for an additional attorney to represent defendant due to complexity of issues, severity of
penalty, and other special circumstances was not an abuse of discretion since, although the capital nature of
the case represented a complex form of litigation, no undue degree of preparation and investigation was
required and no unreasonable burden was shown to have been placed on counsel. NRS 260.060.
10. Criminal Law.
Remarks of prosecutor to jury with respect to power of the State Board of Pardons to modify any
sentence the jury imposed did not individually or cumulatively rise to a level of prejudicial error warranting
reversal.
11. Homicide.
Sentence of death imposed on conviction of two counts of murder in the first degree was not
disproportionate to sentences in other cases when considered in the light of the nature of the murders and
the lack of mitigating factors, and the sentence of death was not invalid as arising from
the influence of passion, prejudice, or any other arbitrary factor.
mitigating factors, and the sentence of death was not invalid as arising from the influence of passion,
prejudice, or any other arbitrary factor. NRS 177.055, subd. 2(c).
OPINION
Per Curiam:
In April of 1983, Doris Schindler hired Zella Weaver to babysit her ten-year old daughter,
Maggie Schindler. In addition to caring for Maggie during weekday afternoons and evenings
at the Schindler residence, Mrs. Weaver would pick Maggie up from the Meadowood Ice
Arena when Maggie was through ice skating on Saturdays.
On May 14, 1983, a neighbor of the Schindlers' drove Maggie and her friend, Carly Villa,
to Meadowood and dropped them off to skate. Later that afternoon Mrs. Weaver went to
Meadowood to pick up Maggie and Carly but could not find them. The police were notified,
and an investigation was begun.
On June 7, 1983, the bodies of Maggie and Carly were found in Logomarsino Canyon, a
remote area east of Reno, by two young men who were out shooting. The bodies, which had
been covered with loose dirt, were found about 50 yards apart. A pair of ice skates and skate
guards with the name Maggie S. on them were found near one of the gravesites.
Ricky David Sechrest is Zella Weaver's grandson and lived at her home. Sechrest had been
seen outside the Schindler home several times while waiting to pick up his grandmother when
she finished babysitting there. The record establishes that Maggie had been at the Weaver
residence before and that Sechrest knew that his grandmother routinely picked Maggie up at
Meadowood Mall on Saturdays.
On June 14, 1983, Sechrest gave an inculpatory statement to Officer Bogison and
Detective Eubanks of the Reno Police Department while he was being questioned at the
Sparks Police Department by Sparks police on an unrelated grand larceny charge. He
admitted that he had picked up Maggie and Carly from the Meadowood Mall Ice Arena. He
said that he asked Maggie if she wanted to go for a ride and that she had agreed. They drove
out to Logomarsino Canyon. Sechrest claimed that they were walking around the hills rock
hunting when Carly fell over backward and hit her head. Sechrest said he thought the girl was
dead because when he checked her pulse, she did not have one. He said Maggie began to
freak out on him and was between hysterical and crying. Sechrest stated that he knew it
was wrong to be up there with the girls to begin with, so when Maggie began to run he
panicked, caught her and hit her over the back of the head with a rock.
back of the head with a rock. After hitting the girl three or four more times with the rock after
she had fallen, Sechrest went to his car and got a shovel. He returned to where Carly was
lying and thought she was still alive; so he hit her once or twice in the head with the edge
of the shovel. He then buried the girls with loose dirt. In his statement Sechrest admitted that
he performed an act of masturbation on Maggie's body, but, according to him, at this time the
girl was already dead.
1

A jury convicted Sechrest of two counts of first degree murder and two counts of first
degree kidnapping. At the penalty phase, the jury set the penalty at death on each murder
conviction. In addition the trial judge sentenced Sechrest to life without possibility of parole
on each of the two kidnapping counts.
Constitutional Issues
Sechrest contends that the statement he made to the police, wherein he confessed to the
killing, was erroneously admitted into evidence by the trial court in violation of his
constitutional rights. We reject this contention.
Pursuant to the investigation of a grand larceny, Sechrest was approached on June 14,
1983 by officers from the Sparks Police Department. Advising Sechrest of his constitutional
rights under Miranda v. Arizona, 384 U.S. 436 (1966), Detective Wright asked him if he
wanted to talk about the grand larceny charge. Sechrest replied that he wanted an attorney.
Officers asked no further questions but took Sechrest to the Sparks Police Department for
booking. While waiting to be booked, Sechrest turned to Detective Wright and Sergeant
Gonyo and said: I like you two guys, I don't want an attorney, I will talk to you. The
officers proceeded with the booking and afterward Sechrest was given a standard rights
waiver form, which he read and signed in the presence of the officers. During questioning
Sechrest stated that the Reno Police were investigating him as a possible suspect in a
homicide. Sparks Police did not question Sechrest regarding the homicide but, rather, told
him that they were only interested in the grand larceny charge.
After the interview was finished, Sergeant Gonyo left the room and then returned to
inform Sechrest that Officer Bogison of the Reno Police Department was outside. Sergeant
Gonyo asked Sechrest if he would like to talk to Officer Bogison, and Sechrest replied: Yes,
I like Mr. Bogison, he is the only one on my side, and understands me.
____________________

1
At trial a forensic pathologist testified that it was unlikely that Carly fell and killed herself. He also testified
that the skull fractures in both children were probably caused by the shovel. He further testified that due to the
decomposition of the bodies it would have been impossible to tell if a sexual assault had occurred.
and understands me.
2
Officer Bogison then approached Sechrest and said: I understand
you want to talk to me, is that right? Sechrest replied: Yes. Sechrest said that he had
spoken with his attorney and had been advised to keep his mouth shut. In response, Bogison
said: Well, there is nothing we can do to alter that, . . . do you want to talk to me? Sechrest
replied: I will tell you what, I will make a dealno, I won't make a deal. You ask some
questions, and if I want to answer them, I will answer them, and if not, I won't. Bogison then
said: Does this mean you want to talk to us? Sechrest replied: Yes.
After the foregoing conversation Officer Bogison, Detective Eubanks and Sechrest entered
an interrogation room. Sechrest requested that he be permitted to call his grandmother and
also his attorney. After Sechrest spoke with his grandmother, Officer Bogison asked him: Do
you want to talk to your attorney? Sechrest replied: No, I want to get this off my chest. He
then made the statement in which he confessed to the murders.
3

[Headnote 1]
Generally, a request by a accused for an attorney is itself an invocation of fifth amendment
rights, and police must immediately cease questioning, as the officers correctly did after
arresting Sechrest on June 14. Neuschafer v. State, 101 Nev. 331, 705 P.2d 609 (1985);
Edwards v. Arizona, 451 U.S. 477 (1981). However, during the booking procedure, Sechrest
initiated a conversation with the officers in which he unequivocally eschewed his right to an
attorney and agreed to be questioned. The United States Supreme Court has stated that an
accused, . . . having expressed his desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel has been made available to
him, unless the accused himself initiates further communication, exchanges, or
conversations with the police."
____________________

2
Earlier that evening Detective Eubanks of the Reno Police Department had been contacted by Sechrest's
friend, Danny Sportsman. Sportsman told Eubanks that Sechrest wanted to talk to Bogison. Bogison then
contacted Mrs. Weaver, Sechrest's grandmother, at her home in a effort to contact Sechrest. Eubanks and
Bogison then went to the Sparks Police Department where Sechrest was being questioned in regard to the
unrelated grand larceny charge.

3
The statement of June 14 had been preceded by other conversations between Sechrest and the Reno Police
Department. Officer Bogison had spoken with him regarding the homicides as early as June 8. Officer Bogison
and Detective Eubanks had also spoken to him the day before, June 13. In Sechrest's statement of June 13, he did
not incriminate himself but, rather, maintained an alibi. The June 13 statement was made in response to a request
for background information, and Sechrest was not under arrest or in custody at the time. Near the end of this
interview Sechrest stated that he wished to consult an attorney. Officers ceased questioning at this point and told
Sechrest to feel free to reinstitute contact with them.
or conversations with the police. 451 U.S. at 484. (Emphasis added.) It is clear that Sechrest
reinstituted a dialogue with the officers at the booking desk, and therefore, that dialogue falls
under the Edwards rule.
[Headnote 2]
Although Sechrest initiated the communication, we still must consider whether the waiver
was knowingly and intelligently made. 451 U.S. at 486 n. 9. After initiating the exchange,
Sechrest read and signed a standard waiver form in the presence of the officers. The trial
court found the waiver to have been voluntarily made. Considering Sechrest's background,
level of comprehension, and dialogue with the authorities, it convincingly appears that the
waiver was knowingly and intelligently made and therefore voluntary. There is nothing in the
record which would cause us to disturb that determination, and we decline to do so.
[Headnote 3]
After Sechrest agreed to talk to the officers, Sergeant Gonyo of the Sparks Police
Department informed Sechrest that Officer Bogison of the Reno Police Department was
outside. Sergeant Gonyo asked Sechrest if he would like to speak to Officer Bogison.
Sechrest gave an unequivocal, affirmative answer. Officer Bogison then entered the room and
asked Sechrest if he wished to speak with him. Again, Sechrest replied affirmatively. Clearly,
Sechrest not only initiated the meeting with Officer Bogison, he repeatedly affirmed his
desire to speak with Bogison upon Bogison's arrival at the Sparks Police Department. After
this Sechrest made what is, at best, an ambiguous request for counsel. Sechrest said that that
he had spoken with his attorney and had been advised to keep his mouth shut. Even an
equivocal request for counsel by an accused requires that law enforcement officials must
cease the interrogation unless they ask the suspect further questions to clarify whether the
suspect wants to consult with an attorney before continuing with the interrogation. United
States v. Cherry, 733 F.2d 1124, 1130 (5th Cir. 1984) (citing Nash v. Estelle, 597 F.2d 513,
517 (5th Cir. 1979 (en banc)).
[Headnote 4]
Officer Bogison's response to Sechrest's comment was in the form of a request to clarify.
As demonstrated by the above-quoted colloquy between Sechrest and Bogison, Sechrest
invited the officers to question him. In a further attempt to clarify Sechrest's intent, Officer
Bogison then inquired: Does this mean you want to talk to us? Sechrest replied, Yes.
This was adequate clarification of Sechrest's unimpaired willingness to talk to officers in the
absence of counsel.
Recently, the United States Supreme Court in Smith v. Illinois,
___
U.S.
___
, 105 S.Ct.
490 (1985), addressed a case which presented similar facts.
presented similar facts. The accused in that case was advised by the police that he had a right
to consult with an attorney and to have that attorney present during questioning. The accused
responded: Uh, yeah. I'd like to do that. 105 S.Ct. at 491. Subsequently, in response to
further interrogation, the accused agreed to speak with police without consulting an attorney.
In reversing the conviction, the Supreme Court stated: We hold only that, under the clear
logical force of settled precedent, an accused's post-request response to further interrogation
may not be used to cast retrospective doubt on the clarity of the initial request itself. 105
S.Ct. at 495.
[Headnote 5]
The present case is distinguishable from the Smith case because Sechrest did not make
such an unambiguous request for an attorney so that Officer Bogison's attempts at
clarification were improper. After Sechrest and the officers entered the interrogation room,
Sechrest requested that he be allowed to telephone his grandmother and also his attorney.
After Sechrest spoke to his grandmother, Officer Bogison asked if he then wished to talk to
his attorney. Sechrest replied: No. I want to get this off my chest. Officer Bogison's
question followed Sechrest's telephone conversation with Sechrest's grandmother and was a
reasonable attempt to clarify whether Sechrest then still wished to telephone his attorney.
Sechrest's answer to the inquiry was clear. Sechrest wanted to get the matter off his chest.
Under these circumstances it cannot be said that officers proceeded with the interrogation in
violation of Sechrest's fifth and sixth amendment rights.
[Headnote 6]
Sechrest additionally maintains that at some point during the previous exchanges officers
should have once again informed him of his Miranda rights. This argument fails to take into
consideration the factual circumstances surrounding Sechrest's statement. Several times prior
to making the statement Sechrest was asked if he desired an attorney. He repeatedly rejected
the opportunity to have one present during questioning. The record makes it clear that
Sechrest not only knew and understood his right to counsel but that he also knowingly and
intelligently waived that right. Taylor v. State, 96 Nev. 385, 609 P.2d 1238 (1980).
[Headnote 7]
We conclude that admission of the confession by the trial court for use as substantive
evidence of guilt was not error.
[Headnote 8]
Even without the confession there is sufficient evidence of Sechrest's guilt to support his
conviction. Tanya Wagner, the friend with whom Maggie and Carly skated that day,
identified Sechrest in court as the man who picked up Maggie and Carly at Meadowood.
Sechrest in court as the man who picked up Maggie and Carly at Meadowood. Sechrest knew
the victims and was familiar with Logomarsino Canyon. Police found a bloodstained shovel
at Sechrest's residence which a forensic pathologist testified was consistent with the victims'
skull fractures. Additionally, fibers found at the gravesites were consistent with fibers taken
from Sechrest's car.
Right to Additional Counsel
Sechrest next argues that it was an abuse of discretion for the trial court to deny his request
for an additional attorney to represent him. We conclude otherwise.
On June 30, 1983, defense counsel filed a motion for appointment of another attorney to
assist him in Sechrest's defense. The reasons given for requesting additional counsel were:
complexity of the issues, severity of penalty, and other special circumstances. The court
denied the motion. Counsel asked leave to renew the motion for appointment of additional
counsel at a later date. However, the motion was never renewed. Trial was set for September
12, 1983, and proceeded without further defense objection.
NRS 260.0604 authorizes the appointment of additional counsel. However, the permissive
language of the statute indicates that such appointment is discretionary with the trial court.
Sechrest cites two California cases for the proposition that in appropriate circumstances a
defendant in a capital case should have a second court-appointed attorney. In People v.
Jackson, 681 P.2d 149 (Cal. 1980), the California Supreme Court held that the defendant in a
death penalty case had failed to furnish any specific compelling reasons for the appointment
of additional counsel. Noting that neither the facts nor legal issues were so complex as to
require additional counsel as a matter of law, the court concluded that the trial court acted
within its discretion in denying the defendant's motion to appoint additional counsel. In
Keenan v. Superior Court 640 P.2d 108 (Cal. 1983), the California Supreme Court held that
denial of the motion for additional counsel was an abuse of discretion on the facts of that case
but emphasized that the decision was still a discretionary one. The facts of Keenan are
distinguishable from the instant case. In Keenan the defense stated it would be necessary to
interview approximately 120 witnesses to prepare a meritorious defense. Investigation had to
be done with regard to other crimes with which the defendant was charged. Defense counsel
also argued that he would make numerous pre-trial motions, and despite his objection, a
trial date was set seven weeks thereafter.
____________________

4
NRS 260.060: For cause, the magistrate or district court may, on its own motion or upon the motion of the
public defender or the indigent person, appoint and compensate out of county funds an attorney other than, or in
addition to, the public defender. . . . (Emphasis added).
that he would make numerous pre-trial motions, and despite his objection, a trial date was set
seven weeks thereafter.
In the instant case there were few pre-trial motions, including the request for an additional
attorney. The defense theory was that Sechrest had indeed killed the girls and raised as a
defense only the absence of deliberation and premeditation. This theory eliminated the need
for much of the investigatory work that would normally have to be done. The state ultimately
called only twenty-one witnesses, and the trial only lasted one and one-half weeks.
Additionally, defense counsel was able to employ the services of a student legal research
assistant.
[Headnote 9]
We conclude that although a capital case represents a complex form of litigation, these
facts make it clear that an undue degree of preparation and investigation was not required, nor
was an unreasonable burden placed on Sechrest's counsel. Indeed, as previously noted,
defense counsel never sought to renew the motion for additional counsel. Under the facts of
this case we find no abuse of discretion.
Prosecutorial Misconduct
[Headnote 10]
Sechrest finally raises an issue of prosecutorial misconduct. He cites as prejudicial error
several remarks the prosecutor made to the jury concerning an instruction which informed the
jury of the power of the State Board of Pardons Commissioners to modify any sentence the
jury imposed.
5
We have carefully examined the statements and the context in which they
were made. We conclude that they do not either individually or cumulatively rise to the level
of prejudicial error warranting reversal.
Proportionality
[Headnote 11]
We have reviewed our other cases in which the sentence of death has been imposed to
determine whether Sechrest's sentence is disproportionate. Our review leads us to conclude
that the sentence of death is not disproportionate in this case when considered in light of the
nature of the murders and the lack of mitigating factors which might possibly militate against
the sentence of death.
We also conclude from the record that the sentences of death were not imposed under the
influence of passion, prejudice or any arbitrary factor. NRS 177.055(2)(c).
____________________

5
Sechrest also argues that the giving of the instruction itself was error. We have previously decided this issue.
See Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).
We have carefully examined the remaining contentions of error and conclude that they are
without merit. In sum, Sechrest was fairly tried, convicted and sentenced. The judgment of
the trial court is, in all respects, affirmed.
____________
101 Nev. 369, 369 (1985) Potter v. State Bd. of Med. Exam'rs
JAMES D. POTTER, M.D., Appellant and Cross-Respondent, v. STATE BOARD OF
MEDICAL EXAMINERS, Respondent and Cross-Appellant.
No. 15340
August 27, 1985 705 P.2d 132
Appeal from an order upholding revocation of appellant's medical license. Eighth Judicial
District Court, Clark County, Donald M. Mosley, Judge.
Appeal and cross-appeal were taken from an order of the district court reinstating a
physician's license to practice medicine and remanding the case to the Board of Medical
Examiners for a hearing. The Supreme Court, 659 P.2d 868, affirmed in part and reversed in
part. The district court upheld decision of Board revoking license, and physician appealed.
The Supreme Court held that the Board's order of revocation was procedurally inadequate.
J. Bruce Alverson and Eric Taylor, Las Vegas; Richard Prendergast, Chicago, Illinois, for
Appellant and Cross-Respondent.
Lionel, Sawyer & Collins, Las Vegas; Hawkins & Sharp, Reno, for Respondent and
Cross-Appellant.
Board of Medical Examiners' order revoking physician's license was procedurally inadequate where only
three Board members of the six present at meeting voted in favor of revocation.
Interest in practicing one's profession is a valuable property right which cannot be arbitrarily abridge or
revoked. U.S.C.A.Const. Amend. 14.
Individual must be afforded due process before he can be excluded from his profession. U.S.C.A.Const.
Amends. 5, 14.
Procedures which satisfy due process in a given situation depend, in part, on private interest affected and
government interest to be protected. U.S.C.A.Const. Amends. 5, 14.
In context of hearing to determine sanctions to be imposed upon licensee by occupational licensing
board, majority of members of board who are present and qualified to vote must vote in favor of revocation
in order for board to revoke licensee's professional license.
Statement by chairman of Board of Medical Examiners that he agreed with order of revocation of
physician's license did not cure deficiency which arose when only three Board members of six present
voted in favor of revocation where chairman abstained.
OPINION
Per Curiam:
The facts underlying the present appeal are set forth in this court's previous opinion in this
case. Board Med. Exam'rs v. Potter, 99 Nev. 162, 659 P.2d 868 (1983) (Potter I). In Potter I,
this Court affirmed in part the order of the district court reversing the Board's revocation of
the medical license of appellant James D. Potter. This Court held that only one of the two
grounds the Board relied on to revoke Potter's license was supported by substantial evidence.
We stated, [i]t is unknown whether the Board would have revoked [Potter's] license without
the additional charge. 99 Nev. at 166. We affirmed the lower court's order of remand and
held that on remand the Board was to determine what sanction, if any, should be imposed on
the charge which was supported by the evidence. Id. The charge supported by the evidence
was that Potter had been convicted of a felony in United States District Court. Potter was
convicted in 1978 of fifty-four counts of unlawfully distributing controlled substances.
On December 16, 1983, the Board held a meeting to consider Potter's case on remand. Six
members of the board were present. The seventh member had recently resigned and no
replacement had yet been appointed. The Board denied Potter's request to present evidence of
his professional conduct since the date his license was initially revoked on the present charges
in 1980. At one point, the board closed the meeting to non-Board members and discussed the
case for approximately one hour in an executive session. The Board then reconvened in
public. On a motion to revoke Potter's medical license, three Board members voted in favor
of the motion, two voted against it and one, the Board chairman, abstained. The Board
revoked Potter's license.
Potter petitioned the district court for judicial review. Potter appeals from the order of the
district court upholding the decision of the Board.
1
[Headnotes 1-5]
____________________

1
Potter's request for a stay of the revocation pending appeal was denied by this Court in an order filed
October 15, 1984.
[Headnotes 1-5]
On appeal to this Court, Potter raises several assignments of error. We need only discuss
one issue since it is dispositive of this appeal. Potter contends, and we agree, that the Board's
order of revocation was procedurally inadequate because only three Board members of the six
present at the December 16, 1983 meeting voted in favor of revocation. The interest in
practicing one's profession is a valuable property right which cannot be arbitrarily abridged or
revoked. Burleigh v. State Bar of Nevada, 98 Nev. 140, 145, 643 P.2d 1201, 1204 (1982);
State v. Medical Examiners, 68 Nev. 455, 235 P.2d 327 (1951). An individual must be
afforded due process before he can be excluded from his profession. Burleigh v. State Bar of
Nevada, supra. The procedures which satisfy due process in a given situation depend, in part,
on the private interest affected and the government interest to be protected. Id. In the context
of a hearing to determine the sanctions to be imposed upon a licensee by an occupational
licensing board, we hold that a majority of the members of the board who are present and
qualified to vote must vote in favor of revocation in order for the board to revoke the
licensee's professional license. See generally Annots. 63 A.L.R.3d 1072, 6b.
[Headnote 6]
In the case at bar, this requirement was not met. Only one-half of the six Board members
present at and participating in the December 16, 1983 meeting voted to revoke Potter's
license. Two members voted against revocation, and the chairman of the Board abstained.
The chairman did not provide reasons for his abstention.
2
The chairman stated on the record
that he agreed with the order of revocation. Such a statement, however, does not constitute a
properly cast vote. Therefore, the chairman's comment did not cure the deficiency behind the
Board's revocation order.
Because there were insufficient votes for the Board to revoke Potter's medical license, the
district court's order upholding the revocation must be reversed and the matter remanded to
the Board. See State, Bd. Psychological Exam'rs v. Norman, 100 Nev. 241, 679 P.2d 1263
(1984). On remand, the Board may receive new evidence at its discretion. Accordingly, we
reverse the judgment of the district court and remand for proceedings consistent with this
opinion.
3

____________________

2
Presumably, these reasons did not require the chairman's disqualification since he fully participated in the
December 16, 1983 meeting except for voting. See NRS 233B.122.

3
In its cross-appeal the Board appeals from the district court's denial of its request for sanctions. We hereby
affirm that order.
____________
101 Nev. 372, 372 (1985) Eureka County v. Holbo
EUREKA COUNTY SCHOOL DISTRICT BOARD OF TRUSTEES; SELWAY MULKEY,
in His Capacity of Acting Superintendent of The Eureka County School District; GLEN W.
MOYLE, in His Capacity As a Member of The EUREKA COUNTY SCHOOL DISTRICT
BOARD OF TRUSTEES; MARIBETH ROBINSON, in Her Capacity As a Member of The
EUREKA COUNTY SCHOOL DISTRICT BOARD OF TRUSTEES; VERA BAUMANN,
in Her Capacity As a Member of The EUREKA COUNTY SCHOOL DISTRICT BOARD
OF TRUSTEES; RON CARRION, in His Capacity As a Member of The EUREKA
COUNTY SCHOOL DISTRICT BOARD OF TRUSTEES; and EARL NUTTAL, in His
Capacity As a Member of The EUREKA COUNTY SCHOOL DISTRICT BOARD OF
TRUSTEES, Appellants, v. PHILLIP HOLBO, Respondent.
No. 15389
August 27, 1985 705 P.2d 640
Defendants-appellants appeal from a judgment in favor of plaintiff-respondent in an action
for breach of contract of employment. Seventh Judicial District Court, Eureka County;
Merlyn H. Hoyt, Judge.
Teacher brought breach of contract action against school board for failure to give written
admonition that he might not be reemployed. Judgment was entered for teacher by the district
court and school district appealed. The Supreme Court held that: (1) statutory admonition
provision does not apply to probationary teachers, and (2) teacher was not deprived of due
process, where he received all evaluation conferences required for probationary teachers and
was notified by letter before April 1 that he would not be reemployed for the following school
year.
Reversed.
Walther, Key, Maupin, Oats, Cox, Lee & Klaich, and Monique Laxalt Urza, Reno, and
Milos Terzich, Gardnerville, for Appellants.
Michael W. Dyer, Carson City, for Respondent.
1. Schools.
Statute, NRS 391.313, requiring admonition of school employee where administrator believes
employee may be demoted, dismissed, or not reemployed does not apply to probationary employees, since
such application would render useless existing evaluation schedule and reemployment notification
provisions of statute. NRS 391.3125, subd. 3, 391.3197, subd.
391.3197, subd. 2, and would impermissibly imply creation of right to hearing upon non-reemployment
that is available only to certified employees. NRS 391.3161, subd. 4.
Probationary school teacher has only a unilateral expectation of employment, and no claim of entitlement
to it, for due process purposes. U.S.C.A.Const. Amends. 5, 6, 14.
Probationary teacher who was not reemployed for another school year and did not receive written
admonition nor hearing was not deprived of proprietary and liberty interests without due process, where he
received all required evaluation conferences which alerted him that grounds for non-reemployment existed
and was notified by letter before April 1 that he would not be reemployed the following school year. NRS
391.312, 391.3125, subd. 3, 391.3161, subd. 4, 391.3197, subds. 2, 8; U.S.C.A.Const. Amends. 5, 6,
14.
OPINION
Per Curiam:
In August 1981, plaintiff-respondent Phillip Holbo contracted with defendant-appellant
Board of Trustees of Eureka County School District for employment as a probationary teacher
for the 1981-1982 school year. Respondent's responsibilities were to teach social studies and
government at the secondary level, to coach football, and to act as senior class advisor.
Pursuant to NRS 391.3125(3),
1
appellants evaluated respondent's performance as a
probationary teacher on schedule. In October 1981, the first teacher evaluation revealed
respondent's performance was either good or superior in all areas. In November,
respondent ordered a student to arrange for disciplinary detention after the student repeatedly
used the term ain't. When the student failed to arrange for detention, respondent referred the
student to Principal Selway Mulkey. The principal thereafter conferred with respondent
and offered suggestions for less punitive means to handle disciplinary incidents; the
principal's report of that conference criticized respondent for requiring strict adherence to
the disciplinary system and offered respondent suggestions and help in becoming more
effective in handling disciplinary incidents.
____________________

1
NRS 391.3125 provides, in part:
. . . .
3. The probationary period must include a conference and a written evaluation for the probationary
employee no later than:
(a) November 1;
(b) January 1;
(c) March 1; and
(d) May 1,
of the school year.
4. Each postprobationary teacher shall be evaluated at least once each year.
5. The evaluation of a probationary teacher or a postprobationary teacher shall, if necessary, include
recommendations for improvements in teaching performance. A reasonable effort shall be made to assist
the teacher to correct deficiencies noted in the evaluation. The teacher shall receive a copy of each
evaluation not later than 15 days after the evaluation. . . .
thereafter conferred with respondent and offered suggestions for less punitive means to
handle disciplinary incidents; the principal's report of that conference criticized respondent
for requiring strict adherence to the disciplinary system and offered respondent suggestions
and help in becoming more effective in handling disciplinary incidents.
Respondent's second evaluation in December, 1981 indicated that he needed to improve
classroom management. Respondent then wrote a letter to Superintendent Ted Jackson,
challenging the accuracy of the second evaluation report, and requesting a conference. During
the ensuing conference, the principal advised respondent that the best recommendation he
could make for reemployment would be a trial year. The principal requested permission
from the superintendent to issue respondent an admonition pursuant to NRS 391.313(1).
2
The principal testified the superintendent denied him permission to admonish respondent.
Respondent's third evaluation, in February, showed that some areas previously needing
improvement were now satisfactory.
By letter dated March 30, 1982, the principal, now acting superintendent, notified
respondent that his contract would not be renewed for the ensuing academic year. The reasons
given for the decision not to renew employment were inadequate performance, unprofessional
conduct, insubordination, and failure to show both normal improvement and professional
growth. Holbo was unable to obtain employment for the 1982-1983 school year and filed this
action for breach of contract for failure to admonish him pursuant to NRS 391.313, seeking a
declaratory judgment, damages and reinstatement. Following trial, the district court decided
the admonition requirement was applicable to non-reemployment of probationary teachers
and the contract was breached by the failure to give the admonition. The court ordered one
year's salary as damages but refused to order reinstatement. Appellants appeal from the order
assigning several aspects of the decision as error.
Appellants contend that the NRS 391.313(1) admonition is inapplicable to probationary
employees and thus the court erred in finding a breach of contract by the failure to
admonish respondent.
____________________

2
NRS 391.313(1) provides in part:
Whenever an administrator charged with supervision of a certified employee believes it is necessary
to admonish a certified employee for a reason that he believes may lead to demotion, dismissal or cause
the employee not to be reemployed under the provision of NRS 391.312, he shall:
(a) Bring the matter to the attention of the employee involved, in writing, and make a reasonable
effort to assist the employee to correct whatever appears to be the cause for potential demotion, dismissal
or failure to reemploy; and
(b) Except as provided in NRS 391.314, allow reasonable time for improvement, which must not
exceed 3 months for the first admonition. . . .
in finding a breach of contract by the failure to admonish respondent. We agree.
[Headnote 1]
We conclude the application of the admonition provision to probationary teachers would
render useless the existing evaluation schedule and reemployment notification provisions of
the statute. NRS 391.3125(3) establishes a detailed teacher evaluation schedule for
probationary employees. NRS 391.3197(2) entitles the probationary employee to a written
notification of whether he is to be reemployed for the next school year prior to April 1 of the
school year.
3
Any evaluation and reemployment notification after the issuance of an
admonition would serve little purpose. The purpose for the admonition, as expressed in NRS
391.313(1)(b), is to permit the employee an opportunity to improve his or her work
performance. Conferences were held between respondent and the principal in addition to
those required by NRS 391.3125(3), and the principal offered suggestions for corrections of
respondent's deficiencies which fulfilled the purpose of the admonition.
Additionally, NRS 391.3197(8) entitles the probationary employee to a hearing upon
dismissal from employment, but not upon demotion or refusal to reemploy.
4
NRS
391.3161(4), which is not expressly applicable to probationary employees, permits the
employee a hearing in cases of demotion, dismissal or refusal to reemploy based on grounds
contained in NRS 391.312. The application of the admonition to probationary employees
would thus impermissibly imply the creation of a right to a hearing upon non-reemployment
in addition to the existing statutory rights of probationary teachers.
[Headnotes 2, 3]
Moreover, appellants' action did not impair respondent's proprietary and liberty interests
without due process. As a probationary teacher, respondent had only a unilateral
expectation of employment, and no claim of entitlement to it.
____________________

3
1. A probationary employee is employed on an annual basis and has no right to employment after a
probationary contract year.
2. . . .the board of trustees shall notify him in writing on or before April 1 of the school year whether
he is to be reemployed for the next school year. . . .
. . . .
5. If a probationary employee is notified that he will not be reemployed for the ensuing school year,
his employment ends on the last day of the school year specified in the contract. The notice that he will
not be reemployed must include a statement of the reasons for that decision.
. . . .
8. Before dismissal, the probationary employee is entitled to a due process hearing. . . .

4
See note 3, infra.
ary teacher, respondent had only a unilateral expectation of employment, and no claim of
entitlement to it. Board of Regents v. Roth, 408 U.S. 564 (1972); McGee v. Humboldt Co.
School Dist., 93 Nev. 171, 561 P.2d 458 (1977). The conference and evaluation reports which
occurred during the school year pursuant to NRS 391.3125(3) alerted respondent that grounds
for non-reemployment existed. Respondent could not have had an objectively reasonable
belief that his reemployment was assured. Respondent received written notice of
non-reemployment before April 1 as required by 391.3197(2), and thus received all the
process due him pursuant to the statute.
Accordingly, the order of the district court is reversed.
____________
101 Nev. 376, 376 (1985) Ippolito v. Liberty Mutual
GISELE IPPOLITO and PASQUALE IPPOLITO, Sr., Appellants, v. LIBERTY MUTUAL
INSURANCE COMPANY, Respondent.
No. 15476
August 27, 1985 705 P.2d 134
Appeal from order granting motion to dismiss declaratory relief action. Eighth Judicial
Appeal was taken from an order of the district court granting insurer's motion to dismiss
action for declaratory relief as to application of new uninsured motorist statute to automobile
policy. The Supreme Court held that under new statute, which was enacted six months before
accident, insured should have been given option of purchasing higher uninsured motorist
limits, and since policy limited that coverage available in contravention of statute, increased
protection afforded by statute had to be implied into policy's provisions.
Reversed.
Albert D. Massi and Allen Cap, Las Vegas, for Appellant Gisele Ippolito.
Robert K. Dorsey, Las Vegas, for Appellant Pasquale Ippolito, Sr.
Fitzgibbons, Cobb & Morrell, Las Vegas, for Respondent Liberty Mutual Insurance
Company.
Brian McKay, Attorney General, and Deborah Gallagher, Deputy Attorney General,
Carson City, for the State of Nevada, Amicus Curiae.
1. Insurance.
The Supreme Court will strictly construe provisions of uninsured motorist statute in favor of recovery by
insured, and requirements of such statute are implicitly part of every policy of automobile insurance as if
expressly written into policy.
2. Insurance.
Policy itself may not limit coverage in contravention of public policy provided in insurance statute.
3. Insurance.
Provisions in policy in conflict with insurance statute are void and unenforceable because they are
repugnant to intent of statute and against public policy.
4. Insurance.
Under new uninsured motorist statute [NRS 687B.145, subd. 2] which requires insurer to offer
uninsured motorist coverage equal to insured's bodily injury limits and which was in effect nearly six
months before accident, insured should have been given option of purchasing higher uninsured motorist
limits and because insurer did not give insured option and policy limited underinsured motorist coverage
available, in contravention of statute, increased protection had to be implied into policy's provision.
OPINION
Per Curiam:
The Ippolitos appeal the lower court's order granting Liberty Mutual's motion to dismiss a
declaratory relief action. The Ippolitos contend that the district court erred in its
determination that the controlling statutory provision requiring insurance carriers to offer
equal limits of uninsured motorist limits, among other protections, does not apply to Gisele
Ippolito's policy with Liberty Mutual. We agree with the Ippolitos, and reverse the judgment
of the lower court.
The facts in this appeal are not in dispute. Gisele Ippolito purchased an automobile
insurance policy to go into effect on April 4, 1979. The policy provided $300,000 limits in
liability protection, but only $15,000 per person, $30,000 per accident, in uninsured motorist
protection. On July 1, 1979, NRS 687B.145(2)
1
became effective. This provision requires
insurance carriers to offer uninsured motorist coverage equal to the insured's bodily injury
limits. Nearly six months after this statutory change in insurance coverage, December 22,
1979, appellants' son, Pasquale Ippolito, Jr., was killed in a one-car automobile accident.
____________________

1
NRS 687B.145(2) states:
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
carriers to offer uninsured motorist coverage equal to the insured's bodily injury limits. Nearly
six months after this statutory change in insurance coverage, December 22, 1979, appellants'
son, Pasquale Ippolito, Jr., was killed in a one-car automobile accident. However, the
tort-feasor's policy limits of $15,000 could not satisfy the wrongful death judgment for over
$100,000 which the Ippolitos obtained.
Gisele Ippolito then filed an action for declaratory relief, alleging that Liberty Mutual had
breached its statutorily imposed duty to offer her higher uninsured limits, pursuant to the
statute. Pasquale Ippolito, Sr., filed a complaint in intervention, claiming benefits under the
policy. Liberty Mutual filed a motion to dismiss the complaint with prejudice, claiming that
because its policy was issued prior to the effective date of the statute, the statute did not apply
to the policy. The lower court granted the motion to dismiss.
Inferably, the district court must have thought that, because the policy predated the date of
the statute, the statute cannot be applied to the policy unless the insured requests the
additional protections offered by the statute.
2
In any case, we are asked on appeal to decide
whether the increased insurance coverage required by NRS 687B.145(2) became, by
implication of law, a part of Mrs. Ippolito's insurance policy after the effective date of the
statutory change.
3

[Headnotes 1-3]
We have previously determined that we will strictly construe provisions of an uninsured
motorist statute in favor of recovery by the insured, and that the requirements of such a
statute are implicitly a part of every policy of automobile insurance in Nevada, as if
expressly written into the policy.
____________________
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.

2
The district court's reasons for granting the motion to dismiss are unclear. At the hearing on the motion, the
court conceded: I am not making myself very clear. Accordingly, the motion to dismiss is granted.

3
As amicus curiae for the State of Nevada, the deputy attorney general asks us to consider whether this
statute is constitutional if it applies retrospectively. Liberty Mutual raised this issue, for the first time, on appeal.
Because of our resolution of the issue properly before us, however, we decline to address this issue expressly.
We recognize, nonetheless, that because NRS 687B.145(2) does not direct a retrospective application of its
provisions by its plain language, we must construe it to apply prospectively, to policies in effect on the date the
statute became effective. It is a fundamental tenet of statutory interpretation that statutes are presumed to
operate prospectively and shall not apply retrospectively unless they are so strong, clear and imperative that they
can have no other meaning or unless the intent of the legislature cannot be otherwise satisfied. Holloway v.
Barrett, 87 Nev. 385, 390, 487 P.2d 501, 504 (1971). The prospective application of the statute, however, does
not mean that the policy before us is not governed by the statutory mandates of NRS 687B.125(2).
by the insured, and that the requirements of such a statute are implicitly a part of every policy
of automobile insurance in Nevada, as if expressly written into the policy. State Farm Mut.
Auto. Ins. v. Hinkel, 87 Nev. 487, 483, 488 P.2d 1151, 1153-54 (1971); Allstate Ins. Co. v.
Maglish, 94 Nev. 699, 702, 586 P.2d 313, 314 (1978). We have recognized that the policy
itself may not limit coverage in contravention of the public policy provided in the statute, and
that provisions in conflict are void and unenforceable because they are repugnant to the
intent of the statute and against public policy. 87 Nev. at 482, 488 P.2d at 1154. The public
policy expressed in NRS 687B.145(2) is that, effective July 1, 1979, insurance companies
doing business in Nevada must offer uninsured-underinsured motorist coverage equal to the
limits of bodily injury coverage sold to the individual policy holder.
[Headnote 4]
Interpreting the law in light of these principles, then, effective July 1, 1979and certainly
prior to the date of the accident, December 22, 1979Liberty Mutual was obligated to offer
Mrs. Ippolito uninsured-underinsured motorist limits equal to the limits of liability it had sold
to her. As issued, the Liberty Mutual policy offers liability limits of $300,000 but only
uninsured motorist limits of $15,000 per person, $30,000 per accident. It appears no option of
increased limits was ever made available to Mrs. Ippolito, even though nearly six months
elapsed after the statutory requirements became effective. Under NRS 687B.145(2), the
insured should have been given the option of purchasing higher uninsured motorist limits, up
to $300,000. Therefore, because the Liberty Mutual policy limits the underinsured motorist
coverage available, in contravention of the statute, we must imply into the policy's provisions
the increased protection afforded Mrs. Ippolito by NRS 687B.145(2).
We are unpersuaded by Liberty Mutual's assertion that the statute's protection should apply
to Mrs. Ippolito's policy only upon the policy's renewal. Such an application would be
haphazard and, we think, would be repugnant both to the public policy expressed in the
statute, and to our obligation to resolve doubts by a construction favoring coverage.
Nor do we believe that the increased protection afforded Nevada policyholders applies
only if a premium were charged and paid. Of course, if a policyholder accepted it, Liberty
Mutual would be entitled to a reasonable premium for providing the mandatorily increased
uninsured motorist coverage; however, it may not deny such coverage merely because it has
failed to provide its policyholders an opportunity to pay a premium. We have carefully
examined Liberty Mutual's remaining contentions, and have determined that they are either
not properly before us or are without merit.
and have determined that they are either not properly before us or are without merit.
Accordingly, the district court's order granting Liberty Mutual's motion to dismiss is
reversed, and this matter is remanded to the district court for proceedings consistent with this
opinion.
____________
101 Nev. 380, 380 (1985) Campbell v. Campbell
THELMA L. CAMPBELL, Appellant and Cross-Respondent, v. MAX B. CAMPBELL,
No. 15546
August 27, 1985 705 P.2d 154
Appeal and cross-appeal from an order dividing the parties' property in a divorce
proceeding; Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Wife filed for divorce, and the district court equitably divided couple's house and travel
agency. Wife appealed and husband cross-appealed. The Supreme Court held that: (1) house
held by couple as joint tenants was subject only to equal, rather than equitable, division; (2)
wife had not rebutted presumption that one half of down payment she made on house was a
gift; (3) finding that husband has acquired certificate of deposit before marriage was
supported by substantial evidence; (4) refusal to award husband costs of wife's deposition was
not an abuse of discretion; (5) wife had no right to contribution for partial payment with her
separate funds of a community debt incurred to benefit her property; and (6) because
erroneous division of house may have influenced division of travel agency, case should be
remanded to allow modification of property division order.
Ward & Maglaras, Las Vegas, for Appellant and Cross-Respondent.
Colucci, Minagil & Aurbach, Las Vegas, for Respondent and Cross-Appellant.
1. Divorce.
Property placed in joint tenancy before July 1, 1979 is subject to only equal division, rather than
equitable division, unless the property is necessary for support of spouse or children. NRS 125.150,
subds. 1(b)(2), 4.
2. Divorce.
Residential house placed into joint tenancy by husband and wife prior to July 1, 1979 was not community
property subject to equitable division upon divorce, where couple had no children and neither party sought
alimony. NRS 125.150, subds. 1(b)(2), 4.
3. Husband and Wife.
When separate funds of a spouse are used to acquire property in names of husband and wife as joint
tenants, spouse is presumed to have intended a gift of one half of the value of joint tenancy property; this
presumption is overcome only by clear and convincing evidence.
4. Divorce.
Wife who made down payment on residential house held by husband and wife as joint tenants failed to
rebut presumption that one half of down payment made was a gift and thus could not obtain reimbursement
for one-half of down payment upon divorce, where wife testified that husband was to repay her as soon as
he sold his home, but husband subsequently invested, with wife's knowledge, the proceeds of such sale into
travel agency operated by husband and wife.
5. Husband and Wife.
Finding that husband had acquired certificate of deposit prior to marriage, which precluded application of
statutory presumption, NRS 123.220, that property acquired after marriage is community property, was
supported by substantial evidence.
6. Costs.
Costs are awarded as a matter of course to prevailing party in all actions listed in NRS 18.020.
7. Divorce.
Award of costs in a divorce and property division proceeding is discretionary with district court. NRS
18.020, 18.050.
8. Divorce.
Withholding costs of wife's deposition from general award of costs to husband as prevailing party in
divorce action was not an abuse of discretion.
9. Divorce.
Where trial court performed equitable, rather than equal, division of house placed into joint tenancy by
husband and wife prior to July 1, 1979, and such erroneous division may have influenced trial court's
division of travel agency, case was remanded to district court to allow any appropriate modification of its
property division order.
10. Divorce.
Wife could not obtain contribution for partial payment with her separate funds of a community debt
incurred for benefit of her separate property.
OPINION
Per Curiam:
The parties to this appeal, Thelma L. and Max B. Campbell, were married on April 24,
1977 in Las Vegas, Nevada. After six and one-half years of marriage, Thelma filed for
divorce. The district court equitably divided the couples' two joint assets, a house and a travel
agency. Because the house was held in joint tenancy before July 1, 1979, it was subject only
to equal distribution. Therefore, we reverse that portion of the district court's order which
divides the house 60/40 in Thelma's favor.
[Headnote 1]
NRS 125.150(1)(b)(2) permits the equitable division of [a]ny property placed in joint
tenancy by the parties on or after July 1, 1979."
1979. Property placed in joint tenancy before July 1, 1979 is subject only to equal division
unless the property is necessary for the support of spouse or children. See NRS 125.150(4)
(separate property of husband or wife may be set apart for support of spouse or children). Cf.
Stojanovich v. Stojanovich, 86 Nev. 789, 794, 476 P.2d 950 (1970) (NRS 125.150, as it then
existed, permitted equitable distribution of community property only; therefore, it was an
abuse of discretion for court to award wife husband's separate property to effect equitable
distribution when wife was not in need of support).
[Headnote 2]
The Campbells purchased the house in 1977 and held title as joint tenants. No children
issued from the marriage and neither party sought alimony. The district court erred, therefore,
in finding the house to be community property subject to equitable division.
[Headnotes 3, 4]
Thelma claims that she should be reimbursed for one-half of the $69,000.00 down
payment she made on the house. Thelma, however, has failed to rebut the presumption of gift
by clear and convincing evidence:
When separate funds of a spouse are used to acquire property in the names of the
husband and wife as joint tenants, it is presumed that a gift of one-half of the value of
the joint tenancy property was intended. The presumption is overcome only by clear
and convincing evidence.
Gorden v. Gorden, 93 Nev. 494, 497, 569 P.2d 397 (1977).
Although Thelma testified that Max was to repay her for the $69,000.00 down payment as
soon as he sold his California home, Max invested the proceeds from the sale of his home in
the couples' travel agency. Thelma's testimony, standing alone, is insufficient to rebut the
presumption of gift, especially since she knew that Max was investing the money from the
sale in the travel agency.
Thelma also claims that a $20,000.00 certificate of deposit was acquired during marriage
and is therefore presumptively community property. See NRS 123.220 (defining community
property as property acquired after marriage). Thelma argues that this presumption was not
overcome by clear and convincing evidence; therefore she maintains that the district court
erred in awarding the certificate to Max as his separate property. See Burdick v. Pope, 90
Nev. 28, 518 P.2d 146 (1974) (community property presumption can only be rebutted by clear
and certain proof).
[Headnote 5]
There was substantial evidence, however, for the district court to find that the certificate
had been acquired before the marriage.
Thus the community property presumption did not even come into operation. Thelma argues
that Max's own testimony proves that he did not have the certificate before the marriage. Max
testified that he brought $85,000.00 in cash into the marriage: $5,000.00 of this money was
invested in the couples' home; the remaining $80,000.00 was invested in the travel agency.
Max also testified, however, that the certificate was his separate property. Max could have
considered the certificate not to be cash when he testified that he had only $85,000.00 in
cash to bring into the marriage. His testimony regarding his $85,000.00 in expenditures is
hardly conclusive evidence that the certificate was acquired after marriage. We affirm the
district court's award of the $20,000.00 certificate of deposit to Max as his separate property.
[Headnotes 6, 7]
In his cross-appeal, Max contends that the district court erred in refusing to award him the
cost of Thelma's deposition. Although the district court found Max to be the prevailing party
and awarded him costs, it specifically excluded the cost of Thelma's deposition from the
award. Costs are awarded as a matter of course to the prevailing party in all actions listed in
NRS 18.020. The award of costs in a divorce and property division proceeding, however, is
discretionary with the district court. See NRS 18.050; cf. Ormachea v. Ormachea, 67 Nev.
273, 301, 217 P.2d 355 (1950) (describing property division proceeding as an equitable action
subject to discretionary assessment of costs).
[Headnote 8]
Max has failed to demonstrate a clear showing of an abuse of discretion by the district
court. We therefore decline to disturb the court's decision to withhold the cost of Thelma's
deposition.
[Headnotes 9, 10]
Accordingly, we reverse that portion of the district court's order dividing the house 60/40
in Thelma's favor. Because the district court's division of the travel agency 60/40 in Max's
favor may have been influenced by its equitable division of the house, we remand the case to
the district court so that it may modify its order in conformance with this opinion. In all other
respects, we affirm the decision below.
1

____________________

1
Thelma's remaining claim of error is without merit. Thelma claims a right of contribution for partial
payment of a community debt that she extinguished with her separate funds. Contribution is an equitable remedy,
however, and equity does not favor Thelma's claim since the debt was originally incurred for the benefit of her
separate property. See Brossard v. Sullivan, 670 P.2d 1389, 1391 (Mont. 1983). Compare Welland v. Williams,
21 Nev. 230, 234, 29 P. 403 (1892).
____________
101 Nev. 384, 384 (1985) Leeson v. Basic Refractories
ART LEESON, An Individual, The BOARD OF REVIEW For The NEVADA
EMPLOYMENT SECURITY DEPARTMENT, And The Executive Director of The
NEVADA EMPLOYMENT SECURITY DEPARTMENT, Appellants, v. BASIC
REFRACTORIES, A Subsidiary of COMBUSTION ENGINEERING, INC., Respondent.
No. 15551
August 27, 1985 705 P.2d 137
Appeal from order reversing administrative decision. Third Judicial District Court,
Churchill County; Mario G. Recanzone, Judge.
Appeal was taken by employee from an order of the district court reversing a decision of
the Board of Review of the Employment Security Department granting unemployment
benefits to employee. The Supreme Court held that decision of the Board granting
unemployment benefits to the employee because, notwithstanding statements made by
employer's representative, employee's discharge was for reasons other than misconduct was
supported by substantial evidence in record.
Reversed.
Crowell, Crowell, Crowell & Susich and Daniel O'Brien, Carson City, for Appellants.
Vargas & Bartlett and Robert W. Marshall, Reno, for Respondent.
1. Social Security and Public Welfare.
The Board of Review of the Employment Security Department is empowered to conduct a de novo
review of a decision of the appeals referee in an unemployment case, but on further review, no similar
authority is given to the district court with respect to a decision of the Board and the court must limit its
determination to whether the Board acted arbitrarily or capriciously and uphold the decision if supported
by substantial evidence in the record. NRS 612.385, 612.515, subd. 3, 612.530, subd. 4.
Decision of the Board of Review of the Employment Security Department granting unemployment
benefits to the employee because, notwithstanding statements made by employer's representative,
employee's discharge was for reasons other than misconduct was supported by substantial evidence in
record. NRS 612.385.
OPINION
Per Curiam:
This is an appeal from an order of the district court reversing a decision of the Board of
Review of the Employment Security Department {ESD).
Department (ESD). The Board's decision granted unemployment benefits to appellant Art
Leeson.
Leeson was employed by respondent Basic Refractories from September, 1976, until his
discharge in July, 1982. He subsequently applied for unemployment benefits with the ESD.
After determining that Leeson was not terminated for misconduct within the meaning of NRS
612.385,
1
the Executive Director of the ESD granted Leeson unemployment benefits.
Respondent appealed the decision to an appeals referee.
The appeals referee heard testimony on the matter during a September, 1982, telephone
conference call with Leeson and respondent's representative. The representative read
statements previously written by respondent's employees into the record. Leeson testified on
his own behalf.
On October 6, 1982, the appeals referee determined that Leeson was ineligible for
unemployment benefits because he had been discharged for misconduct. Leeson appealed the
referee's decision to the Board of Review. On February 7, 1983, the Board reversed the
appeals referee and awarded benefits. Respondent sought review in the district court. The
district court reversed the Board's decision and reinstated the decision of the referee. This
appeal followed.
Pursuant to NRS 612.515(3), the Board of Review is authorized to affirm, modify or
reverse a decision of the appeals referee. The Board may act solely on the basis of evidence
previously submitted, or upon the basis of such additional evidence as it may direct to be
taken. Id.
[Headnote 1]
The district court's power to review a decision of the Board, however, is more limited.
Where review is sought, the factual findings of the Board, if supported by evidence . . . shall
be conclusive, and the jurisdiction of the court shall be confined to questions of law. NRS
612.530(4). Our decisional law is to the same effect. We have held that, in reviewing the
decision of an administrative agency, the district court is limited to a determination of
whether the board acted arbitrarily or capriciously. State, Emp. Sec. Dep't v. Weber, 100 Nev.
121, 124, 676 P.2d 1318, 1320 (1984); McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552,
553 (1982). As we stated in Weber, [t]he question is whether the board's decision was
based on substantial evidence; neither this court nor the district court may substitute its
judgment for that of the administrative agency."
____________________

1
NRS 612.385 states:
A person is ineligible for benefits for the week in which he has filed a claim for benefits, if he was
discharged from his last or next to last employment for misconduct connected with his work, and remains
ineligible until he earns remuneration in covered employment equal to or exceeding his weekly benefit
amount in each of not more than 15 weeks thereafter as determined by the executive director in each case
according to the seriousness of the misconduct.
whether the board's decision was based on substantial evidence; neither this court nor the
district court may substitute its judgment for that of the administrative agency. 100 Nev. at
124, 676 P.2d at 1320. In short, while the Board of Review is empowered to conduct a de
novo review of the decisions of the appeals referee, the district court has no similar authority
with respect to the decisions of the Board.
The parties presented conflicting evidence concerning the reason for Leeson's termination.
The statements prepared by respondent's employees indicated that Leeson's employment was
terminated because he refused to complete assigned tasks and became belligerent with his
temporary supervisor. In contrast, Leeson testified that he attempted to complete the assigned
work, but lacked sufficient time. Leeson also testified, in effect, that the temporary supervisor
had planned to terminate him without cause as soon as Leeson's regular supervisor left on
vacation.
[Headnote 2]
Our review of the record indicates that the Board reviewed the disputed facts of this case
and determined that Leeson had not been terminated for misconduct. The record discloses
substantial evidence supporting that determination. See Lellis v. Archie, 89 Nev. 550, 553,
516 P.2d 469, 470 (1973) (misconduct defined as deliberate violation or disregard of
standards). The district court may have preferred the appeal referee's decision; it was not free,
however, to choose among the various administrative decisions or to substitute its judgment
for that of the Board. Because the Board's decision was not arbitrary, capricious, or
unsupported by substantial evidence, the district court erred in reversing the Board's
determination. State, Emp. Sec. Dep't v. Weber, 100 Nev. at 124-125, 676 P.2d at 1320.
Accordingly, we reverse the order of the district court and reinstate the decision of the
Board.
____________
101 Nev. 387, 387 (1985) Southern Nev. Mem. Hosp. v. State
SOUTHERN NEVADA MEMORIAL HOSPITAL, SPRING VALLEY COMMUNITY
HOSPITAL and HUMANA INC. dba SUBURBAN HOSPITAL MEDICAL CENTER,
Appellants and Cross-Respondents, v. STATE OF NEVADA, DEPARTMENT OF HUMAN
RESOURCES; and E. WILLIAMS HANMER, in His Capacity As Hearing Officer, S.
BARTON JACKA; JAMES SALO and WILLIAM BIBLE, Respondents and
Cross-Appellants.
No. 15627
August 27, 1985 705 P.2d 139
Appeal and cross-appeal from a judgment of the district court remanding to the
Department of Human Resources; Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Department of Human Resources issued certificate of need letters of approval to hospitals
and then rescinded them and hospitals sought review. The district court remanded the entire
matter to the Department to enter findings of fact and conclusions of law supporting initial
action of the Department and hospitals, and Department appealed. The Supreme Court held
that: (1) Department was estopped from vacating its previously issued certificate of need
letters of approval, where hospital relied to detriment on letter of approval which specified
timetable within which to act or lose authorization to proceed with project.
Robert J. Miller, District Attorney, Bill Curran, County Counsel, Johnnie B. Rawlinson,
Deputy District Attorney, Las Vegas, for Appellant Southern Nevada Memorial Hospital.
I. R. Ashleman, Las Vegas, for Appellant Spring Valley Community Hospital.
Lionel Sawyer & Collins and Dennis L. Kennedy, Las Vegas, for Appellant Humana Inc.
dba Suburban Hospital Medical Center.
Brian McKay, Attorney General, and Bryan M. Nelson, Deputy Attorney General, Carson
City, for Respondents.
1. Estoppel.
Application of equitable estoppel against a government is permitted to avoid manifest injustice and
hardship to the injured party.
2. Estoppel.
Equitable estoppel consists of four elements: party to estopped must be apprised of true facts; he must
intend that his conduct shall be acted upon or must so act that party asserting estoppel has
right to believe it was so intended; party asserting estoppel must be ignorant of true
state of facts; and he must have relied to his detriment on conduct of party to be
estopped.
acted upon or must so act that party asserting estoppel has right to believe it was so intended; party
asserting estoppel must be ignorant of true state of facts; and he must have relied to his detriment on
conduct of party to be estopped.
3. Estoppel.
Department of Human Resources was estopped from vacating certificate of need letters of approval to
hospitals where Department knew after staff consideration and recommendation that letters should be
issued to hospitals, letters specified that hospitals act within certain time and beyond that time letters were
no longer effective, hospitals immediately and justifiably commenced to diligently complete approved
projects, Department took no action to modify letters' timetable on being asked by another applicant to stay
letters of approval, hospitals were unaware of any facts tending to negate or qualify its reliance on
Department's authorization to proceed, and one hospital relied to its detriment on letter in the amount of
$173,000.
Administrative agencies cannot enlarge their own jurisdiction, nor is subject matter jurisdiction conferred
upon an agency by consent or failure to raise agency's lack of jurisdiction.
5. Hospitals.
Department of Health Services had no jurisdiction to vacate certificate of need letters of approval to two
hospitals, where unsuccessful applicants appealed denial of their applications but did not seek
reconsideration of granting of letters of approval, even though successful applicants were allowed to
intervene in the appeals. NRS 233B.140, subd. 5(f).
OPINION
Per Curiam:
This appeal and cross-appeal resulted from the district court's review of administrative
proceedings which, in the first instance, culminated in the issuance of certificates of need to
appellants Southern Nevada Memorial Hospital (Southern Nevada) and Spring Valley
Community Hospital (Spring Valley) authorizing the former to increase its bed capacity and
the latter to construct and operate an acute-care hospital. Subsequently, the aforementioned
certificates were rescinded and all applications seeking certificates of need were rejected.
After reviewing the somewhat convoluted history of the administrative proceedings, the
district court remanded the entire matter to the Department of Human Resources
(Department) to enter findings of fact and conclusions of law supporting the initial action of
the Department. Having determined that the lower court erred, reversal and remand are
necessary.
On September 12, 1980, Southern Nevada filed an application with the Department
seeking permission to expand its existing facility by the addition of 65 medical-surgical beds.
Spring Valley sought approval to construct and operate a 160 bed acute-care hospital in the
area south of Tropicana Avenue in the Spring Valley area.
Valley area. These applications for a certificate of need (CON) were filed according to the
requirements of NRS 439A and the regulations adopted pursuant thereto.
1

The above applications were consolidated for hearing by the Department together with
similar applications filed by Humana Inc. (Humana), Community Hospital, Valley Hospital,
Physicians Hospital (Physicians) and Union Medical Center (Union Med.). On March 9,
1981, Dr. Ralph DiSibio (DiSibio), then Director of the Department, followed staff
recommendations and issued decisions approving the Spring Valley and Southern Nevada
applications and denying the remainder of the applications.
2

DiSibio's CON letter approved Southern Nevada's application on the express condition
that the hospital comply with the timetables set forth in its application. Hence, Southern
Nevada had 90 days from the date of receiving approval to complete the renovation and
construction.
Approximately a month later, the majority of applicants which had received denials of
their applications filed notices of appeal pursuant to NRS 439A.105. Neither Southern
Nevada nor Spring Valley were named as a party to any of the appeals or served with notice
of the appeals. Southern Nevada first received notification of the appeals by telephone from
the Department on April 21, 1981. Eventually, on May 11, 1981, Southern Nevada received
copies of the appeals from the Department.
Subsequent to the filing of the appeals, the Department did not stay, withdraw or modify
either the letter of approval issued to Southern Nevada or the 90-day completion deadline.
This is so even though one appeal specifically requested that the letter be withdrawn pending
the appeal.
Spring Valley and Southern Nevada intervened in the appeal. James Salo (Salo) was
appointed as the Hearing Officer. A hearing was conducted on July 8, 1981, and on July 17,
1981, Salo issued his decision vacating all of DiSibio's decisions and remanding them back to
the Director of the Department to prepare findings of fact and conclusions of law in
accordance with NRS 233B.125.
3
Thereafter, A. R. Martelle {Martelle), DiSibio's
successor, undertook reconsideration of the remanded applications in their entirety and
on November 16, 19S1, entered decisions denying all applications.
____________________

1
Under NRS 439A.100, no person may construct or operate a hospital, or add a specified number of beds to
an existing hospital, without having first received the approval of the Department. This approval is known as a
Certificate of Need.

2
Ordinarily, an application would be reviewed by a Health Systems Agency (HSA) and its recommendation
would be given to the Director of the Department. In this case, due to recent legislative changes, no HSA had
been designated. Therefore, the Department's staff handled the review process.

3
While DiSibio's decision did not elaborate as to the underlying basis for his decision as required by NRS
233B.125, the Department's staff recommendations did contain an in-depth analysis.
Thereafter, A. R. Martelle (Martelle), DiSibio's successor, undertook reconsideration of
the remanded applications in their entirety and on November 16, 1981, entered decisions
denying all applications.
On August 27, 1982, E. Williams Hanmer (Hanmer) conducted a hearing on the
administrative appeals of Southern Nevada, Spring Valley, Humana, Physicians and Union
Med. Southern Nevada argued that the Department should be estopped from changing its
position after Southern Nevada had acted in reliance upon it. On December 15, 1982, Hanmer
affirmed Martelle's decision which denied all of the applications. Southern Nevada, Spring
Valley and Humana thereafter sought judicial review.
After hearing the issues, the district court determined that DiSibio's initial decision was
correct but that a remand to the Department was necessary for purposes of entering findings
of fact and conclusions of law in support of the DiSibio decision. Our review of the record
convinces us that Salo, Martelle and Hanmer abused their discretion in violation of NRS
233B.140(5)(f). We accordingly agree with the district court that the Department's first
decision was appropriate and must be sustained. However, we are also persuaded that it was
improper to remand the matter to the Department. For reasons hereafter specified, we
therefore conclude that the CON letters of approval to Southern Nevada and Spring Valley
must be reinstated.
[Headnote 1]
While courts have traditionally held that a government could not be estopped while acting
in a governmental capacity, the modern trend permits the application of equitable estoppel
against a government to avoid manifest injustice and hardship to the injured party. See, e.g.,
State v. Sponburgh, 401 P.2d 635 (Wash. 1965); United States v. Lazy FC Ranch, 481 F.2d
985 (9th Cir. 1973); Nevada Public Employees Retirement Board v. Byrne, 96 Nev. 276, 607
P.2d 1351 (1980).
In Byrne, supra, this Court, upon rejecting the State Board's argument that the claimant
could not rely on certain benefit computations supplied him by the board, stated:
The doctrine of equitable estoppel, as applied to governmental agencies, is rooted in
concepts of justice and right, and is premised on the idea that the sovereign is
responsible: a citizen has a legitimate expectation that the government should deal
fairly with him or her. [Citations omitted.]
96 Nev. at 280.
[Headnote 2]
Moreover, in Sponburgh, supra, 401 P.2d at 640, the court applied the doctrine of
equitable estoppel to estop the state's Liquor Control Board from reversing its decision
approving the licensee's application for change of location after the licensee had spent
large sums of money acquiring and remodeling the new location.
Liquor Control Board from reversing its decision approving the licensee's application for
change of location after the licensee had spent large sums of money acquiring and remodeling
the new location. The court concluded that:
The doctrine of equitable estoppel is properly applicable in a case such as this,
otherwise the whim of an administrative body could bankrupt an applicant who acted in
good faith in reliance upon a solemn written commitment.
. . . .
The conduct of government should always be scrupulously just in dealing with its
citizens; and where a public official, acting within his authority and with knowledge of
the pertinent facts, has made a commitment and the party to whom it was made has
acted to his detriment in reliance on that commitment, the official should not be
permitted to revoke that commitment.
This Court recently held in Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 655 P.2d
996 (1982), that equitable estoppel has been characterized as consisting of four elements:
(1) the party to be estopped must be apprised of the true facts; (2) he must intend that
his conduct shall be acted upon, or must so act that the party asserting estoppel has the
right to believe it was so intended; (3) the party asserting the estoppel must be ignorant
of the true state of facts; (4) he must have relied to his detriment on the conduct of the
party to be estopped.
Whether these elements are present, thereby justifying application of the doctrine of equitable
estoppel, depends upon the particular facts and circumstances of a given case. Based upon our
review of the record, Southern Nevada was entitled to prevail under its theory of estoppel.
[Headnote 3]
Inasmuch as the Department was the only agency permitted to approve or deny the
applications, it certainly knew, after staff consideration and recommendation, whether the
certificate of need should be issued to Southern Nevada.
The Department issued its letter of approval to Southern Nevada on March 9, 1981. The
CON letter was of the type the Department was specifically authorized to issue and upon
which it expected an applicant to take action. This document was the agency's express and
official authorization to perform a specified act within a certain time; at the end of that time,
the letter was no longer effective. Moreover, the letter was subject to withdrawal by the
Department unless it determined that the applicant had made satisfactory progress in meeting
the Department's timetable.
ble. Therefore, Southern Nevada immediately and justifiably commenced with diligence to
complete the approved project.
The Department's regulations do provide for the modification of a timetable in a
previously approved application for a CON or letter of approval.
4
In compliance with those
regulations, the Department has the responsibility to determine whether reasons exist that
justify staying or modifying a timetable in a previously issued letter of approval. Litigation
has been expressly recognized by the Department as constituting sufficient reason to modify a
timetable. In the instant case, the Department was specifically asked to stay the Southern
Nevada letter of approval by one of the applicants, yet took no action.
The Department's inaction left Southern Nevada in the unfortunate position of choosing
whether to adhere to the regulations and deadline, possibly to its detriment, or not to adhere to
them, again possibly to its detriment. Since the Department had the right and responsibility to
modify the timetable if need existed, Southern Nevada was entitled to believe that the
Department intended that the project proceed in accordance with the specified date.
It is apparent that Southern Nevada was unaware of any facts tending to negate or qualify
its reliance on the Department's CON authorization to proceed with the project of expansion.
The Department had placed its imprimatur on Southern Nevada's application after due
consideration and deliberation. At no time prior to the subsequent denial of all applications by
DiSibio's successor did the Department direct Southern Nevada to discontinue the work
prosecuted under the Department's CON authorization.
The final element of equitable estoppel is that of detrimental reliance. Southern Nevada
acted in good faith and justifiably relied upon the Department's conduct. By so doing,
Southern Nevada expended over $173,000.
____________________

4
The regulations provide, in relevant part, as follows:
5.6 Modification of timetable
5.6.1 Where the department has determined, after consultation with the applicant and the appropriate
health systems agency, that good and sufficient reasons exist for a failure to meet the timetable,
the department may modify it.
5.6.1.1 Good and sufficient reasons include delays incurred as the results of:
(a) Litigation;
(b) Actions of governing bodies and regulatory agencies, other than the department; and
(c) Other events deemed by the department to be beyond the control of the holder of the letter
of approval.
5.6.2 The department will notify all affected except the public by mail when a timetable is modified or
a letter of approval is withdrawn and will notify the general public by a notice in a newspaper of
general circulation in the area involved.
Nevada expended over $173,000. The expenditure of such funds constitutes a detriment to
Southern Nevada.
As noted above, the elements of equitable estoppel have been satisfied. While
governmental subdivisions may be estopped from asserting a right or defense which it
otherwise could have raised, courts are still concerned with the public policy aspects of
estopping governmental agencies. The circumstances surrounding this case are of such a
nature that this type of situation is unlikely to arise again.
5
Accordingly, such public policy
considerations are not diminished by our ruling. See City of Imperial Beach v. Algert, 200
Cal.App. 48, 19 Cal.Rptr. 144 (1962); City of Long Beach v. Mansell, 476 P.2d 423 (Cal.
1970). Indeed, the invocation of equitable estoppel in the context of this case arguably
enhances public policy. Southern Nevada is responsible for all resident indigent and
emergency medical care in Clark County. By utilizing those beds that have been readied over
four years ago, Southern Nevada will be able to recover some of the expenses already
incurred. Moreover, if the beds remain useless, while additional beds are needed, then
Southern Nevada would be required to divert indigent emergency care to private hospitals and
reimburse them for their services at the expense of the Clark County taxpayers. Washoe
County v. Wittenberg, 100 Nev. 143, 676 P.2d 808 (1984). Therefore, the Department should
be estopped from vacating its previously issued CON letter of approval to Southern Nevada.
[Headnotes 4, 5]
Moreover, the State of Nevada provided for both an appeal hearing and a reconsideration
hearing as a means of assuring the propriety of the Department's decisions. Since the
unsuccessful applicants sought relief from DiSibio's decision via an improper avenue, the
Department was without jurisdiction to vacate the letters of approval awarded to Southern
Nevada and Spring Valley.
Rule 6 of the Department's regulations provides that any person may request a public
hearing for good cause shown to have a reconsideration of the decision following the
Department's decision concerning the issuance or denial of a letter of approval (emphasis
added). The above request must be made within 30 days of the agency's decision and the
hearing is conducted by the Director of the Department. On the other hand, article 7.1.1 of the
Department's regulations specifies that appeal hearings are only allowed to the applicant or
the health system agency whose recommendation is overturned by the Director.
____________________

5
Notwithstanding Southern Nevada's expenditure, the Department's conduct and the extremely short
renovation deadline, in August of 1982, the Department adopted a new regulation which automatically stays the
effectiveness of any future letter of approval upon the filing of an appeal by any other applicant.
agency whose recommendation is overturned by the Director. This request for an appeal must
be made within 30 days after the Department's decision. Appeals are heard before an
appointed hearing officer.
6

In light of the foregoing separate and distinct systems of review, it is clear that the
unsuccessful applicants desiring revocation of the CON issued by DiSibio to Spring Valley
and Southern Nevada, should have sought a reconsideration hearing. Instead, they proceeded
by way of appeal. Of course, neither successful applicant appealed the granting of its letter of
approval. A hearing officer has jurisdiction over parties that appeal. Accordingly, Salo had no
jurisdiction to review the applications of Spring Valley and Southern Nevada. The fact that
Spring Valley and Southern Nevada were allowed to intervene in the appeals almost three
months after the issuance of their CON approvals did not confer upon the hearing officer
subject matter jurisdiction concerning the CON letters. The 30-day jurisdictional period had
long since expired. Administrative agencies cannot enlarge their own jurisdiction nor is
subject matter jurisdiction conferred upon an agency by consent or failure to raise the
agency's lack of jurisdiction. See Andrews v. Nev. St. Bd. of Cosmetology, 86 Nev. 207, 467
P.2d 96 (1970); Jasper v. Jewkes, 50 Nev. 153, 254 P. 698 (1927); Britz v. Consolidated
Casinos Corp., 87 Nev. 441, 488 P.2d 911 (1971). Therefore, in accordance with the above
cited cases and NRS 233B.140(5)(f), the Department's decisions concerning the Spring
Valley and Southern Nevada CON approvals are of no effect.
We have considered the remaining contentions of error raised by the parties and consider
them to be without merit. Accordingly, we remand this matter to the district court to reinstate
the letters of approval granted to Spring Valley and Southern Nevada and to enter judgment
in accordance with this opinion.
____________________

6
Nevada initially proposed regulations to the Department of Health and Human Services of the United States
Government which provided for an independent hearing officer to hear both the reconsideration and appeal
hearings. The federal government recognized and approved the different hearings, but required that the
Department, and not an independent hearing officer, render the decision on the reconsideration hearings in order
to comply with 42 CFR 123.407(a)(8)-(a)(10). The State of Nevada accordingly changed its original draft
regulations in order to comply with the federal requirements.
____________
101 Nev. 395, 395 (1985) Brunzell v. Lawyers Title
EVERETT BRUNZELL, Appellant, v. LAWYERS TITLE INSURANCE
CORPORATION, a Virginia Corporation, Respondent.
No. 15671
August 27, 1985 705 P.2d 642
Appeal from order requiring appellant to release condominium units from a mechanic's
lien upon payment of a pro rata share of the judgment for each unit. Second Judicial District
On remand from the Supreme Court, 99 Nev. 710, 669 P.2d 714, judgment foreclosing
mechanic's lien on a condominium development was entered, and lienor ordered to release
lien on each condominium unit upon receipt of pro-rata payment of judgment, by the district
court lienor appealed. The Supreme Court held that the judgment was properly apportioned
among all 72 units of the condominium project, where the mechanic's lien was a blanket lien
on the entire development and each unit was equally benefited by lienor's work and material,
even though 36 of the units were not subject to the lien when lienor sought to enforce
judgment.
Affirmed.
Hill, Cassas, de Lipkau and Erwin, Reno, for Appellant.
Henderson & Nelson, and James M. Walsh, Reno, for Respondent.
Purpose of mechanic's lien statute is to permit lien upon premises where benefit has been received and
provide payment of claims of builders, mechanics and materialmen out of property to which their work and
material have contributed and increased value. NRS 117.080.
As general principle a blanket lien cannot be enforced against less than all of the tracts or parcels.
Apportionment of judgment foreclosing a mechanic's lien against a condominium development among all
72 units, allowing each unit to be released upon payment of its proportionate share of the judgment, was
proper.
OPINION
Per Curiam:
In a previous opinion, this Court affirmed a judgment for appellant Everett Brunzell
foreclosing a mechanic's lien against the Eagle's Nest condominium development in Reno.
Eagle's Nest v. Brunzell, 99 Nev. 710
Nest v. Brunzell, 99 Nev. 710, 669 P.2d 714 (1983) (Brunzell I). We remanded with
instructions to add to the judgment appropriate prejudgment interest and attorney's fees. Id.
Following the district court's recalculation of his award, Brunzell demanded satisfaction of
the entire judgment from respondent Lawyers Title Insurance Corporation (LTI). LTI is the
title insurance carrier for thirty-six
1
of the seventy-two units in the development. LTI issued
the title insurance policies after Brunzell filed the mechanic's lien and with actual knowledge
of it. Nine other units were sold to third parties before Brunzell filed his lien and were not
subject to it. A prior deed of trust on the remaining twenty-seven units had been foreclosed
thereby extinguishing Brunzell's lien. LTI offered to pay Brunzell 1/72nd of the judgment for
each unit it insured in exchange for the release of that unit from the lien. Brunzell rejected the
offer. Brunzell then initiated a sheriff's sale of several units. LTI sought and obtained an
injunction restraining Brunzell from going forward with the sheriff's sale. On March 1, 1984,
the district court ordered Brunzell to release the lien on each unit upon receipt of payment of
1/72nd of the judgment. On April 20, 1984, LTI tendered 36/72nds of the judgment to
Brunzell and the district court entered an order releasing and discharging the lien on the
thirty-six units insured by LTI. Brunzell then brought this appeal.
Brunzell suggests that apportionment is not an available remedy in the instant case. We
disagree. We hold that apportionment of a lien arising out of the original construction of a
condominium project is consistent with the principles underlying mechanics' liens.
2

[Headnotes 1, 2]
The purpose of the mechanic's lien statute is to permit a lien upon premises where benefit
has been received. . . . Kobayashi v. Meehleis Steel Co., 472 P.2d 724, 727 (Colo.App.
1970). See also Young Elec. Sign Co. v. Erwin Elec. Co., 86 Nev. 822, 825, 477 P.2d 864,
866 (1970). That is, the property that has been improved stands as security for payment of the
costs of the improvement. Lien statutes provide for the payment of the claims of builders,
mechanics and materialmen out of the property to which their work and material have
contributed an increased value."
____________________

1
At different points in the record, it appears that LTI insured either thirty-five or thirty-six of the Eagle's Nest
units. For the purposes of this opinion, we will assume that the correct number is thirty-six.

2
The district court held that NRS 117.080 required apportionment of Brunzell's lien. NRS 117.080 provides
for apportionment of liens based upon work requested by an individual condominium unit owner or owners. E.D.
McGillicuddy Const. Co. v. Knoll Rec. Ass'n, Inc., 31 Cal.App.3d 891 (1973) (interpreting a statute identical to
NRS 117.080). NRS 117.080 does not apply to liens, such as the lien in the case at bar, predicated upon work
done in the original construction of a condominium development. Id.
claims of builders, mechanics and materialmen out of the property to which their work and
material have contributed an increased value. Williams Bros. Const. v. Vaughn, 631 P.2d
688, 690 (Mont. 1981) (citing Smith v. Gunniss, 144 P.2d 186, 189 (Mont. 1943).
Apportionment of a blanket lien arising out of the construction of an entire development
furthers this purpose. Apportionment ensures that certain property, here a condominium unit,
which is liable for the costs of its own improvement will not also be liable for the
improvement costs of other property. We note that as a general principle, a blanket lien
cannot be enforced against less than all of the tracts or parcels. See Annots. 68 A.L.R.3d
1300, 2.
[Headnote 3]
We hold that the district court properly apportioned the judgment among all seventy-two
units in the Eagle's Nest project. Brunzell was aware that he was constructing a multi-unit
condominium development. There is no evidence that the entire cost of the project is not
equally divisible among all the units. Ten of the individual units had been sold before
Brunzell filed the mechanic's lien. The lien was extinguished as to twenty-seven units due to
foreclosure of a prior deed of trust. This Court has held,
One who undertakes construction of improvements on real property that is subject to a
recorded mortgage or deed of trust does so with constructive notice of the prior
encumbrance, and any mechanics' liens that may arise out of the construction of the
intended improvements are junior and subordinate to the earlier recorded mortgage or
deed of trust.
Erickson Constr. Co. v. Nevada Nat'l Bank, 89 Nev. 350, 353, 513 P.2d 1236, 1238 (1973).
Brunzell took the risk that any lien he might file would be lost due to foreclosure of the prior
deed of trust. Thus, for reasons beyond the control of the individual owners of the thirty-six
units insured by LTI, only their units remained subject to Brunzell's lien when he sought to
enforce the judgment. To allow Brunzell to recover the entire amount of the judgment from
one-half of the units would be inconsistent with the purpose of mechanics' liens.
For these reasons we affirm the judgment of the district court. See Hotel Riviera Inc. v.
Torres, 97 Nev. 399, 632 P.2d 1155 (1981) (if result below is correct it will not be disturbed
on appeal even though the district court relied upon wrong reasons). Appellant's remaining
contentions have been considered and found to be without merit. Accordingly, we affirm.
____________
101 Nev. 398, 398 (1985) Downer v. State, Dep't Human Res.
PAULINE DOWNER, Appellant, v. STATE OF NEVADA, DEPARTMENT OF
HUMAN RESOURCES, WELFARE DIVISION, Respondent.
No. 15718
August 27, 1985 705 P.2d 144
Appeal from a district court order affirming the denial of medical benefits; Second Judicial
Denial of medicaid benefits by Welfare Division was affirmed by the district court and
applicant appealed. The Supreme Court held that evidence that 90-year-old patient
contemplating imminent death transferred $2,500 to daughter and son-in-law in return for
taking care of him but survived and was placed in a convalescent home was sufficient to
show that patient could not have anticipated when he made his transfers that application for
medicaid benefits would be filed on his behalf and therefore was entitled to the benefits.
Reversed.
Sharon E. Claassen, Nevada Indian Rural Legal, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Wilbur H. Sprinkel, Deputy, Carson City,
for Respondent.
Applicant for medicaid benefits is entitled to rebut presumption that transfer of funds was made to obtain
medical eligibility when he can provide convincing evidence that at time of transfer he could not anticipate
becoming eligible due to existence of other circumstances which would have precluded eligibility. Social
Security Act, 1917(c), as amended, 42 U.S.C.A. 1396p(c).
Evidence that 90-year-old patient who had been hospitalized 11 days and was contemplating imminent
death transferred $2,500 to his daughter and son-in-law to repay them for taking care of him and that
patient survived and had to be placed into a convalescent home was sufficient to show that patient could
not have anticipated that application for medicaid benefits would be filed on his behalf when he made his
transfers and therefore was entitled to benefits.
OPINION
Per Curiam:
This appeal is from a district court order affirming the denial of medicaid benefits by the
Welfare Division. The Division's denial was predicated on a transfer of assets by the
applicant ten days prior to applying for medical benefits.
101 Nev. 398, 399 (1985) Downer v. State, Dep't Human Res.
days prior to applying for medical benefits. The district court affirmed the denial, determining
the evidence was insufficient to rebut the presumption, under 904.4C of the Nevada
Medical Eligibility Manual, that the transfer was for the sole purpose of obtaining medical
eligibility. Because our review of the record indicates there was sufficient evidence to rebut
the presumption, we reverse the district court order and remand the application to the Welfare
Division for a re-evaluation.
[Headnote 1]
An applicant is entitled to rebut the presumption that a transfer of funds was made to
obtain medical eligibility when he can provide convincing evidence that at the time of
transfer the individual could not anticipate becoming eligible due to existence of other
circumstances which would have precluded eligibility. 20 C.F.R. 416.1246(e) (1984).
[Headnote 2]
The facts as found in the record present precisely this kind of evidence. On January 14,
1983, having been hospitalized eleven days and contemplating imminent death,
ninety-year-old Raymond Tate transferred to his daughter and to his son-in-law (the
Downers) the sum of $1,250.00 each. This was to repay the Downers for taking care of Mr.
Tate and, in part, was to be used to help make repairs on their trailer. Mr. Tate survived,
however, and was placed in a convalescent home. Because of the Downers' impoverished
state, and in response to growing medical bills, Mrs. Downer, on behalf of her father, applied
for Medicaid/State Aid to the Medically Indigent, through the State of Nevada, Department of
Human Resources, Welfare Division.
We believe that Mr. Tate could not have anticipated that an application for Medicaid
benefits would be filed on his behalf when he made his transfers because he believed his
death was imminent. Moreover, we do not believe Mr. Tate should be penalized because the
evidence shows that by the time he died, the Downers had used the entire amount to off-set a
portion of his medical bills. The use of the transferred money to defray the costs of medical
care of Mr. Tate is consistent with Congress' stated purpose in enacting the transfers of asset
provision, 42 U.S.C.A. 1396p(c). S. Rep. No. 494, 97th Cong., 2d Sess. 38, reprinted in 1982
U.S. Code Cong. & Ad. News 814.
Therefore, we reverse and remand this matter to the district court with instructions to
direct the Division to calculate and pay the Medicaid benefits owed to Raymond Hunter Tate.
____________
101 Nev. 400, 400 (1985) Stockton Kenworth v. Mentzer Detroit Diesel
STOCKTON KENWORTH, INC., a California Corporation, Appellant, v. MENTZER
DETROIT DIESEL, INC., a Nevada Corporation, Respondent.
No. 15770
August 27, 1985 705 P.2d 145
Appeal from judgment which subordinated appellant's security interest in motor vehicle to
respondent's garageman's lien and awarded costs and attorney's fees to respondent; Second
Judicial District Court, Washoe County; William N. Forman, Judge.
Seller of tractor-truck, which had not made report of sale of truck to California nor to
Nevada, brought action against garage corporation which held garageman's lien on truck for
motor repairs done. Garage corporation offered to have judgment taken against it, but seller
did not accept offer. The district court entered judgment in favor of garage corporation and
awarded costs and attorney fees on ground corporation had made valid offer of judgment.
Seller appealed. The Supreme Court held that: (1) offer for judgment was not valid under rule
providing for award of costs and attorney fees to offeror if judgment finally obtained by
offeree is not more favorable than offer, where offer was conditional; (2) supposed offer for
judgment was indefinite and conditional; and (3) seller's security interest would be
subordinated to garageman's lien.
Manoukian, Scarpello and Alling, and Kelly R. Chase, Carson City, for Appellant.
Paul J. Williams, Reno, for Respondent.
1. Secured Transactions.
Words secured transaction, as used in NRS 108.290, providing that lien in excess of $750 is
secondary lien when motor vehicle is the subject of a secured transaction, means perfected security
interests only.
Rules of NRS 104.9301, governing priority over unperfected security interests and rights of lien
creditor, are both equitable and preferred.
Under NRS 104.9301, governing priority over unperfected security interest and rights of lien creditor,
an unperfected security interest is given lower priority status than a lien creditor.
Intent of drafters of the Uniform Commercial Code was that perfection, and the attendant notice,
providing recordation, is the only method to insure priority.
5. Costs.
Conditional offer for judgment is not valid under Rule 68, providing for award of attorney fees
and costs to offeror if judgment finally obtained by offeree is not more favorable than
that offered.
for award of attorney fees and costs to offeror if judgment finally obtained by offeree is not more favorable
than that offered. NRCP 68.
6. Costs.
Offer for judgment must be for a definite or ascertainable amount, so that parties can be unequivocally
aware of what defendant is willing to pay for his peace, for provisions of Rule 68, providing for award of
costs and attorney fees to offeror if judgment finally obtained by offeree is not more favorable than offer, to
apply. NRCP 68.
7. Costs.
Offer for judgment must be unconditional, for Rule 68, providing for award of costs and attorney fees to
offeror if final judgment is not more favorable than offer to offeree, to apply. NRCP 68.
8. Costs.
Offer of judgment which would have required seller of tractor-truck seeking possession of it to obtain in
some fashion good title to vehicle as a condition precedent to receiving payment from garage corporation
which had done repairs on vehicle was indefinite and conditional offer; thus, attorney fees and costs would
not be awarded to corporation under Rule 68, providing that after offer of judgment has been made, if
judgment finally obtained by offeree is not more favorable than the offer, offeree shall pay costs and
attorney fees of offeror. NRCP 68.
Security interest of seller of tractor-truck, which was not reported in California nor in Nevada, would be
subordinated to garageman's lien for motor repairs garage corporation had done on truck. NRS
104.9301, 108.290, 482.423.
OPINION
Per Curiam:
On October 1, 1976, appellant Stockton Kenworth sold a new Kenworth tractor-truck to
one Harold Nixon. As partial consideration for the purchase, Nixon executed a note and
security agreement in favor of Stockton Kenworth. The agreement provided that if Nixon
failed to make payments, Stockton Kenworth could repossess the vehicle. The sale took place
in Nevada, as Stockton Kenworth delivered the truck in this state. Stockton Kenworth did not
make a report of sale to the California State Board of Equalization, nor was there a report of
sale in Nevada as required by NRS 482.423.
In December, 1978, Nixon brought the truck to respondent, Mentzer, for extensive motor
repairs. Mentzer performed the repairs, then notified Nixon that the truck was ready to be
picked up and that the repair bill was $10,403.01. From that point forward, Nixon's
whereabouts have remained a mystery.
In May, 1980, Mentzer notified Stockton Kenworth that unless the repair bill was paid by
June 6, 1983, they would sell the truck at auction to satisfy the garageman's lien. Stockton
Kenworth filed a complaint, and a writ of possession was issued for the truck. Mentzer's
motion to quash the writ was denied.
Thereafter, on February 4, 1982, Mentzer offered to have judgment taken against it
pursuant to NRCP 68. Stockton Kenworth did not accept the offer and the case proceeded to
trial. The district court filed a judgment in favor of Mentzer on January 26, 1984. The court
authorized the vehicle to be sold at auction to satisfy Mentzer's garageman's lien, with the
balance of the proceeds to go to Stockton Kenworth. The court also issued an order awarding
Mentzer its attorney's fees and costs because it concluded that Mentzer had made a valid
offer pursuant to NRCP 68, and that judgment ultimately rendered by the court was not more
favorable to Stockton Kenworth than the offer.
[Headnote 1]
In this appeal, we must interpret the language of NRS 108.290.
1
The trial court concluded
that the words secured transaction, as used in the statute, mean perfected security interest
only. We agree.
[Headnotes 2-4]
If we were to interpret the words secured transaction as encompassing both perfected
and unperfected security interest, the result would be that a garageman who undertook to
perform repairs or offer other services in excess of $750, could never be certain that there was
not an unrecorded security interest potentially superior to his. The drafters of Article 9 of the
U.C.C. clearly foresaw priority disputes of this type and provided suggested rules. For
example, NRS 104.9301 provides:
104.9301 Persons who take priority over unperfected security interests; right of
lien creditor.
1. Except as otherwise provided in subsection 2, an unperfected security interest is
subordinate to the rights of:
(a) Persons entitled to priority under NRS 104.9312.
(b) A person who becomes a lien creditor before the security interest is perfected.
. . . .
3. A lien creditor means a creditor who has acquired a lien on the property
involved by attachment, levy or the like and includes an assignee for benefit of creditors
from the
____________________

1
NRS 108.290 reads:
108.290 Lien in excess of $750 is secondary lien; limitation on lien of keepers of trailer parks.
1. Except as provided in subsection 2, any lien in excess of $750 acquired as provided in NRS
108.270 to 108.360, inclusive, is a secondary lien when the motor vehicle, airplane, motorcycle, time of
assignment, and a motor or airplane equipment, or trailer in question is the subject of a secured
transaction.
. . . .
(Emphasis added) (The statute as worded when this controversy arose was identical except that the amount of
the statutory exception was then $300.)
time of assignment, and a trustee in bankruptcy from the date of filing of the petition or
a receiver in equity from the time of appointment.
. . . .
(Emphasis added). The rules of NRS 104.9301 are both equitable and preferred. Under NRS
104.9301 an unperfected security interest such as exists in the instant case is given lower
priority status than a lien creditor. This comports with the drafters' intent that perfection (and
the attendant noticeproviding recordation) is the only method to insure priority. Under the
U.C.C. rule of priority, a potential lien creditor can search the appropriate records and find
any potentially superior liens.
Before 1965, when this state adopted the U.C.C., NRS 108.290 referred to motor vehicles
that were the subject of a conditional sales agreement. Under a conditional sale no interest
passed to the buyer until the contract was satisfied, and until then the seller retained title.
Therefore a potential lien creditor was put on notice of possible superior liens by virtue of the
buyer's lack of title as well as by the public record.
We find no indication of legislative intent to change the status quo. Yet, if we interpret
NRS 108.290 to encompass both perfected and unperfected security interests, such an
interpretation would mean a change in the status quo from pre-U.C.C. days. We conclude the
trial court properly ruled that NRS 108.290 refers only to perfected security interests. A
potential lien creditor is entitled to notice of any superior liens.
The trial court issued an order awarding Mentzer its attorney's fees and costs, ruling that
Mentzer had made a valid offer pursuant to NRCP 68.
2
The offer read:
Pursuant to Rule 68, Nevada Rules of Civil Procedure, Defendant, MENTZER
DETROIT DIESEL, INC., hereby offers judgment to be taken against it pursuant to the
Complaint filed herein as follows: that Plaintiff transfer title to the personal property
subject of the Complaint and that Defendant be ordered to pay Plaintiff the sum of
TEN THOUSAND and noJ100 DOLLARS {$10,000.00) upon receipt of a good title to
the vehicle.
____________________

2
RULE 68. OFFER OF JUDGMENT
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon
the adverse party an offer to allow judgment to be taken against him for the money or property or to the
effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the
adverse party serves written notice that the offer is accepted, either party may then file the offer and
notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment.
An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a
proceeding to determine costs. If 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. . . .
Defendant be ordered to pay Plaintiff the sum of TEN THOUSAND and no/100
DOLLARS ($10,000.00) upon receipt of a good title to the vehicle.
[Headnote 5]
Stockton Kenworth contends that the offer was not valid under NRCP 68 because it was
conditional. We agree.
[Headnotes 6, 7]
In addition to other requirements, the offer must be for a definite or ascertainable amount
so that the parties can be unequivocally aware of what the defendant is willing to pay for his
peace. [T]he offer must specify a definite sum for which judgment may be entered, which
plaintiff can either accept or reject. It must be unconditional. . . . Wright and Miller, Federal
Procedure Ch. 9 3002; Tansey v. Transcontinental & Western Air, 97 F.Supp. 458, 459
(D.D.C. 1949) (offer of judgment did not specify a definite sum; therefore the offer would not
under the rule prevent award by the court of plaintiff's costs).
[Headnotes 8, 9]
The supposed offer in this case would have required Stockton Kenworth to obtain in some
fashion a good title to the vehicle as a condition precedent to receiving payment from
Mentzer. We hold that such offer was indefinite and conditional and therefore not an offer
within NRCP 68. The award of attorney's fees and costs is reversed; the judgment of the trial
court is affirmed in all other respects.
____________
101 Nev. 405, 405 (1985) Dep't Ind. Relations v. Circus Circus
DEPARTMENT OF INDUSTRIAL RELATIONS, an Administrative Agency of the
State of Nevada, JAMES I. BARNES, Director; DIVISION OF INDUSTRIAL
INSURANCE REGULATION, an Unchartered Sub-Agency of the State of Nevada,
WILLIAM V. DAGGETT, Administrator; JOHN C. DE GRAFF, Appeals Officer,
Department of Administration, State of Nevada; CATHERINE FOUGHT and LINDA
BUZICK, Real Parties in Interest, Appellants, v. CIRCUS CIRCUS ENTERPRISES,
INC., a Nevada Corporation, Respondent.
No. 15812
LINDA BUZICK and CATHERINE FOUGHT, Real Parties in Interest, Appellants, v.
CIRCUS CIRCUS RENO, INC., a Nevada Corporation; WILLIAM N. PENNINGTON,
President of Circus Circus Reno, Inc.; CIRCUS CIRCUS ENTERPRISES, INC.; and
WILLIAM N. PENNINGTON, President of Circus Circus Enterprises, Inc.,
Respondents.
No. 15845
LINDA BUZICK and CATHERINE FOUGHT, Real Parties in Interest, Appellants, v.
CIRCUS CIRCUS RENO, INC., a Nevada Corporation; and WILLIAM N.
PENNINGTON, President of Circus Circus Reno, Inc.; CIRCUS CIRCUS
ENTERPRISES, INC., and WILLIAM N. PENNINGTON, President of Circus Circus
Enterprises, Inc., Respondents.
No. 15846
August 27, 1985 705 P.2d 645
Consolidated appeals from judgments invalidating administrative orders, Second Judicial
District Court, Washoe County; Richard C. Minor, Judge.
Workers' compensation claimants and state hearing officer petitioned for order to show
cause why self-insured employer should not be held in contempt for its refusal to obey
hearing officer's order to pay benefits. The district court denied the petition, and the
Department of Industrial Insurance and claimants appealed. The Supreme Court held that: (1)
a self-insured employer must make prompt payment of benefits to employees once a hearing
officer has so ordered, absent a stay of such order; (2) District Court had jurisdiction to
consider failure of employer to comply with hearing officer's order; and (3) since
inappropriate scheme to defeat benefits was apparently conceived by employer's legal
counsel, rather than employer itself, Department could appropriately consider relieving
employer from fine imposed for noncompliance.
employer's legal counsel, rather than employer itself, Department could appropriately
consider relieving employer from fine imposed for noncompliance.
Reversed.
David M. Norris, Dept. of Industrial Relations, Carson City; Brian McKay, Attorney
General, Carson City; Barbara Gruenewald, State Industrial Attorney, Carson City, for
Appellants Fought and Buzick.
Matthew H. Feiertag, Assoc. General Counsel for Amicus Curiae, State Industrial
Insurance System.
McGroarty and Hanmer, Las Vegas, for Respondent Circus Circus Enterprises, Inc.
Indisputable policy of State Industrial Insurance System is to comply with a hearing officer's order, unless
a stay is granted.
Whether employer that accepts advantages of becoming a self-insurer of workers' compensation benefits
must also obey a hearing officer's order to pay such benefits absent a stay is a procedural question requiring
an independent appellate review, as opposed to a more deferential standard of review.
Self-insured employer must make prompt payment of workers' compensation benefits to an employee
once a hearing officer has so ordered, absent a stay of such order. NRS 616.272, 616.515.
District court had jurisdiction to consider employees' petition for order to show cause why their employer
should not be held in contempt for its refusal to obey hearing officer's decision, where employees properly
exhausted their administrative remedies by requesting protection from employer's withholding of benefits
before the hearing officer, the appeals officer and, on previous occasions, the district court.
Where employer's legal counsel, rather than employer itself, conceives an inappropriate strategy for
defeating a workers' compensation claim which results in imposition of fine upon employer, Department of
Industrial Insurance Regulation can appropriately consider relieving employer from fine imposed.
OPINION
Per Curiam:
These consolidated appeals arise out of a refusal by a self-insured employer, Circus Circus
Enterprises, Inc. (Circus Circus), a hotel/casino, to comply with a hearing officer's order
requiring Circus Circus to pay worker's compensation benefits to its employees Fought and
Buzick.
its employees Fought and Buzick. Because we agree with appellants that, absent a stay, a
self-insured employer must comply with a hearing officer's order to pay benefits, we reverse.
Facts and Procedural Background
The facts in these appeals are not in dispute. Circus Circus elected to be a self-insured
employer under the Nevada Industrial Insurance Act. As such, Circus Circus has accepted
the responsibility for the payment of compensation to its employees. NRS 616.112.
Employees Fought and Buzick were both employed in the casino operations of Circus Circus,
as card dealers of the game commonly known as 21 and as Blackjack. Each filed worker's
compensation claims with Circus Circus, alleging that a result of the repeated wrist
movements they utilized as card dealers for Circus Circus, they suffered from carpal tunnel
syndrome. Carpal tunnel syndrome results from damage to the nerve which passes through
the wrist into the hand. The damage, loss of sensation in the fingers, is commonly caused by
repeated movements of the wrist. Circus Circus denied each employee's claim on the ground
that neither employee had sustained an accident or injury compensable under our worker's
compensation laws. Fought and Buzick each filed a timely appeal of the denial by Circus
Circus to a state hearing officer, in accordance with the two-layered statutory scheme.
The hearing officer conducted a hearing on each employee's claim, in which he heard the
testimony, considered the evidence, and determined that the claims were compensable as an
occupational disease. The hearing officer reversed the claim denials, and remanded each case
to Circus Circus to accept the claim and pay benefits.
Circus Circus then applied to the hearing officer for a stay of the orders to pay benefits to
the employees. The basis of this stay was that the cases needed to be resolved in a definitive
manner. The hearing officer denied the request for a stay in both actions. On the same day it
applied for the stay, Circus Circus filed a timely appeal of the hearing officer's decision with
the next layer of administrative review, the appeals officer. Because they had not yet been
paid any worker's compensation benefits, Fought and Buzick filed with the appeals officer a
motion for order to show cause why Circus Circus should not be held in contempt for failure
to follow the hearing officer's order.
The appeals officer issued a consolidated decision, ordering Circus Circus to comply with
the hearing officer's order by accepting the claims and paying benefits, within five days of
the service of this order. He also authorized employees Fought and Buzick to apply to the
district court in the name of the undersigned appeals officer for enforcement of this order
should Circus Circus refuse compliance with the appeals officer's order.
Circus Circus refuse compliance with the appeals officer's order. In his decision, the appeals
officer noted that Circus Circus had not requested from the appeals officer a stay of the
hearing officer's order, pending an appeal on the merits, but rather argued that the filing of a
notice of appeal with the appeals officer automatically suspends the effect of the hearing
officer's decision. The appeals officer recognized that the objective of workers [sic]
compensation social legislation is to provide the disabled worker with benefits during the
period of his disability so that the worker and his dependents may survive the catastrophe
which the temporary cessation of necessary income occasions.' McAvoy v. H.B. Sherman
Co., 258 N.W.2d 414 (Mich. 1977). He concluded that this objective would be defeated by
Circus Circus' refusal to comply with the hearing officer's order, as [i]t is clearly the injured
worker and not the employer who is more likely to be irreparably harmed when immediate
payment of benefits is contrasted with delayed payment pending the outcome of the hearing
on the merits.
Circus Circus still refused to pay benefits to Fought and Buzick. The Department of
Industrial Insurance Regulation (DIIR), charged with the responsibility of regulating
self-insured employers, fined Circus Circus for refusing to comply with the hearing officer's
orders to pay benefits to Fought and Buzick. Circus Circus still refused to make payments.
Fought and Buzick and the appeals officer then petitioned the district court for a warrant of
attachment for contempt. The trial court issued an order to show cause why Circus Circus
should not be adjudged in contempt for failing to comply with the order to pay benefits.
Circus Circus filed a petition for writ of prohibition with our court, which we denied because
an application for extraordinary relief should first be made in the district court. Circus Circus
then filed a petition for writ of review, mandamus, injunction and declaratory relief with the
district court. At the hearing before the district court, Judge Minor signed a writ of review
(certiorari) staying all further proceedings before the appeals officer or DIIR, because the
judge believed the appeals officer had exceeded his jurisdiction in affirming the hearing
officer's denial of the requested stay.
Subsequently, the hearing officer issued an order directing Circus Circus to comply with
its decision and authorizing Fought and Buzick to apply to the district court in the hearing
officer's name for enforcement of his earlier decision ordering payment. Circus Circus still
failed to make payments.
Fought and Buzick and the Hearing Officer then petitioned the district court to issue an
order to show cause why Circus Circus should not be held in contempt for its refusal to obey
the hearing officer's decision. The court denied the petition because it determined that the
legislature did not intend to give the hearing officer power "over matters that deal with
the granting of an award prior to a final hearing."
mined that the legislature did not intend to give the hearing officer power over matters that
deal with the granting of an award prior to a final hearing. The court then concluded that it
is without jurisdiction to consider the merits of the claims of Linda Buzick and Catherine
Fought until the administrative appeal process has been completed. For this conclusion, the
court relied on our decision in State Indus. Ins. System v. Sleeper, 100 Nev. 267, 679 P.2d
1273 (1984).
[Headnotes 1, 2]
It is indisputably the policy of the State Industrial Insurance System (SIIS) to comply with
a hearing officer's order, unless a stay is granted. The central issue before us, therefore, is
whether an employer that accepts the advantages of becoming a self-insurer of worker's
compensation benefits must also obey a hearing officer's order to pay such benefits, absent a
stay. In considering this issue, we recognize that because it is a procedural question, an
independent appellate review, as opposed to a more deferential standard of review, is
appropriate. SIIS v. Partlow-Hursch, 101 Nev. 122, 696 P.2d 462 (1985).
Discussion
The Nevada Industrial Insurance Act imposes an affirmative duty on self-insured
employers to provide compensation due employees in the manner provided by this chapter.
NRS 616.272. The self-insured employer is also subject to the regulations of the
department. Id. The Act mandates that each employee shall be entitled to receive, and shall
receive promptly accident benefits. NRS 616.515 (emphasis added). Because the statutes
impose a duty on self-employed insurers to pay benefits promptly, and because Fought and
Buzick were not paid for a period of at least 18 months, we must carefully scrutinize Circus
Circus' handling of these claims in light of the governing statutes, agency regulations, and
opinions issued by this court.
1

[Headnote 3]
There is no applicable statute expressly governing the time payment of benefits subsequent
to a determination by a hearing officer that they must be paid. There is, however, an agency
regulation which states that the decision of a hearing officer becomes final and binding on
all parties 60 days after the date of the decision."
____________________

1
At the time of oral argument, Buzick had just been paid the benefits ordered by the hearing officer, after an
18 month delay. However, no benefits had yet been tendered to Fought. The delay to her, then, may well be in
excess of 18 months.
the decision. Rule XIV, Hearings Division Rules.
2
Because the hearing officer decision is
final and binding, compliance with it is mandatory and Circus Circus must obey the order,
absent a stay. The agency regulations unequivocally provide that [t]he filing of an appeal
does not in itself stay enforcement of the hearing officer's decision. Id. Counsel for Circus
Circus apparently recognized their obligation to request a stay from the hearing officer, but
then, even after the denial of that request, continued to advise their client to withhold benefits
from its employees.
3
This advice was not sound. Based on the controlling statutes and
agency regulations, a self-insurer, like the SIIS itself, in the absence of a stay must make
prompt payments of benefits to employees once a hearing officer has so ordered.
Counsel for Circus Circus misconstrue and improperly rely on our recent decision in
Sleeper, 100 Nev. at 267, 679 P.2d at 1273. Sleeper does not stand for the proposition that the
hearing officer's decision has no validity. In Sleeper, the district court adjudged the SIIS in
contempt for its failure to hold proceedings subsequent to those of the hearing officer, even
though none had been requested by the injured worker. We held that because the worker had
not pursued his administrative remedies (the hearing before the appeals officer), the district
court was without jurisdiction to consider the contempt action against the SIIS.
[Headnote 4]
In the case before us, Circus Circus did not comply with its administrative remedies. It
could have filed for a request for a stay from the appeals officer, but never made such a
request. Rather, as in Sleeper, it chose to go to the district court for relief. Fought and Buzick,
on the other hand, satisfied their administrative remedies. They each requested protection
from the tactics employed by the attorneys for Circus Circus before the hearing officer, the
appeals officer, and the district court. Thus, the lower court was not without jurisdiction to
consider the failure of Circus Circus to comply with the hearing officer's order.
Our previous decisions have stressed the need for worker's compensation determinations
to be consistent with Nevada's public policy of favoring the injured worker, who gives up
his or her right to a tort remedy against an employer in exchange for the protections of
the worker's compensation system.
____________________

2
Counsel for Circus Circus unpersuasively argue that these regulations are not binding on their client. The
regulations have been filed with the Secretary of State, and bear the authenticated file stamp which raises a
rebuttable presumption that the regulation was adopted and filed in compliance with all requirements necessary
to make it effective. NRS 233B.090. Our review of the record indicates that Circus Circus introduced no
evidence to overcome this presumption of validity. Accordingly, the regulations are effective, and binding on
Circus Circus.

3
We believe that Circus Circus' attorneys must have recognized that the request for a stay was a procedural
requirement to the noncompliance of a hearing officer's order, or they would not have filed the request. We
dismiss as self-serving counsel's characterization of the request for a stay as a mere courtesy.
compensation determinations to be consistent with Nevada's public policy of favoring the
injured worker, who gives up his or her right to a tort remedy against an employer in
exchange for the protections of the worker's compensation system.
Nevada's [worker'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.
Unquestionably, compensation laws were enacted as a humanitarian measure. The
modern trend is to construe the industrial insurance acts broadly and liberally, to protect
the interest of the injured worker and his dependents. A reasonable, liberal and practical
construction is preferable to a narrow one, since these acts are enacted for the purpose of
giving compensation, not for the denial thereof.
Nevada Industrial Commission v. Peck, 69 Nev. 1, 10-11, 239 P.2d 244, 248 (1952).
Hansen v. Harrah's, 100 Nev. 60, 63, 675 P.2d 394, 396 (1984). (Emphasis added.)
If the hearing officer's determination that benefits must be paid were rendered
automatically meaningless until the administrative process is complete, as counsel for Circus
Circus argue, then the public policy reflected in our worker's compensation scheme would be
aborted. The Act mandates prompt payment to injured employees. The agency regulations
specify that the hearing officer's order is binding, absent a stay. Our opinions have reinforced
the need for a liberal application of the statutes and regulations, in favor of the injured worker
and the worker's economic security. Self-insured employers are not excepted from the law in
this State. When a self-insured employer elects to accept the benefits of administering its own
worker's compensation program, in exchange for relief from tort liability, it must assume the
burdens. One of the burdens of the system is the prompt payment of benefits, and if payment
is determined to be unwarranted, the self-insurer must seek reimbursement of benefits it paid.
The self-insured employer is protected by the system in the same manner as is the SIIS: It
must pay the benefits until a stay order is issued, or until an appeal determines the injury is
not compensable. If the stay order is denied, as was the case here, the self-insured employer
must not deny the injured worker the prompt payments mandated by worker's compensation
statutes, agency regulations and the decisions by this court. The self-insured employer is
obligated to act as the SIIS would do in like circumstances. Merely because the appeal
process may take quite some time, the self-insured employer cannot properly delay payment,
thereby starving out its injured employee and violating the public policy established by
our worker's compensation scheme.
the public policy established by our worker's compensation scheme. Along with the benefits
of being a self-insurer, this is one of the burdens accepted: the employer must pay the claim
and seek recovery later if payment is in error, thus assuring the employee some measure of
economic security. The injured employee must not be forced to survive on no income for
whatever time the employer may expend in pursuing the appeal process.
[Headnote 5]
Accordingly, the judgments of the district court in these appeals is reversed. The cases are
remanded to the lower court to reinstate the orders of the hearing officer and the appeals
officer and the fine assessed by DIIR.
4

____________________

4
Following reinstatement, however, we believe it would be appropriate for the Department of Industrial
Insurance Regulation to reconsider the fine imposed on Circus Circus, if a motion for such relief is promptly
tendered. We note that the record herein strongly suggests that the inappropriate strategy employed herein was
conceived by counsel, who should have realized they were placing their client at risk, rather than by the
management of Circus Circus. If this be the case, then inasmuch as this court has not previously had the occasion
to remove all possible question about the issue, we deem it appropriate for the DIIR to consider relieving Circus
Circus from the fine heretofore imposed.
____________
101 Nev. 412, 412 (1985) DeCarnelle v. Guimont
GERALD D. DeCARNELLE, Appellant and Cross-Respondent, v. BRUCE C. GUIMONT
and BEVERLY A. GUIMONT, Respondents and Cross-Appellants.
No. 15856
August 27, 1985 705 P.2d 650
Appeal and cross-appeal from a judgment holding contract illegal and unenforceable, and
finding appellant liable for slander of title; Second Judicial District Court, Washoe County;
John W. Barrett, Judge.
Speculator filed suit against landowners for breach of an alleged contract to breed raptors
for eventual sale. Landowners counterclaimed against speculator for slander of title resulting
from speculator's filing of pretrial lis pendens on landowners' property. The district court
found alleged contract to be illegal and unenforceable and awarded landowners special
damages in amount of attorney's fees incurred in removing lis pendens. Speculator appealed
and landowners cross-appealed. The Supreme Court held that: (1) the alleged contract was
nonexistent, rather than illegal, but trial court's refusal to award damages for breach of
contract was correct result, and {2) insufficient evidence that speculator had acted with
malice in filing lis pendens precluded recovery on slander of title claim.
for breach of contract was correct result, and (2) insufficient evidence that speculator had
acted with malice in filing lis pendens precluded recovery on slander of title claim.
Davenport & Perry, Reno, for Appellant and Cross-Respondent
Sinai & Schroeder, Reno, for Respondents and Cross-Appellants.
1. Contracts.
Documents prepared by speculator for use in acquiring raptors did not create a contract between
speculator and landowners to cooperate in breeding raptors for sale at large profit once sale of raptors was
legalized.
Where trial incorrectly characterized an alleged contract as illegal, rather than nonexistent, but reached
correct outcome that agreement between the parties was unenforceable and could not support an award of
damages for its breach, Supreme Court did not reverse.
Requisites to an action for slander of title are that the words spoken be false, that they be maliciously
spoken and that the plaintiff sustain some damage as a direct result of their having been spoken.
Insufficient evidence that speculator's filing of a lis pendens containing a false statement on landowners'
property was done with malice precluded judgment for landowners on slander of title claim.
OPINION
Per Curiam:
This case involves an agreement between two parties for the propagation of birds of prey.
In the spring of 1977, appellant/cross-respondent Gerald DeCarnelle met
respondent/cross-appellant Bruce Guimont. Sharing an interest in birds of prey (also known
as raptors), Guimont and DeCarnelle agreed to join forces for the propagation of these birds.
In August, 1977, Guimont and his wife Beverly sold their Sun Valley, Nevada residence and
purchased a 40-acre parcel of land in the Palomino Valley for $18,250.
The parties agreed that DeCarnelle, having no carpentry skills, would provide all the
money and birds necessary for the project while Guimont, an experienced carpenter, would
invest all the necessary time and labor into building a propagation facility.
Guimont constructed the facility to near completion. He also built a home on the same
parcel of land. His family moved into the home in 1979.
the home in 1979. Meanwhile, DeCarnelle prepared two documents which were used to
acquire raptor propagation licenses. At the time of their dealings, it was (and it continues to
be) a crime to sell birds of prey. It was not, however, unlawful to raise these birds. The
testimony of both parties established that the parties hoped to make a lot of money from
this project by corner[ing] the marker when the sale of raptors was legalized.
1

By August, 1979, there were between 10 and 18 birds in the facility, but the parties had not
been successful in mating any of them. Guimont contacted DeCarnelle and informed him that
he was dissatisfied with the project and that he intended to sell the house and property.
The Guimonts listed their house and property for sale and eventually accepted a bid of
$129,000. That sales transaction was scheduled to close on April 21, 1980. On April 15,
1980, however, DeCarnelle filed a lis pendens on the property. This prevented the sale from
occurring. The Guimonts hired an attorney, and the lis pendens was cancelled on May 2,
1980. On May 5, 1980, the escrow on the sale closed, and the Guimonts sold the property for
$129,000.
DeCarnelle filed an action against the Guimonts for breach of contract. The Guimonts
counterclaimed against DeCarnelle for slander of title as a result of the lis pendens on the
property. The district court found the contract illegal and unenforceable and granted judgment
on the claim for the Guimonts. The court also held that DeCarnelle was liable for slander of
title and awarded special damages in the amount of attorney's fees incurred in the removal of
the lis pendens. This appeal and cross-appeal followed.
Illegality of the Contract
[Headnotes 1, 2]
DeCarnelle asserts that the district court erred in finding the contract illegal. Our review of
the record does not support a legal conclusion that the contract of the parties' was illegal.
Instead of finding the contract illegal, the district court should have found that no contract
exists between the parties. The district court found a contract in the two documents
DeCarnelle prepared for use in acquiring raptors. Our review of these documents and of the
record as a whole leads us to conclude that no contract was created by these documents, or
otherwise, between the parties. Therefore, although the district court was correct in refusing
to award damages for breach of contract, it did not state non-existence of a contract as the
reason. This court need not reverse a case on this basis, so long as the result is correct.
____________________

1
DeCarnelle had been officially (and apparently incorrectly) informed that a change in the laws regarding the
sale of raptors was possible.
a case on this basis, so long as the result is correct. Hotel Riviera v. Torres, 97 Nev. 399, 632
P.2d 1155 (1981). Therefore, the judgment of the district court finding the agreement between
the parties unenforceable is affirmed.
Slander of Title
DeCarnelle next argues that the court erred in finding him liable for slander of title. The
district court found that the lis pendens filed by DeCarnelle against the Guimonts' property
was improperly and unjustifiably recorded and that slander of title occurred.
[Headnotes 3, 4]
The requisites to an action for slander of title are that the words spoken be false, that they
be maliciously spoken and that the plaintiff sustain some special damage as a direct result of
their having been spoken. Rowland v. Lepire, 99 Nev. 308, 313, 662 P.2d 1332, 1335
(1983). DeCarnelle testified that he had no interest in the real property. Since the application
for the lis pendens stated that DeCarnelle had such an interest, that statement was false.
Second, the evidence established that the Guimonts sustained special damage in the amount
of attorney's fees to remove the lis pendens. The evidence, however, fails to establish that
DeCarnelle acted with malice. In the absence of evidence of malice, the record is insufficient
to support the judgment on the slander of title claim. Therefore, the award of damages for
slander of title was in error.
2

Accordingly, judgment in favor of the Guimonts for slander of title is reversed, and
judgment in favor of DeCarnelle on the breach of contract is affirmed.
____________________

2
In their cross-appeal the Guimonts claim the court erred in denying them general and punitive damages on
the slander claim. Because we hold the evidence is insufficient to support a claim for slander of title, the
Guimonts' argument is without merit.
____________
101 Nev. 416, 416 (1985) Montgomery v. Ponderosa Construction
VICKI L. MONTGOMERY, Appellant, v. PONDEROSA CONSTRUCTION, INC.;
LEVY REALTY COMPANY and SAVALLI ESTATES HOMEOWNERS
ASSOCIATION, Respondents.
No. 15869
August 27, 1985 705 P.2d 652
Appeal from summary judgment in favor of respondents in a personal injury action; Eighth
Judicial District Court, Clark County; Miriam Shearing, Judge.
Real estate saleswoman sued condominium developer for personal injuries, alleging
negligent maintenance of condominium parking lot. The developer filed a third party
complaint against the condominium association and its managing agent, and developer,
association and agent moved for summary judgment against saleswoman, alleging that
Industrial Insurance Act barred saleswoman's suit because she was an employee of developer.
The district court granted summary judgment, and saleswoman appealed. The Supreme Court
held that the factual issue whether saleswoman was an employee of developer precluded
summary judgment.
Mushkin, Samuels & Associates, Las Vegas, for Appellant.
Lyles & Austin, Las Vegas, for Respondent Ponderosa Construction, Inc.
Edwards, Hunt & Hale and Victor Lee Miller, Las Vegas, for Respondents Levy Realty
Company and Savalli Estates Homeowners Association.
In determining whether a putative employer is an employer within meaning of Nevada Industrial
Insurance Act, NRS 616.010 et seq., emphasis is placed on the amount of control exercised by putative
employer over worker.
In analyzing whether an employer-employee relationship exists in a particular case, five factors are
accorded substantially equal weight, including the degree of supervision exercised by putative employer
over details of work; the source of worker's wages; the existence of a right on part of putative employer to
hire and fire worker; the extent to which worker's activities further general business concerns of putative
employer; and the putative employer's right to control hours and location of employment. NRS 616.370.
3. Judgment.
Great care should be exercised in granting summary judgment. NRCP 56.
4. Judgment.
Factual issue whether employer-employee relationship existed between condominium developer and real
estate saleswoman suing developer for negligent maintenance of parking lot precluded summary judgment
for developer and third party defendants based upon defense that Nevada Industrial Insurance Act barred
saleswoman from pursuing common law action against developer because she was developer's employee.
NRS 616.370.
OPINION
Per Curiam:
Plaintiff-appellant Vicki L. Montgomery, a licensed real estate salesperson, worked as an
independent contractor with Nevada Properties Realty, Inc. Nevada Properties Realty was the
exclusive sales agent for third party defendant-respondent Savalli Estates Homeowners
Association (Savalli). Savalli Estates is a condominium project developed by
defendant-respondent Ponderosa Construction, Inc. (Ponderosa). Montgomery slipped and
fell while walking in a parking lot area of the Savalli Estates, and suffered a swollen ankle,
low back pain and headaches. Montgomery filed a complaint against Ponderosa for negligent
maintenance of the parking lot. Appellant's contract with Nevada Properties required her to
maintain industrial insurance; she made a claim with the State Industrial Insurance System,
which paid her $7,383.62. Ponderosa filed a third party complaint against Savalli and Levy
Realty Company, the managing agent of the Savalli condominiums. NRCP 14(a).
Ponderosa and Savalli and Levy Realty Company filed a motion for summary judgment in
the negligence action, alleging that Montgomery's claim was barred under the Nevada
Industrial Insurance Act (NIIA) because she was an employee of Ponderosa and was therefore
prevented from pursuing a common law action against Ponderosa pursuant to NRS 616.370.
1
The district court granted the summary judgment motion and this appeal followed.
Montgomery contends that the court erred in granting summary judgment because an issue
of fact exists as to whether she was an employee of Ponderosa. We agree.
[Headnotes 1, 2]
In determining whether a putative employer is an employer within the meaning of the
NIIA, emphasis is placed on the amount of control exercised by the putative employer over
the worker. Antonini v. Hanna Industries, 94 Nev. 12, 573 P.2d 1184 {197S).
____________________

1
NRS 616.370 provides, in pertinent part, that [t]he rights and remedies provided in [Ch. 616, NRS] for an
employee . . . shall be exclusive . . . of all other rights and remedies of the employee . . . at common law or
otherwise. . . .
(1978). Five factors are accorded substantially equal weight in analyzing whether an
employer-employee relationship exists in a particular case. These factors are: (1) the degree
of supervision exercised by the putative employer over the details of the work; (2) the source
of the worker's wages; (3) the existence of a right on the part of the putative employer to hire
and fire the worker; (4) the extent to which the worker's activities further the general business
concerns of the putative employer; and (5) the putative employer's right to control the hours
and location of employment. Whitley v. Jake's Crane & Rigging, Inc., 95 Nev. 819, 603 P.2d
689 (1979).
The record reflects that Ponderosa exercised a degree of control over Montgomery in that
the correspondence of its president, Lewis Hildreth, attached to the motion for summary
judgment insisted the model homes be operated by salespersons at specific hours on
weekends. This is relevant to the fifth factor of the putative employer's right to control the
hours and location of employment.
A letter in which Hildreth requested a particular salesman be removed and replaced with
someone of a more enthusiastic nature tended to establish Ponderosa's right to fire workers.
However, the record does not reflect whether Nevada Properties complied with the letter as a
demand or whether it was regarded as a mere request. Additionally, portions of Montgomery's
time at the Ponderosa site were spent on matters unrelated to the business of Ponderosa. Thus
the current state of the record does not permit full evaluation of the factor of the extent to
which Montgomery furthered Ponderosa's general business concern of construction and sale
of condominiums. Neither does the record permit evaluation of the remaining factors of the
source of Montgomery's wages and the degree of supervision exercised by Ponderosa over the
details of Montgomery's work.
The papers submitted in support of the motion for summary judgment did not exhibit
Ponderosa's direct control over Montgomery's activities as a matter of law and thus did not
demonstrate an employer-employee relationship which would limit her common law action.
[Headnotes 3, 4]
Great care should be exercised in granting summary judgment. Mullis v. Nevada National
Bank, 98 Nev. 510, 654 P.2d 533 (1982). Summary judgment is appropriate where the
pleadings and papers on file show there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law. NRCP 56. In the absence of a clearly
established NIIA defense, summary judgment must be denied. Leslie v. J. A. Tiberti Constr.,
99 Nev. 494, 664 P.2d 963 (1983); Weaver v. Shell Oil Co., 91 Nev. 324, 328, 535 P.2d 787
(1975).
A determination on summary judgment that, as a matter of law, Montgomery was
Ponderosa's employee was inappropriate. Accordingly, the order granting summary judgment
is reversed and the case is remanded to the district court.
____________
101 Nev. 419, 419 (1985) Farmer v. State
ROBERT JEFFREY FARMER, Appellant, v.
No. 15978
August 27, 1985 705 P.2d 149
Appeal from imposition of death penalty by a three-judge court upon guilty plea of first
degree murder. Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Joseph O.
McDaniel and William P. Beko, Judges.
Defendant pled guilty to first degree murder. A three-judge panel in the district court
sentenced defendant to death, and he appealed. The Supreme Court held that: (1) panel did
not commit error by considering the underlying felonies of robbery and burglary as separate
circumstances aggravating murder conviction; (2) panel did not improperly disregard
mitigating circumstances urged by defendant, including his mental impairment; (3) evidence
supported finding of the two aggravating circumstances; and (4) death penalty was not
imposed under influence of passion, prejudice or any arbitrary factor, and was not excessive
or disproportionate to penalty imposed in similar cases in state.
Affirmed.
Murray Posin, Las Vegas, for Appellant.
Vegas, for Respondent.
1. Homicide.
Trial court did not err by considering underlying felonies of robbery and burglary as separate
circumstances aggravating defendant's first degree murder conviction. NRS 200.033.
2. Homicide.
If trial court concluded that evidence of defendant's mental condition established only a character or
personality disorder, court could reasonably find that this did not constitute a circumstance mitigating a
murder conviction. NRS 200.033.
3. Criminal Law.
Finding that defendant is partially mentally impaired does not bar imposition of death penalty.
4. Homicide.
Trial court did not improperly disregard various alleged mitigating factors, including defendant's claimed
mental impairment, in finding that no circumstances existed mitigating defendant's conviction of murder.
NRS 200.033.
5. Homicide.
Evidence supported finding of two circumstances aggravating defendant's conviction of first degree
murder, which were that murder had been committed during commission of a robbery and during
commission of a burglary. NRS 177.055, subd. 2.
6. Homicide.
Death penalty imposed for murder committed during commission of burglary and robbery was not
imposed under influence of passion, prejudice or any arbitrary factor. NRS 177.055, subd. 2.
7. Homicide.
Death penalty imposed upon defendant for murder committed during commission of burglary and robbery
was not excessive or disproportionate to penalty imposed in similar cases, considering both the crime and
defendant. NRS 177.055, subd. 2.
OPINION
Per Curiam:
Appellant Robert Jeffrey Farmer pleaded guilty to first degree murder and a three-judge
panel, appointed pursuant to NRS 175.558 to conduct a penalty hearing, sentenced him to
death. Our review of the record convinces us that the three-judge panel did not commit error
in imposing the death penalty. We therefore affirm.
On January 18, 1982, Robert Jeffrey Farmer was driving from Reno to Las Vegas. In the
town of Lathrop Wells, he picked up two hitchhikers, Archie Blackcrow and Melanie Marks.
When the automobile he was driving ran out of gasoline, the three hitchhiked into Las Vegas
where they met a taxicab driver, Greg Lewis Gelunas. Testimony indicates that Gelunas spent
the evening drinking alcoholic beverages and smoking marijuana with Farmer, Blackcrow
and Marks, before offering them his backyard as a place to sleep for the night.
On at least two occasions during the course of the evening, Farmer and Blackcrow
discussed the possibility of robbing Gelunas and stealing his automobile. Farmer testified that
he was aware such a venture would at least require them to overpower and restrain Gelunas
physically. Later that evening, after Gelunas had returned his taxicab and picked up his
personal vehicle, Farmer suggested that Blackcrow enter the house and knock Gelunas
unconscious with a rock. Blackcrow apparently felt unable to do this. Farmer then went to the
back door of the house and called for Gelunas. When Gelunas came to the door, Farmer
knocked him to the floor, entered the kitchen, and stabbed Gelunas repeatedly with a knife.
The house was ransacked.
Farmer, Blackcrow and Marks departed in the victim's car and drove to Arizona where
they parted company. Farmer continued on to Florida. He was subsequently arrested in
Gainesville, Florida, and extradited to Nevada.
On May 23, 1983, Farmer entered a plea of not guilty to the charges of murder and use of a
deadly weapon in the commission of a crime. On March 26, 1984, he changed his plea to
guilty. The case was remanded to a three-judge panel for sentencing.
At the conclusion of the penalty hearing, the panel found two aggravating circumstances:
(1) that the murder had been committed during the commission of a robbery, and (2) that the
murder had been committed during the commission of a burglary. Finding no mitigating
circumstances, the court imposed the death penalty. Farmer now appeals the imposition of the
death penalty.
The first issue on appeal is whether the three-judge panel court committed reversible error
by considering the underlying felonies of robbery and burglary as separate aggravating
circumstances under NRS 200.033. The panel found two aggravating circumstances and no
mitigating circumstances sufficient to outweigh the aggravating circumstances. Farmer
assigns this as error, relying on State v. Cherry, 257 S.E.2d 551 (N.C. 1979). There, the North
Carolina Supreme Court held that when a defendant is convicted of first degree murder under
the felony murder rule, the trial judge shall not submit to the jury at the sentencing phase of
trial the aggravating circumstance concerning the underlying felony.
[Headnote 1]
Because a defendant in our jurisdiction can be convicted and sentenced for both robbery
and felony murder, this argument is unavailable to Farmer. In Wilson v. State, 99 Nev. 362,
664 P.2d 328 (1983), we declined to adopt the reasoning of Cherry. More recently, in
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), we expressly rejected the contention
that the underlying felony cannot be considered as an aggravating circumstance. Thus, that
the three-judge panel did so in this case was not error.
Farmer's second contention is that the panel improperly disregarded his mental impairment
in finding that no mitigating circumstances existed sufficient to outweigh the aggravating
circumstances. He argues it does not appear that consideration of various mitigating factors
was undertaken by the court, as required to satisfy constitutional standards.
[Headnotes 2-4]
The three-judge panel was aware of the law. If, after considering the offered evidence, the
panel concluded that the defendant's mental condition established only a character or
personality disorder, the panel could reasonably find that mitigating circumstances did not
exist. State v. McMurtrey, 664 P.2d 637 (Ariz.
1983). A finding of a partial mental impairment does not bar the imposition of the death
penalty. State v. Gretzler, 659 P.2d 1 (Ariz. 1983). Our review of the record fails to establish
that the panel improperly disregarded the evidence presented concerning Farmer's various
mental and physical impairments.
[Headnotes 5-7]
Finally, we have determined, after analyzing the circumstances of Farmer's crime as
required by NRS 177.055(2), that the evidence in the instant case supports the finding of two
aggravating circumstances. Our review of the record reveals that the sentence of death was
not imposed under the influence of passion, prejudice or any arbitrary factor. We also
conclude that the sentence of death is not excessive or disproportionate to the penalty
imposed in similar cases in this state, considering both the crime and the defendant.
We hold that all claims of error by Farmer are without merit. Accordingly, we affirm the
sentence imposing the death penalty.
____________
101 Nev. 422, 422 (1985) Great American Airways v. Tax Comm'n
GREAT AMERICAN AIRWAYS, a Nevada Corporation, Appellant, v. NEVADA STATE
TAX COMMISSION, an Administrative Agency of the State of
Nevada, Respondent.
No. 15992
August 27, 1985 705 P.2d 654
Appeal from decision affirming the judgment of the Nevada Tax Commission, and
ordering Great American Airways to pay a use tax assessed against it for using, consuming
and storing in Nevada an aircraft purchased in Kansas. Second Judicial District Court,
Washoe County; Grant L. Bowen, Judge.
Nevada Tax Commission assessed use tax on airplane purchased outside state by airline
incorporated and headquartered in state. The district court affirmed the judgment of the
Commission and airline appealed. The Supreme Court held that: (1) imposition of tax for use,
consumption and storage of the aircraft did not violate the commerce clause; (2) imposition
of such tax did not violate the due process clause of the Fourteenth Amendment; and (3)
airplane was not exempt from use tax under the occasional sale exception.
Affirmed.
Lionel, Sawyer & Collins, Laura B. Ahearn, and Richard Campbell, Reno, for Appellant.
Brian McKay, Attorney General, and Michael Dougherty, Deputy Attorney General,
Carson City, for Respondent.
1. Commerce.
Analysis whether a tax excessively burdens interstate commerce in violation of commerce clause focuses
upon practical effects of the tax. U.S.C.A.Const. Art. 1, 8, cl. 3.
2. Commerce.
A tax does not impermissibly burden interstate commerce in violation of commerce clause when it is
applied to an activity with a substantial nexus with the taxing state, is fairly apportioned, does not
discriminate against interstate commerce, and is fairly related to the services provided by the state.
U.S.C.A.Const. Art. 1, 8, cl. 3.
3. Commerce.
State tax properly apportioned under commerce clause apportionment requirement does not tax activities
carried on outside the taxing state's borders and does not result in multiple taxation, which is clearly
unconstitutional. U.S.C.A.Const. Art. 1, 8, cl. 3.
Use tax levied upon airplane purchased outside state but hangared in state and owned by airline
incorporated and headquartered in state did not violate due process clause. U.S.C.A.Const. Amend. 14.
5. Commerce.
Airline's failure to demonstrate actual multiple taxation of its airplane was fatal to its claim that failure of
tax statute, NRS 372.345, to provide an express exemption for sales and use taxes paid in other states
allowed possibility of multiple taxation which would violate apportionment requirement of commerce
clause. U.S.C.A.Const. Art. 1, 8, cl. 3.
6. Taxation.
Function of a use tax is to prevent evasion of state sales tax. NRS 372.185.
7. Commerce.
Nevada was not required by commerce clause to apportion its use tax on airplane purchased outside state
but hangared in state based upon amount of miles flown in Nevada or hours spent in Nevada, as such
apportionment would be administratively complicated for both Nevada and taxpayer airline and only
Nevada had a sufficient nexus with airline, which was incorporated and headquartered in Nevada, to levy a
use tax upon airplane purchase. U.S.C.A.Const. Art. 1, 8, cl. 3; NRS 372.185.
8. Commerce.
Commerce clause requirement that state taxation of interstate commerce must not discriminate against
interstate commerce requires that the state place no greater burden upon interstate commerce than it places
upon competing intrastate commerce of like character. U.S.C.A.Const. Art. 1, 8, cl. 3.
9. Commerce.
Use tax on airplane purchased outside of state which will be used, consumed or stored in Nevada by any
air carrier headquartered in Nevada, whether intrastate or interstate, does not discriminate against interstate
commerce in violation of commerce clause, as tax burdens intrastate and interstate commerce equally.
NRS 372.185; U.S.C.A.Const. Art. 1, 8, cl. 3.
10. Taxation.
Taxable moment occurred when aircraft purchase outside state ended its interstate
transportation and was stored in state prior to beginning interstate operation.
ended its interstate transportation and was stored in state prior to beginning interstate operation.
11. Commerce.
Inquiry whether use tax is sufficiently related to values attributable to taxing state to be permissible under
commerce clause focuses on whether state has given anything for which it can ask return, and is closely
allied with inquiry whether sufficient nexus exists between activity taxed and taxing state. U.S.C.A.Const.
Art. 1, 8, cl. 3.
12. Commerce.
Use tax imposed on airplane purchased outside state was sufficiently related to benefits provided by state
so that it did not impermissibly burden interstate commerce in violation of commerce clause, where airline
had a substantial nexus with state and was incorporated and headquartered in state. NRS 372.185;
13. Taxation.
Specific facts of each case are critical to evaluating whether a transaction is exempted from use tax as an
occasional sale. NRS 372.320.
14. Taxation.
Taxpayer bears burden of proving that he is entitled to occasional sale exemption to use tax. NRS
372.320.
15. Taxation.
Airplane purchased outside state by airline incorporated and headquartered in state was not exempt from
use tax under occasional sale exemption, NRS 372.320. NRS 372.185.
OPINION
Per Curiam:
Great American Airways (GAA) is a Nevada corporation, headquartered in Reno, engaged
in the interstate transportation of charter air passengers. GAA primarily transports charter
groups for the Carson City Nugget. Frequently, flights are made to destinations outside of
Nevada where, in most instances, the aircraft remains overnight before returning to Nevada.
On or about July 2, 1979 GAA purchased, in Kansas, a DC-9 aircraft from Trans World
Airways (TWA) for $3,600,000.00. During oral argument before this court, GAA's counsel
admitted that GAA was not required to pay a sales tax in Kansas.
The Department of Taxation conducted an audit of the books and records of GAA
covering the period July 1, 1979 through November 30, 1979. As a result of the audit, GAA
was assessed taxes and penalties totaling $128,520.00 ($72,000.00 attributable to GAA's use,
consumption and storage, in Nevada, of the DC-9 aircraft purchased in Kansas).
The gravamen of GAA's complaint is: (1) that the levying of a use tax on its out-of-state
aircraft purchase unconstitutionally burdens interstate commerce, and (2) that its aircraft
purchase was exempted from use taxation as an "occasional sale" under NRS 372.320.1
was exempted from use taxation as an occasional sale under NRS 372.320.
1

We reject both propositions. Firstly, the tax did not unconstitutionally burden interstate
commerce because it was fairly apportioned, nondiscriminatory and fairly related to services
provided by Nevada. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), reh'g
denied, 430 U.S. 976 (1977). Secondly, GAA presented no evidence from which the
Department of Taxation or the trial court could have determined that its aircraft purchase was
exempt as an occasional sale and thus did not sustain its burden of proof. See NRS
372.320.
[Headnote 1]
Originally, interstate commerce was immune from state taxation, but now interstate
commerce is required to pay its just share of state tax burdens. See Braniff Airways, Inc. v.
Nebraska State Board of Eq. & A., 347 U.S. 590, 598 (1954), reh'g denied, 348 U.S. 852
(1954). Where a tax goes too far, it will be struck down as burdening interstate commerce. In
determining if a tax is excessively burdensome, analysis focuses on the tax's practical effects.
In reviewing Commerce Clause challenges to state taxes, our goal has instead been to
establish a consistent and rational method of inquiry' focusing on the practical effect of a
challenged tax.' Commonwealth Edison Co. v. Montana, 453 U.S. 609, 615 (1981), reh'g
denied, 453 U.S. 927 (1981) quoting from Mobil Oil Corp. v. Commissioner of Taxes, 445
U.S. 425, 443 (1980).
[Headnote 2]
The four prong test announced in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274
(1977), reh'g denied, 430 U.S. 976 (1977) culminated the United States Supreme Court's
efforts to focus on a tax's practical effects. A tax will be sustained against a Commerce
Clause challenge when the tax is applied to an activity with a substantial nexus with the
taxing state, is fairly apportioned, does not discriminate against interstate commerce, and is
fairly related to the services provided by the state. Id. at 279.
Complete Auto is the bench mark of state taxation of interstate commerce. See George S.
Carrington Co. v. State Tax Com'n, 377 N.E.2d 950, 952 n. 3 (Mass. 1978). Complete Auto's
four prong test has been applied to a use tax on an airplane, Whitcomb v. Commissioner of
Taxes, 479 A.2d 164 {Vt. 19S4), a first-use tax on natural gas, Maryland v. Louisiana, 451
U.S. 725 {19S1), a sales tax, George S. Carrington Co. v.
____________________

1
NRS 372.320 reads:
There are exempted from the taxes imposed by this chapter the gross receipts from occasional sales of
tangible personal property and the storage, use or other consumption in this state of tangible personal
property, the transfer of which to the purchaser is an occasional sale.
v. Commissioner of Taxes, 479 A.2d 164 (Vt. 1984), a first-use tax on natural gas, Maryland
v. Louisiana, 451 U.S. 725 (1981), a sales tax, George S. Carrington Co. v. State Tax Com'n,
377 N.E.2d 950 (Mass. 1978), a privilege tax, Complete Auto Transit, Inc. v. Brady, 430 U.S.
274 (1977), reh'g denied, 430 U.S. 976 (1977), and a severance tax, Commonwealth Edison
Co. v. Montana, 453 U.S 609 (1981), reh'g denied, 453 U.S 927 (1981).
At issue in this case is the propriety of a use tax, NRS 372.185,
2
imposed upon GAA's
out-of-state purchase of an airplane used in interstate commerce and hangared in Reno. GAA
contends the use tax imposed on its purchase violated the Complete Auto test because it was
unapportioned, discriminatory, and not fairly related to values attributable to Nevada.
3
GAA's nexus to Nevada is conceded.
[Headnotes 3, 4]
A properly apportioned tax does not tax activities carried on outside the state's borders and
does not result in multiple taxation. Complete Auto, 430 U.S. at 282. See also General Motors
Corp. v. Washington, 377 U.S. 436, 440-441 (1964), reh'g denied, 379 U.S. 875 (1964).
Improper apportionment results in multiple taxation and multiple taxation is clearly
unconstitutional. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 452
(1959).
GAA's argument concerning apportionment focuses on two points: (1) that because NRS
372.3454 does not expressly provide an exemption for sales and use taxes paid in other states,
there is the possibility of multiple taxation and (2) that because appellant's airplane is partially
used and consumed outside of Nevada, Nevada can only tax a portion of the plane's value.
____________________

2
NRS 372.185 reads:
An excise tax is hereby imposed on the storage, use or other consumption in this state of tangible
personal property purchased from any retailer on or after July 1, 1955, for storage, use or other
consumption in this state at the rate of 2 percent of the sales price of the property.

3
GAA also challenged the tax on due process grounds. Due process challenges have focused on the taxing
jurisdiction's nexus to the taxpayer and whether the taxing jurisdiction provided services to the taxpayer for
which it could seek reimbursement, the first and fourth prongs of the Complete Auto test. See Commonwealth
Edison Co. v. Montana, 453 U.S. at 622-629; Chicago Bridge & Iron v. State, Dept. of Rev., 659 P.2d 463, 467
(Wash. 1983), appeal dismissed,
___
U.S.
___
, 104 S.Ct. 542 (1983). Because of this duplication, GAA's due
process concerns will not be treated separately.

4
NRS 372.345 reads:
The storage, use or other consumption in this state of property, the gross receipts from the sale of
which are required to be included in the measure of the sales tax, is exempted from the use tax.
[Headnote 5]
We need not address GAA's concern that Nevada's taxing scheme may result in multiple
taxation because GAA's failure to demonstrate actual multiple taxation is fatal to its
assignment of error. Whitcomb v. Commissioner of Taxes, 479 A.2d 164, 168 (Vt. 1984).
GAA's counsel admitted that no sales tax was paid in Kansas, and there has been no showing
that other states are attempting to extract a functionally equivalent use tax from GAA.
Because of this failure of proof, we need not decide what effect a foreign jurisdiction's
uncredited sales or use taxes should have on Nevada's taxing scheme.
[Headnotes 6, 7]
GAA's argument that Nevada should apportion its use tax based upon the amount of miles
flown in Nevada or hours spent in Nevada would not only be administratively complicated
for both the state and the taxpayer, but also misconceives the function of a use tax,
5
namely,
to prevent evasion of the state sales tax.
As the district court judge ably noted,
[A] use tax is imposed upon an out-of-state purchase by a state resident when the object
of the purchase is used, stored or consumed within the taxing state. NRS 372.185. The
incidence of taxation of the use tax is the residency of the purchaser, the out-of-state
purchase, and the use, storage or consumption of the purchased object within the state.
If these three incidents occur in one state, that state may assess a use tax on the entire
purchase price. Id. Under these circumstances, there is no danger of multiple state
taxation of the same tax incidences. The use tax is a fairly apportioned tax. (Emphasis
added.)
In Commonwealth Edison, while rejecting the notion of a local event, the Supreme
Court dismissed an apportionment challenge by noting: Nor is there any question here
regarding apportionment or potential multiple taxation, for as the state court observed, the
severance can occur in no other state' and no other state can tax the severance.'
Commonwealth Edison, 453 U.S. at 617. Viewing the use tax as complimentary to the sales
tax, only Nevada has a sufficient nexus with GAA to levy a use tax upon its out-of-state
airplane purchase.
____________________

5
Use taxes are a form of excise tax. They have long withstood constitutional challenge and are employed by
all states that have sales taxes in order to prevent evasion of the sales tax, to equalize the burdens on interstate
and intrastate transactions, and to expand the reach of the sales tax beyond state boundaries. The use tax is
complementary to the sales tax. White, State Sales and Use TaxesVariations, Exemptions, and the Aviation
Industry, 45 Journal of Air Law and Commerce, 509, 515-516 (1980). (Footnote omitted.)
tax upon its out-of-state airplane purchase. The special relationship between sales and use
taxes, along with the Complete Auto criteria, makes the tax in the case at bar inherently
apportioned.
[Headnote 8]
GAA also contends that Nevada's use tax unduly burdens interstate commerce because it is
discriminatory. The discrimination prong of the Complete Auto test requires that the state
place no greater burden upon interstate commerce than it places upon competing intrastate
commerce of like character. Complete Auto, 430 U.S. at 282.
[A] State may not discriminate between transactions on the basis of some interstate
element. Boston Stock Exchange, supra, 429 U.S., at 332, n. 12, 97 S.Ct., at 608, n.
12. That is, a State may not tax a transaction or incident more heavily when it crosses
state lines than when it occurs entirely within the State.
Armco, Inc. v. Hardesty,
___
U.S.
___
,
___
, 104 S.Ct. 2620, 2622 (1984), reh'g denied,
___
U.S.
___
, 105 S.Ct. 285 (1984).
[Headnote 9]
Nevada's use tax, like the gross proceeds sales tax in Chicago Bridge & Iron v. State, Dept.
of Rev., 659 P.2d 463, 472 (Wash. 1983), appeal dismissed,
___
U.S.
___
, 104 S.Ct. 542
(1983) treats intrastate and interstate businesses equally, making no distinction between
them. Any air carrier headquartered in Nevada, whether intrastate or interstate, making an
out-of-state purchase of an airplane which will be used, consumed or stored in Nevada, is
potentially subject to use taxation. Under such circumstances, there is no discrimination
because intrastate and interstate commerce are equally burdened.
[Headnotes 10-12]
In passing, GAA argues that Nevada's use tax is not fairly related to values attributable to
Nevada. This prong of the Complete Auto test was addressed in Commonwealth Edison. The
inquiry is premised on whether the state has given anything for which it can ask return and is
closely allied with the nexus inquiry. The greater the nexus, the less likely a benefits
challenge will be sustained. Because GAA has a substantial nexus with Nevada and derives
many benefits from being a Nevada corporation headquartered in Reno, the tax is fairly
related to values attributable to Nevada.
6
[Headnotes 13-15]
____________________

6
We also conclude, under the former test for state taxation of interstate commerce, that there was a taxable
moment, Southern Pacific Co. v. Gallagher, 306 U.S. 167 (1939), in Nevada, when GAA's aircraft had ended its
interstate transportation and not yet begun interstate operation. The taxable moment was the storage which
occurred when the aircraft returned from
[Headnotes 13-15]
NRS 372.320 exempts an occasional sale from sales and use taxation. The specific facts
of each case are critical to evaluating whether a transaction is exempted as an occasional
sale. Additionally, the taxpayer bears the burden of proving that he is entitled to the
exemption. See Pacific Pipeline Const. Co. v. State Board of Equal., 321 P.2d 729, 732 (Cal.
1958). Because GAA failed to prove that its purchase from TWA was an occasional sale,
the exemption does not apply.
GAA's remaining contentions lacking merit, we affirm the decision of the district court.
____________________
Kansas City and was stored in Reno prior to beginning interstate operation on September 26, 1979. Compare W.
R. Grace & Co. v. Comptroller of Treasury, etc., 258 A.2d 740 (Md. 1969) with Management Servs., Inc. v.
Spralding, 547 S.W.2d 466 (Mo. 1977) and American Airlines, Inc. v. State Bd. of Equalization, 30 Cal.Rptr.
590 (Cal.App. 1983).
____________
101 Nev. 429, 429 (1985) Safeco Ins. Co. v. Capri
SAFECO INSURANCE COMPANY, Appellant, v. RICHARD CAPRI, Individually, and
Doing Business as RACE, INC., a Nevada Corporation, Respondent.
No. 15894
August 27, 1985 705 P.2d 659
County; Howard W. Babcock, Judge.
Fire insurer brought subrogation action against tenant of insured landlord for negligently
causing fire on leased premises and moved for summary judgment. Tenant filed cross-motion
for summary judgment, asserting the lease as a defense to subrogation claim. The district
court granted summary judgment for tenant, and insurer appealed. The Supreme Court held
that since lease contained no express provision establishing tenant's liability for negligently
started fires, tenant was an implied co-insured of the landlord for limited purpose of defeating
insurer's subrogation claim, and no material issues of fact prevented judgment as a matter of
law for tenant.
Affirmed.
Harding & Dawson and Frederick S. Geihs, Las Vegas, for Appellant.
Michael R. Zervas, Las Vegas, for Respondent.
1. Insurance.
Insurer cannot recover by means of subrogation against its own insured.
2. Insurance.
Absent express provision in lease establishing tenant's liability for loss from negligently started fires,
premises insurance is generally considered to have been obtained for mutual benefit of both parties and
tenant stands in the shoes of the insured landlord for the limited purpose of defeating a subrogation claim
by insurer.
3. Insurance.
Tenant was implied co-insured of insured landlord for limited purpose of defeating fire insurer's
subrogation claim against tenant under theory that insurer cannot exercise a right of subrogation against a
co-insured, where lease contained no express provision establishing tenant's liability for negligently started
fires and specifically provided that landlord was to maintain fire insurance.
OPINION
Per Curiam:
The appellant in this case, Safeco Insurance Company (Safeco), appeals to this Court
contending the lower court improperly granted respondent's motion for summary judgment.
We disagree. For the following reasons, we affirm the district court's order.
On July 1, 1977, Richard Capri (Capri) and Patrick J. and Bonnie Friel entered into a
five-year lease agreement regarding the business known as Valley Cycle, located at 6029
West Charleston, Las Vegas, Nevada. Pursuant to the lease, Capri was the lessee and the
Friels were the lessors.
On June 14, 1979, Capri began welding rebar to a fence on the leased premises. A piece of
hot slag from a welding rod dropped off onto a box and immediately caught fire. The wind,
blowing south to north at approximately 20 to 30 miles per hour, blew the fire northward into
an accumulation of trash and then onto the leased building. The resulting damage to the
building was repaired at a cost of $16,546.60.
Safeco issued its fire insurance policy to the Friels covering the subject property. This
policy was in full force and effect on the day of the fire. Accordingly, Safeco covered the fire
loss. Thereafter, Safeco filed a subrogation action against Capri and moved for summary
judgment, asserting Capri was negligent as a matter of law in causing the fire. Capri opposed
the motion and filed a cross-motion for summary judgment asserting the lease as a defense to
the subrogation claim notwithstanding Capri's negligence. Safeco likewise opposed Capri's
motion. The trial court granted Capri's motion for summary judgment. This appeal ensued.
Safeco contends that the lower court erred in construing the lease agreement between
Capri and Safeco's insureds as exculpating Capri from liability for the fire damage to the
leased premises.
lease agreement between Capri and Safeco's insureds as exculpating Capri from liability for
the fire damage to the leased premises. Safeco asserts that although the Friels, as landlords,
agreed to maintain fire insurance on the leased premises, such an agreement did not exempt
Capri, as lessee, from liability for damage caused by his negligence. We disagree and affirm
the district court's decision.
[Headnotes 1, 2]
It is well established that an insurer cannot recover by means of subrogation against its
own insured. See Alaska Insurance Company v. RCA Alaska Commun., 623 P.2d 1216
(Alaska 1981). Hence, if Capri is considered a co-insured of the Friels then Safeco cannot
exercise a right of subrogation against Capri. Absent an express provision in the lease
establishing the tenant's liability for loss from negligently started fires, courts find that the
premises insurance was obtained for the mutual benefit of both parties and that the tenant
stands in the shoes of the insured landlord for the limited purpose of defeating a subrogation
claim. Rizzuto v. Morris, 592 P.2d 688, 690 (Wash.App. 1979); see also, Liberty Mutual
Fire Insur. Co. v. Auto Spring Sup. Co., 131 Cal.Rptr. 211 (App. 1976); Alaska Ins. Co.,
supra, 623 P.2d at 1218.
[Headnote 3]
The lease in the present case provided that the lessee (Capri) was to maintain the premises
and surrender it in good condition, damage by the elements excepted. Safeco opines that
such an exception did not exempt fire caused by negligence. Nevertheless, other than the
above quoted exception, there is no express provision in the lease establishing Capri's liability
for negligently started fires. Moreover, the lease agreement specifically provides that the
landlord is to maintain fire insurance. The Court has held that [a]ny ambiguity or uncertainty
in an insurance policy must be resolved against the insurer and in favor of the insured. Nat'l
Union Fire Ins. v. Reno's Exec. Air, 100 Nev. 360, 682 P.2d 1380 (1984). Accordingly, under
the facts of this case, Capri is a co-insured of the landlord for the purpose of defeating
Safeco's subrogation claim. See Sutton v. Jondahl, 532 P.2d 478 (Ok.App. 1975).
In Nat'l Union Fire Ins., supra, 682 P.2d 1380, this Court held an insurance policy should
be construed so as to effectuate the reasonable expectations of the insured. The above cited
decisions articulate several reasons why the reasonable expectations of both the insured and
the insurer are satisfied when a tenant is considered a co-insured of the landlord absent an
express agreement to the contrary.
It is not uncommon for the lessor to provide fire insurance on the leased property. As a
matter of sound business practice, the premium to be paid had to be considered in
establishing the rental rate.
premium to be paid had to be considered in establishing the rental rate. Also, such premiums
would be chargeable against the rent as an overhead or operating expense. Accordingly, the
tenant actually paid the premium as part of the monthly rental. Sutton, supra, 532 P.2d at 482.
Courts therefore consider it to be an undue hardship to require a tenant to insure against his
own negligence, when he is paying, through his rent, for the fire insurance which covers the
premises. Rock Springs Realty, Inc. v. Waid, 392 S.W.2d 270, 278 (Mo. 1965).
Moreover, insurance companies expect to pay their insureds for negligently caused fires
and adjust their rates accordingly. In this context, an insurer should not be allowed to treat a
tenant, who is in privity with the insured landlord, as a negligent third party when it could not
collect against its own insured had the insured negligently caused the fire. Monterey Corp. v.
Hart, 224 S.E.2d 142, 146 (1976). The Sutton court stated that by not extending fire insurance
to the insurable interest of the occupying tenant is to ignore the realities of urban apartment
and single-family dwelling renting. Supra, 532 P.2d at 482. The court continued by stating:
Prospective tenants ordinarily rely upon the owner of the dwelling to provide fire
protection for the realty (as distinguished from personal property) absent an express
agreement otherwise. Certainly it would not likely occur to a reasonably prudent tenant
that the premises were without fire insurance protection or if there was such protection
it did not inure to his benefit and that he would need to take out another fire policy to
protect himself from any loss during his occupancy. Perhaps this comes about because
the companies themselves have accepted coverage of a tenant as a natural thing.
Otherwise their insurance salesmen would have long ago made such need a matter of
common knowledge by promoting the sale to tenants of a second fire insurance policy
to cover the real estate.
This same philosophy was expressed in Keeton, Insurance Law 4.4(b) at 210 (1971):
Probably it is undesirable, from the point of view of public interest, that the risk of
loss from a fire negligently caused by a lessee be upon the lessee rather than the lessor's
insurer. Allowing the lessor's insurer to proceed against the lessee is surely contrary to
expectations of persons other than those who have been exposed to this bit of law either
during negotiations for a lease or else after a loss . . . [P]erhaps [the courts] should at
least adopt a rule against allowing the lessor's insurer to proceed against the lessee
when lease provisions are ambiguous in this regard and the insurance policy is silent
or ambiguous.
provisions are ambiguous in this regard and the insurance policy is silent or ambiguous.
The Rizzuto court concluded that if the lessors did not expect to cover the lessee under
their policy, then they should have expressly notified the lessee of the need for a second
policy to cover its interest. Since they failed to do so, they have no cause of action against
the lessee for the fire damage, and the insurance company has no right of subrogation.
Supra, 592 P.2d at 691. The parties to this appeal likewise could have agreed that the
respondent was to maintain fire insurance, yet they did not. Respondent's natural expectancy
was that any fire damage would be fully covered by insurance acquired by the landlord. The
weight of authority establishes that since the lease agreement does not clearly establish the
tenant's liability for fire loss caused by his own negligence, the tenant is, for the limited
purpose of defeating an insurer's subrogation claim, an implied coinsured of the landlord.
Accordingly, Safeco's additional contention that the lower court erred in not finding Capri
negligent as a matter of law is irrelevant and need not be addressed because the law would
preclude Safeco from recovering in any event.
We have considered the appellant's arguments and reviewed the record and conclude that
there are no material issues of fact that need to be determined in this case and respondent was
entitled to a judgment as a matter of law. See Hughes Properties v. State of Nevada, 100 Nev.
295, 680 P.2d 970 (1984); NRCP 56(c). We therefore affirm the lower court's order granting
respondent's motion for summary judgment.
____________
101 Nev. 433, 433 (1985) Mid-Century Ins. v. Daniel
MID-CENTURY INSURANCE COMPANY, a Corporation, Appellant and
Cross-Respondent, v. JAN ELLEN MILLER DANIEL, Respondent and Cross-Appellant.
No. 15714
August 28, 1985 705 P.2d 156
Appeal from an order granting partial summary judgment and cross-appeal from entry of
judgment; Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Partial summary judgment in favor of insured motorist's claim was entered in the district
court and insurer appealed. The Supreme Court held that: (1) statute as it read before
amendment and as amended provided that, where insured's damages exceed limits of
coverage carried by owner or operator of other vehicle, insured's underinsured motorist
coverage becomes effective, and {2) insured was entitled to recover underinsured
benefits to the extent that her damages exceeded recovery from other motorist and from
her own no-fault coverage, but not to extent of any double recovery.
insured's underinsured motorist coverage becomes effective, and (2) insured was entitled to
recover underinsured benefits to the extent that her damages exceeded recovery from other
motorist and from her own no-fault coverage, but not to extent of any double recovery.
Affirmed.
Beckley, Singleton, DeLanoy & Jemison, J. Mitchell Cobeaga and Frances A. Forsman,
Las Vegas, for Appellant and Cross-Respondent.
Fitzgibbons, Cobb & Morrell and Paul L. Larsen, Las Vegas, for Respondent and
Cross-Appellant.
Allan R. Earl, J. R. Crockett, Jr., and Jack Lehman, Las Vegas, and David Gamble, Carson
City, for Nevada Trial Lawyers Association, Amicus Curiae.
1. Insurance.
Excess-type underinsured motorist protection allows insured to recover when damages exceed limits of
tortfeasor's insurance coverage; reduction-type underinsurance motorist protection requires that insured's
underinsured motorist coverage be reduced by amount recoverable under tortfeasor's policy.
2. Insurance.
Even before 1983 amendment, underinsured motorist statute, NRS 687B.145, subd. 2, provided for
excess-type coverage under which underinsured motorist coverage becomes effective when insured's
damages exceed tortfeasor's bodily injury coverage limits.
3. Insurance.
Antistacking provisions prohibiting multiple recovery where insured has paid a separate premium for the
coverage are void, but recovery is limited to compensation to the full extent of insured's injuries.
4. Insurance.
Where insured motorist recovered maximum amount from other motorist's bodily liability coverage and
recovered reparation benefits from her own no-fault coverage, insured motorist was entitled to recover
underinsured benefits on her policy to extent that her damages exceeded recovery from other motorist and
from her no-fault coverage, but not to extent of any double recovery.
OPINION
Per Curiam:
We are required in this appeal to interpret the 1979 version of NRS 687B.145 which
directs insurance carriers to provide uninsured and underinsured motorist protection to their
policy holders. Because we conclude that the district court's interpretation is supported by the
plain language of the statute, we affirm.
Respondent and cross-appellant Jan Ellen Miller Daniel (Daniel) sustained injuries when
her vehicle was struck from behind by a vehicle operated by Lee Hua Mulnix (Mulnix). An
arbitrator later determined Daniel's damages, which included all medical expenses, economic
losses, and pain and suffering, to be $25,628.15
Both Daniel and Mulnix were covered by the same insurance carrier, appellant and
cross-respondent Mid-Century Insurance Company (Mid-Century). The limits on Daniel's and
Mulnix's third party liability insurance were identical: $15,000.00 per person, $30,000.00 per
occurrence. In addition to her liability coverage, Daniel's policy included no-fault and
uninsured/underinsured motorist protection. Daniel settled her claim against Mulnix for
$15,000.00, the maximum amount recoverable under Mulnix's policy with Mid-Century.
After settling her claim against Mulnix's policy, Daniel brought an action against
Mid-Century for declaratory relief seeking additional compensation under the terms of her
own policy. The district court granted Daniel partial summary judgment, finding Mid-Century
liable under Daniel's underinsured motorist protection for any damages not recoverable under
Mulnix's policy. Daniel requested entry of judgment for $10,628.15. Because Daniel had
received $10,000.00 in reparation benefits under her own no-fault policy, the district court
denied the motion and entered judgment for $628.15. From this order both parties appeal.
The primary issue presented for our consideration is whether NRS 687B.145(2), as it read
in 1979,
1
encompasses excess-type or reduction-type underinsured motorist protection.
Mid-Century argues that the statute incorporates the latter; Daniel argues for the former.
[Headnote 1]
The excess approach allows the insured to recover when his damages exceed the limits of
the tortfeasor's insurance coverage. For example, if the tortfeasor had $15,000.00 in liability
coverage but the insured suffered damages of $20,000.00, the insured could collect the excess
$5,000.00 in damages on his underinsured motorist policy.
____________________

1
NRS 687B.145 was amended in 1983. The amended version is not applicable here because the accident
giving rise to this litigation occurred in September, 1979. The 1979 version of NRS 687B.145(2) provided:
limits of bodily injury coverage sold to the individual policyholder. Uninsured motorist coverage must
include a provision which enables the insured to recover any amount of damages for bodily injury from
his insurer to which he is legally entitled but which exceeds the limits of the bodily injury coverage
carried by the owner or operator of the other vehicle.
sured motorist policy. NRS 687B.145(2) requires carriers to offer underinsured motorist
coverage up to the limits of the insured's liability coverage. Therefore Daniel, with the
minimum $15,000.00 per person coverage on her liability policy, had $15,000.00 coverage on
her underinsured motorist policy. Under the excess analysis, Daniel would then be able to
recover any damages in excess of the $15,000.00 recoverable under Mulnix's policy from her
underinsured motorist policy up to her own $15,000.00 limit.
Conversely, under the reduction approach, Daniel would not be able to recover any excess
damages because her $15,000.00 in underinsured motorist coverage equalled the $15,000.00
in liability coverage of the tortfeasor. In this analysis the insured's underinsured motorist
coverage is reduced by the amount recoverable under the tortfeasor's policy. Therefore
Daniel's $15,000.00 coverage in underinsured motorist protection would be reduced to zero
by Mulnix's $15,000.00 in liability coverage.
Mid-Century concedes that NRS 687B.145(2), as amended in 1983,
2
provides for
excess-type underinsured motorist coverage. Mid-Century contends, however, that the
legislature amended, not clarified, the statute in 1983. From July 1, 1979, when the
underinsurance provision was first enacted, to July 1, 1983, when it was amended,
Mid-Century asserts that the statute incorporated the reduction approach.
[Headnote 2]
We agree with Daniel, however, that legislative intent to embrace the excess method is
evident from the plain language of the original enactment. We will not, therefore, resort to
extrinsic authorities in an effort to deduce legislative intent. See Cirac v. Lander County, 95
Nev. 723, 729, 602 P.2d 1012 (1979). The disputed language is repeated here for ease of
reference:
Uninsured motorist coverage must include a provision which enables the insured to
recover any amount of damages for bodily injury from his insurer to which he is legally
entitled but which exceeds the limits of the bodily injury coverage carried by the owner
or operator of the other vehicle.
(Emphasis added).
We interpret this language to mean that the insured's damages must exceed the limits of
the coverage carried by the owner or operator of the other vehicle.
____________________

2
NRS 687B.145 (2) now reads:
limits of bodily injury coverage sold to the individual policy holder. 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.
must exceed the limits of the coverage carried by the owner or operator of the other vehicle.
The phrase any amount of damages logically modifies the clause which exceeds the limits
of the . . . coverage carried by the owner . . . of the other vehicle. Hence, underinsured
motorist coverage becomes effective when the insured's damages exceed the tortfeasor's
bodily injury coverage limits.
Because the language of the statute is plain, we need not consider the parties' contentions
regarding the intent behind the subsequent amendment and the merits of one approach versus
the other. When the plain language of an original enactment is consistent with the language of
an amendment, we need not infer amendatory intent. We therefore conclude that the 1983
alteration of the statutory language must have been a clarification of the legislature's original
intent to incorporate the excess approach.
[Headnote 3]
In her cross-appeal Daniel argues that NRS 687B.145(1)
3
prohibits Mid-Century from
using her reparation benefits to set off her underinsured motorist benefits. Mid-Century
correctly points out, however, that the district court did not allow a set-off but merely
precluded Daniel from receiving a double recovery. NRS 687B.145(1) invalidates
anti-stacking provisions in insurance policies where the insured has paid a separate
premium for the coverage. Even before the passage of NRS 687B.145(1), we consistently
struck down as void anti-stacking provisions where the insured had purchased multiple
coverage for the same risk. See Travelers Insurance Co. v. Lopez, 93 Nev. 463, 567 P.2d 471
(1977); Staten v. State Farm Mut. Auto Ins., 94 Nev. 283, 579 P.2d 766 (1978). See also
Neumann v. Standard Fire Insurance Co., 101 Nev. 206, 699 P.2d 101 (1985). We have never
permitted the stacking of multiple policies, however, to allow an insured a double recovery
for the same loss. Because Daniel has received
____________________

3
NRS 687B.145(1) provides as follows:
687B.145 Provisions in policies of casualty insurance: Proration of recovery or benefits between
policies; uninsured motorist coverage.
1. Any policy of insurance or endorsement providing coverage under the provisions of NRS
690B.020 or other policy of casualty insurance may provide that if the insured has coverage or been
awarded compensation to the available to him under more than one policy or provision of
coverage, any recovery or benefits may equal but not exceed the higher of the applicable limits of the
respective coverages, and the recovery or benefits must be prorated between the applicable coverages in
the proportion that their respective limits bear to the aggregate of their limits. Any provision which limits
benefits pursuant to this section must be in clear language and be prominently displayed in the policy,
binder or endorsement. Any limiting provision is void if the named insured has purchased separate
coverage on the same risk and has paid a premium calculated for full reimbursement under that coverage.
or been awarded compensation to the full extent of her injuries,
4
we conclude that Daniel is
not entitled to an additional $10,000.00 in underinsured motorist benefits. To hold otherwise
would allow Daniel a double recovery for the same item of damages.
[Headnote 4]
Before its repeal, NRS 690B.020(7) provided: To the extent that a person is entitled to
basic reparation benefits under chapter 698 of NRS [no-fault], he may not recover payments
under uninsured motor vehicle coverage.
5
In a previous examination of NRS 690B.020(7)
we concluded that the Legislature intended NRS 690B.020(7) to preclude only a double
recovery of benefits under both the no-fault and uninsured motorist provisions of a policy.
Staten v. State Farm Mut. Auto Ins., 94 Nev. 283, 285, 579 P.2d 766 (1978). See also Bryan
v. Allen, 96 Nev. 572, 573, 613 P.2d 412 (1980) (appellants' jury award properly reduced by
amount of previously paid reparation benefits because injured party . . . not entitled to
multiple recovery for the same loss). Thus NRS 690B.020(7) authorized the stacking of
no-fault and uninsured motorist benefits, but only when the insured's damages exceeded the
reparation coverage limits. Daniel is not entitled to underinsured motorist benefits to the
extent that her damages were compensated by her reparation benefits. Accordingly, we affirm
the district court's judgment that Daniel is entitled to recover $628.15, not $10,628.15, from
her underinsured motorist policy.
6

____________________

4
The arbitrator determined Daniel's damages to be $25,628.15. Daniel has received or been awarded
compensation as follows: $15,000.00 from Mulnix's policy; $10,000.00 in reparation benefits from her own
no-fault policy; $628.15 from her underinsured motorist policy as awarded by the district court.

5
NRS 690B.020(7) was repealed along with chapter 698 when the Legislature phased out no-fault insurance.
This statute governs this case, however, because the accident occurred on September 19, 1979 when the no-fault
provisions were still in effect. See Laughlin v. Hydro Search, Inc., 96 Nev. 872, 620 P.2d 373 (1980) (courts
must still decide cases according to no-fault statutes which arose during the period 1973-1980).
NRS 690B.020(7) is applicable to underinsured motorist coverage as well as uninsured motorist coverage.
Underinsured motorist coverage is not designated as such in NRS 687B.145(2) but merely included as a
component under the uninsured motorist rubric. Logically, then, all references to uninsured coverage must also
reference underinsured coverage.

6
Daniel also contends that Mid-Century waived its right to set off the $10,000.00 no-fault payment against
her underinsured motorist policy. Daniel argues that Mid-Century should have notified Daniel it would be
claiming a set-off when it concluded the $15,000.00 settlement on Mulnix's policy. This contention is without
merit. Daniel's claim under Mulnix's policy was distinct from her claim under her own underinsured motorist
policy; Mid-Century was under no obligation to notify Daniel of an intention to set-off when the alleged
set-off had nothing to do with the current settlement.
____________
101 Nev. 439, 439 (1985) Snow v. State
JOHN OLIVER SNOW, Appellant, v. THE
No. 15897
August 28, 1985 705 P.2d 632
Appeal from judgment of conviction for conspiracy to commit murder and first degree
murder with use of a deadly weapon, and imposition of penalty of death. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted of conspiracy to commit murder and first degree murder with use
of a deadly weapon and penalty of death was imposed by the district court and defendant
appealed. The Supreme Court, Mowbray, J., held that: (1) evidence that coconspirators
referred to defendant by name as person hired to kill victim and other testimony of references
to man called by defendant's name was sufficient to return indictment, even though no grand
jury witness identified defendant's photograph as person to which they were referring; (2)
jurors' statement that they had previously formed opinion on defendant's guilt was not
grounds for excluding them for cause, where jurors stated that they would be able to keep an
open mind as to defendant's guilt until verdict was reached; and (3) defendant could not argue
that he was prejudiced by prosecutor's misrepresentation that witness had identified defendant
in photographic line-up, where defendant did not object at trial.
Affirmed.
Joseph W. Houston, II, Las Vegas, for Appellant.
Tufteland, Deputy District Attorney, and Robert W. Teuton, Deputy District Attorney, Clark
County, for Respondent.
1. Habeas Corpus.
Immediate appeal from denial of pretrial petition for habeas corpus is precluded by NRS 34.380.
Only probable cause of identity is required when testing sufficiency of indictment; identity of name is
sufficient to prove identity of person in absence of contradictory evidence.
Evidence that coconspirators referred to defendant by name as person hired to kill victim, witnesses'
testimony that they saw black man running from scene of murder, that relative of conspirator was asked to
give ride to person by name of defendant, and fact that defendant was black was sufficient for grand jury to
find probable cause, even though no witness could identify defendant's photograph as person to whom they
were referring.
101 Nev. 439, 440 (1985) Snow v. State
4. Jury.
Juror who indicated that his views on death penalty would prevent or substantially impair performance of
his duties was properly excluded for cause.
5. Jury.
Failure to exclude for cause two jurors who indicated that they had previously formed opinion on
defendant's guilt was not improper, where both stated that they would set aside their previous opinions and
would be able to keep open mind as to defendant's guilt until verdict was reached. NRS 16.050, subds. 1,
1(f).
6. Criminal Law.
Telephone records were properly admitted under business records exception to hearsay rule, where
custodian of records from respective companies testified concerning how records were kept.
7. Criminal Law.
Contents of defendant's wallet were properly admitted as evidence seized during search following valid
arrest.
8. Criminal Law.
Appellate court is not obligated to consider issues which have not been preserved for appeal.
9. Criminal Law.
Defendant was not prejudiced by prosecutor's statement in jury argument that witness had identified
defendant in photographic line-up, when in fact witness had only been able to identify defendant in court,
where there was no evidence that misrepresentation was intentional and defendant did not object at trial.
10. Criminal Law.
Prosecutor's comment on defense counsel's closing argument, that, if you really believe that, why did
you argue for forty minutes?, was not impermissible, and any error was harmless beyond reasonable doubt
due to overwhelming evidence of defendant's guilt.
11. Criminal Law.
Prosecutor's reference to jurors as representatives of state was cured by trial court's admonishment to
jury to disregard statement.
12. Criminal law.
Prosecutor's use of we during jury argument that suggested that jury was aligned with prosecution was
cured by court's admonishment of jury.
13. Homicide.
NRS 200.030, subd. 4, is not unconstitutionally vague on ground that it places burden on accused to
prove that mitigating circumstances outweigh aggravating circumstances in order to avoid imposition of
death penalty.
14. Criminal Law.
Proportionality review of defendant's sentence was required, even though statute, NRS 177.055, subd.
2(c), (d), was amended to abolish the proportionality review requirement, since prohibition against ex post
facto laws required that appellate court apply law as it existed when crime was committed.
15. Homicide.
Imposition of death penalty for murder for hire was not disproportionate to penalty imposed in similar
cases, where defendant had previously been convicted of crime involving use or threat of violence, murder
was committed for purpose of receiving money and jury found no mitigating circumstances.
101 Nev. 439, 441 (1985) Snow v. State
OPINION
A jury convicted appellant John Oliver Snow of conspiracy to commit murder and first
degree murder with use of a deadly weapon for the shooting death of Harry Wham. At the
penalty hearing, on the first degree murder conviction, the jury found the homicide was
committed under three aggravating circumstances and no mitigating circumstances. The jury
returned the penalty of death. On appeal, Snow raises several assignments of error, none of
which is of sufficient merit to warrant reversal of the judgment of conviction or the sentence.
Therefore, we affirm.
THE FACTS
As the hired assassin in the conspiracy to kill Harry Wham, Snow was paid several
thousand dollars by the principal members of the conspiracy: Peggy Wham, Harry's wife, and
her lover, Joseph Douglas Parker (Doug Parker). Also involved were Kathy Faltinowski,
Peggy's daughter and Harry's step-daughter, and John David Parker (John Parker), Kathy's
lover and the brother of Doug.
1

The conspiracy to kill Harry Wham began in the fall of 1982. Kathy Faltinowski testified
that she overheard a conversation between Doug Parker and her mother in late November
during which Peggy Wham said she wanted her husband killed. Sally Cook, Peggy's sister,
testified that Doug Parker told her that he, John Parker and Peggy were going to have Harry
Wham killed by hiring someone from back east. This conversation took place between
Christmas and New Year's 1982. At that time, Snow shared an apartment at 801 Elizabeth, in
Newark, New Jersey, with his common-law wife, Ingrid Smith.
In early January 1983, Kathy Faltinowski drove with John and Doug Parker to Los
Angeles and picked up John Biancone at the airport. Biancone also lived in New Jersey.
Kathy overheard Doug ask Biancone to murder Harry Wham. Biancone agreed to commit the
crime for $5,000 in advance and $5,000 after the murder was completed.
____________________

1
Peggy Wham was convicted of conspiracy to commit murder, attempted murder with use of a deadly
weapon, and first degree murder with use of a deadly weapon. On the last count, Peggy was sentenced to two
consecutive sentences of life without parole. Peggy's appeal, No. 15427, is pending before this Court. Doug
Parker pleaded guilty to first degree murder with use of a deadly weapon. He was sentenced to two consecutive
sentences of life with the possibility of parole. Kathy Faltinowski pleaded guilty to second degree murder and
was sentenced to life with the possibility of parole in five years. John Parker pleaded guilty to first degree
murder with use of a deadly weapon. John Parker was sentenced to life with the possibility of parole.
101 Nev. 439, 442 (1985) Snow v. State
murder was completed. Peggy Wham gave Kathy Faltinowski $5,000 to give to Doug. Peggy
said she had stolen the money from the safe at the Keyboard Lounge which she owned with
Harry Wham. Biancone then left Las Vegas. About one week before January 26, 1983, Kathy
Faltinowski saw Biancone who is white, with Snow, who is black, in Las Vegas.
On January 26, 1983, Harry Wham was shot in what appeared to be a robbery. Harry told
police that he parked his pick-up on the street near his town house around 11:00 p.m. A black
man got out of the passenger side of a nearby car and demanded that Harry get out of his
truck, hand over his money, and turn around. Harry thought he saw a white male on the
driver's side. The black man then shot Harry in the neck. Harry was injured but spent only
twenty-four hours in the hospital. Harry remarked at the time that he did not believe it was a
genuine robbery. After the shooting, Doug Parker told Kathy Faltinowski and John Parker
that Biancone drove the car the night of January 26 and that Snow shot Harry Wham in the
back of the head.
Between January 26 and February 13, 1983, John Parker and Doug Parker told Kathy
Faltinowski that Snow and Biancone
2
were going to come back and finish the job. During
this same period, Sally Cook heard John and Doug talking about how the man was
impatient and wanted to finish the job. John then said he would call the man and took out a
slip of paper that had the words John Snow and New Jersey written on it, as well as an
address or a phone number.
A few days before February 13, 1983, Peggy Wham gave John Parker the key to the
Wham garage. When Kathy Faltinowski was present, John and Peggy cleaned out the garage
and arranged boxes at the side to form a hiding place. Arlen Edwards, Harry Wham's next
door neighbor, testified about the existence of the hiding place immediately after Harry
Wham was murdered in the garage.
At 1:30 p.m. on February 13, 1983, Kathy Faltinowski and John Parker drove to the
Golden City Motel to pick up Snow. He came out of Room 106. Snow was wearing a dark
pinstripe suit. He had a revolver with a silencer on it. The three drove to Peggy and Harry
Wham's town house on Pecos Way in Las Vegas. John unlocked the Whams' garage door
using the key given him by Peggy. Snow put on rubber gloves and hid behind the boxes. John
and Kathy Faltinowski left the Whams around 2:00 p.m.
Arlen and Jody Edwards lived in the town house next door to the Whams. At 4:20 p.m. on
February 13, 1983, Arlen and Jody walked out of their house and into their garage. They both
heard "popping" noises and then saw a black man in a dark suit run from the Wham
garage.
____________________

2
The record does not reveal whether Biancone was ever arrested or charged for his participation in the
conspiracy to kill Harry Wham.
101 Nev. 439, 443 (1985) Snow v. State
popping noises and then saw a black man in a dark suit run from the Wham garage. Arlen
saw only part of the man's face and could not identify Snow as that man. Arlen chased the
man and lost sight of him as he ran across a desert area toward the Wagon Wheel Apartments
on Pecos Road. Kathy Faltinowski lived in the Wagon Wheel Apartments about four blocks
from the Wham town house.
At Snow's trial, Jody Edwards testified that she saw all of the black man's face as he
paused just outside the Whams' garage. She identified Snow as that man in court. Jody
admitted that she testified at the previous trial of Peggy Wham that she could not identify the
man who ran from the garage. Jody testified that she had lied before because she had been
threatened by Peggy and by Kathy Faltinowski.
Immediately after the shooting on February 13, 1983, Arlen Edwards found Harry Wham
sitting in his car bleeding heavily. Harry died before the paramedics arrived. His death was
due to multiple gunshot wounds in the face and head.
Around 4:30 p.m., on February 13, 1983, John Parker and Kathy Faltinowski were driving
down Pecos Road. They saw Snow running towards Kathy's apartment. They returned to the
apartment joining Sally Cook who was also there. Sally testified that a few minutes later a
black man in a dark suit burst in demanding a ride. John asked Sally to give the black man,
whom he called John Snow, a ride. Sally refused. Kathy Faltinowski drove Snow back to the
Golden City Motel. During the drive, Snow told Kathy that he had just shot her stepfather.
On February 16, 1983, Sally Cook spoke with a friend about the Wham murder. The
friend, Richard Hansen, advised her to go to the police but Sally would not. Hansen reported
this to the police. Hansen agreed to wear a microphone and transmitting device when he next
spoke with Sally. The police taped a subsequent conversation between him and Sally. As a
result of this conversation, the police arrested Peggy Wham, Kathy Faltinowski, John and
Doug Parker on the afternoon of February 17, 1983.
In the morning of February 17, 1983, Doug Parker told Sally Cook that he had just given
the hit man $7,000 and that the hit man was on his way to San Francisco. Snow himself
testified that he flew from Las Vegas to San Francisco on that date. From a pay phone at the
San Francisco airport, a call was made just after twelve noon that day to the home of the
parents of the Parker brothers. The call was charged to the telephone at 801 Elizabeth, Snow's
apartment in Newark, New Jersey. The mother of Doug and John Parker testified that she
answered the telephone in her home in the early afternoon of February 17, 1983. The caller
left a message asking Doug to get in touch with Johnny. Another call shortly after the first
was placed from the same pay phone at the San Francisco airport and was charged to the
same number in New Jersey.
101 Nev. 439, 444 (1985) Snow v. State
shortly after the first was placed from the same pay phone at the San Francisco airport and
was charged to the same number in New Jersey. This call was made to a friend of Snow's,
Olivia Burnett, living in Fairfield, California. Burnett testified that Snow called her that day
to come pick him up at the airport.
Police investigators obtained additional information from Sally Cook which led to Snow
being indicted for Harry Wham's murder. A warrant for Snow's arrest was issued and
programmed into the National Crime Information computer. On March 4, 1983, Snow was
arraigned in Superior Court in New Jersey on unrelated charges. He was fingerprinted.
Snow's fingerprints called up the Nevada arrest warrant from the computer. As a result, Snow
was arrested and booked for the murder of Harry Wham.
Snow denied knowing either Doug or John Parker. In his wallet when Snow was arrested
was a piece of paper with Doug on it and the telephone number of the home of the Parkers'
parents. Snow also told police that the last time he had been in Las Vegas was in 1966 or
1967. At trial, evidence was introduced that Snow's fingerprint had been found in Room 106
at the Golden City Motel on February 17, 1983. Witnesses from the motel identified Snow as
the man who stayed in Room 106 for several days in February 1983.
Snow was charged with conspiracy to commit murder, first degree murder with use of a
deadly weapon and attempted murder. He was convicted of conspiracy to commit murder and
first degree murder with use of a deadly weapon. At the penalty hearing on the first degree
murder conviction, the State produced evidence that Snow pleaded guilty in 1962 to robbing
three victims in separate incidents. Following the penalty hearing, the jury returned a verdict
finding three aggravating circumstances: that the murder was committed by a person
previously convicted of a crime involving the use or threat of violence; that the murder was
committed during the commission or attempt of a burglary; that the murder was committed
for the purpose of receiving money or other things of monetary value. The jury found no
mitigating circumstances and sentenced Snow to death. Snow appeals from the judgment of
conviction and the death sentence.
THE LAW
[Headnote 1]
1. Snow argues that the district court erred in denying his pretrial petition for a writ of
habeas corpus. Snow alleged that there was insufficient evidence before the grand jury for it
to find probable cause to indict him. Immediate appeal from a denial of a pretrial petition for
habeas corpus is precluded by NRS 34.380.
101 Nev. 439, 445 (1985) Snow v. State
Gary v. Sheriff, 96 Nev. 78, 605 P.2d 212 (1980). Assuming, without deciding, that a
convicted defendant may challenge on appeal a denial of a pretrial petition for habeas corpus
predicated upon lack of probable cause to indict, we hold that in the case at bar there was
sufficient evidence from which the grand jury could find probable cause.
[Headnotes 2, 3]
The following evidence was presented to the grand jury concerning the identity of Harry
Wham's murderer: Sally Cook testified that Doug and John Parker referred to the person that
they had hired to kill Harry Wham as John or Johnny Snow of New Jersey on two occasions
before the murder. Arlen Edwards testified that he saw a black man wearing a dark suit run
from the Whams' garage after he had heard shots fired at 4:25 p.m. on February 13, 1983.
Sally was in Kathy Faltinowski's apartment, four blocks from the Whams' town house, that
day. Sally also testified that at 4:30 p.m. a black man in a dark suit burst into the apartment.
John asked Sally to give the man, whom he called John Snow, a ride, but Sally refused.
Detective Robert Allen testified that he determined that the killer was John Oliver Snow of
Newark, New Jersey. Snow argues that this evidence is insufficient because no witness before
the grand jury identified his photograph as the John Snow to which they were referring and
because Detective Allen did not give the factual basis for his conclusion that appellant was
the same John Snow. Only probable cause of identity is required when testing the sufficiency
of an indictment. Burton v. Sheriff, 93 Nev. 346, 565 P.2d 1010 (1977). The Burton court
specifically held that identity of name is sufficient to prove identity of person in the absence
of contradictory evidence. 93 Nev. at 347. We hold that the district court did not err in
denying Snow's petition for habeas corpus.
[Headnote 4]
2. Snow suggests that prospective juror Thornton was improperly excluded for cause due
to his views on the death penalty. See Witherspoon v. Illinois, 391 U.S 510 (1968). We
disagree. From our review of the record, we conclude that prospective juror Thornton
indicated that his views on the death penalty would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath'.
Wainwright v. Witt,
___
U.S.
___
, 105 S.Ct. 844, 853 (1985) (quoting Adams v. Texas,
448 U.S. 38, 45 (1980)). Therefore, prospective juror Thornton was properly excluded for
cause. Wainwright v. Witt, supra.
[Headnote 5]
3. Next, Snow contends that two jurors, Lorraine Van Compernolle and Dorothy Hansen,
should have been excluded for cause under NRS 16.050{1){f).3 That statute provides that
a juror may be challenged for cause if he or she has "formed or expressed unqualified
opinion as to the merits of the action."
101 Nev. 439, 446 (1985) Snow v. State
pernolle and Dorothy Hansen, should have been excluded for cause under NRS 16.050(1)(f).
3
That statute provides that a juror may be challenged for cause if he or she has formed or
expressed unqualified opinion as to the merits of the action. Both juror Van Compernolle
and juror Hansen indicated that they had previously formed an opinion on appellant's guilt
from their exposure to news media accounts of the crime. Neither juror represented that their
opinion was unqualified. Instead, both stated that they would set aside their previous
opinions and would be able to keep an open mind as to appellant's guilt until a verdict was
reached. Therefore, the district court did not err in refusing to exclude these two jurors.
Kaplan v. State, 96 Nev. 798, 800, 618 P.2d 354, 355-56 (1980).
[Headnotes 6, 7]
4. Snow also contends that certain evidence was improperly admitted at trial. Snow
challenges the admission of billing records of Centel Telephone in Las Vegas and of New
Jersey Bell. A custodian of records from the respective Companies testified concerning how
these records were kept. We hold that a proper foundation was laid and these records were
correctly admitted under the business records exception to the hearsay rule. NRS 51.135(1).
4
Snow also objected to the admission of the contents of his wallet, including a piece of paper
with Doug on it and the telephone number of the parents of John and Doug Parker. We
hold that the contents of Snow's wallet were admissible as evidence seized during a search
following a valid arrest. Hinton v. State, 84 Nev. 68, 436 P.2d 223 (1968).
[Headnotes 8-10]
5. Snow suggests that the prosecutor committed misconduct during closing argument in
both the guilt and the penalty phases.
____________________

3
Challenges for cause may be taken on one or more of the following grounds:
* * * * *
(f) Having formed or expressed an unqualified opinion or belief as to the merits of the action, or the
main question involved therein; but the reading of newspaper accounts of the subject matter before the
court shall not disqualify a juror either for bias or opinion.

4
A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinions or
diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all
in the course of a regularly conducted activity, as shown by the testimony of the custodian or other
qualified witness, is not inadmissible under the hearsay rule unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness.
101 Nev. 439, 447 (1985) Snow v. State
We have considered each assignment of error and have concluded that none is of sufficient
merit to warrant reversal.
At one point during argument in the guilt phase, the prosecutor stated that Jody Edwards
had identified Snow in a photographic line-up. Jody identified Snow in open court. She had
been unable to select his photograph from a group shown her by the police shortly after the
murder.
5
The prosecutor's statement misrepresented the facts in evidence. There was no
indication that the misrepresentation was intentional. Snow contends that Jody's identification
testimony was crucial to the State's case against him.
6
Therefore, he argues that his
conviction must be reversed because of the inadvertent misrepresentation. We note that the
defense did not object to the comment. We are not obligated to consider issues which have
not been preserved for appeal. Mercado v. State, 100 Nev. 535, 688 P.2d 305 (1984). We
cannot conclude that the jury's deliberations were tainted because of one remark, the
prejudicial effect of which could have been cured had an objection been raised at trial.
Mercado, 100 Nev. at 539.
[Headnote 11]
During closing argument in the guilt phase, the prosecutor referred to the jurors as
representatives of the community and the state. Snow did not object to the former
comment. Therefore, we need not address that claim of error. Mercado, supra. Snow objected
to the latter remark. We hold that any error was cured by the trial court's admonishment to the
jury to disregard the statement. Stickney v. State, 93 Nev. 285, 564 P.2d 604 (1977).
[Headnote 12]
Snow also challenges the prosecutor's use of the word we during argument at the penalty
hearing. For the most part, the prosecutor used we as a rhetorical device which was not
improper. Once, however, the word we was used in a manner that suggested that the jury
was aligned with the prosecution in determining Snow's punishment.
7
Of course, this is not
the case.
____________________

5
There was no evidence on the results of the Photographic line-up shown Jody by defense investigators just
before trial.

6
Snow's counsel argued repeatedly in closing argument that without Jody Edwards' identification testimony
the State had no case against his client. In response, the prosecutor remarked, Well, Mr. Houston, if you really
believe that, why did you argue for forty minutes? Snow claims that this was an impermissible comment on
legitimate defense tactics. We disagree. Further, any error was harmless beyond a reasonable doubt due to the
overwhelming evidence of Snow's guilt. Talancon v. State, 97 Nev. 12, 621 P.2d 1111 (1981).

7
The prosecutor stated, We try to decide what punishment fits the crime and then we try to decide if what
we do here today, if the message we send
101 Nev. 439, 448 (1985) Snow v. State
The district court corrected any misimpression by remarking, I think the word we' might be
misunderstood. It is obvious that the jury would act and their decision would be on their own
and not part of the prosecution's or defense's. Any error was cured by the admonishment.
Stickney, supra.
[Headnote 13]
6. Finally, Snow argues that NRS 200.030(4)
8
is unconstitutionally vague because it
places the burden on the accused to prove that mitigating circumstances outweigh the
aggravating circumstances in his case in order to avoid the imposition of the death penalty.
This Court recently considered and rejected this argument in Ybarra v. State, 100 Nev. 167,
679 P.2d 797 (1984). Therefore, Snow's contention is without merit. We also reject his claim
that it is improper to allow the state to open and close argument at the penalty hearing.
[Headnotes 14, 15]
7. Under NRS 177.055(2)(d), this Court must review a death sentence and determine
whether it is disproportionate to the penalty imposed in similar cases in this state.
9
We
conclude, after analyzing the circumstances of Snow's crime, that the sentence of death is not
disproportionate to the penalty imposed in similar cases. See Nevius v. State, 101 Nev. 238,
699 P.2d 1053 (1985); Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985); Deutscher v.
State, 95 Nev. 669, 601 P.2d 407 (1979). We have also conducted the separate arbitrariness
review required by NRS 177.055(2)(c), and have determined that the death penalty in this
case was not imposed under passion, prejudice or any arbitrary factor.
____________________
out to the community and to other would-be contract killers . . .. At this point, defense counsel objected. On
appeal, Snow also claims that references to the deterrent effect of Snow's sentence on persons who might
contemplate contract killings in the future was error. We agree with the finding of the district court that the
comments were within the bounds of permissible argument.

8
circumstances.
(b) Otherwise, by imprisonment in the state prison for life with or without possibility of parole. If the
penalty is fixed at life imprisonment with possibility of parole, eligibility for parole begins when a
minimum of 10 years has been served.

9
Hannifin, 86 Nev. 252, 468 P.2d 350 (1970). Therefore, we must conduct a proportionality review of appellant's
sentence.
101 Nev. 439, 449 (1985) Snow v. State
case was not imposed under passion, prejudice or any arbitrary factor.
CONCLUSION
We hold that all the errors raised by appellant and enumerated on appeal are without merit.
We conclude that the death penalty in this case is not disproportionate. Accordingly, we
affirm the judgment of conviction and the sentence of death.
____________
101 Nev. 449, 449 (1985) Butler v. Bogdanovich
DOUGLAS J. BUTLER and ROSE MARIE BUTLER, Appellants, v. MICHAEL J.
BOGDANOVICH, RUSKA BOGDANOVICH, THANE McCALL dba McCALL REALTY,
PHIL SULLIVAN REALTY, INC., PHIL SULLIVAN, Individually, COUNTY OF
DOUGLAS, ROBERT E. FORD, JEANNE A. ZEMAREL, Respondents.
No. 15874
August 28, 1985 705 P.2d 662
Appeal from a summary judgment in favor of respondent; Ninth Judicial District Court,
Douglas County; Howard D. McKibben, Judge.
Purchasers of family residential dwelling brought action for damages against county and
others, alleging that county had negligently approved construction of dwelling. The district
court granted summary judgment for county, and purchasers appealed. The Supreme Court
held that genuine factual issue whether county had knowledge that a hazardous condition
existed at time when its inspector inspected the construction precluded summary judgment
for county.
Milos Terzich, Gardnerville, for Appellants.
Brent T. Kolvet, District Attorney, Gardnerville; Barker, Gillock & Perry and Charles
Spann, Reno, for Respondent County of Douglas.
1. Counties.
If county had knowledge of defects in residential dwelling through inspector who inspected premises at
various times during construction, county owed a duty to take action as a result of the discovery of the
deficiencies.
Immunity will not bar actions based on a public entity's failure to act reasonably after learning of a
hazard. NRS 41.033.
3. Judgment.
Trial court's reviewing record for issues of material fact upon motion for summary judgment should
construe pleadings and documentary evidence in a posture most favorable to party against whom the
motion for summary judgment is directed. NRCP 56(a).
4. Judgment
Entry of summary judgment is proper only when no issues of fact exist and moving party is entitled to
such an expedited judgment as a matter of law. NRCP 56(a).
5. Judgment.
Burden of proving absence of triable facts allowing entry of summary judgment is upon party moving for
summary judgment. NRCP 56(a).
6. Judgment.
Whether county had knowledge that a hazardous condition existed at time when county inspector
inspected construction of family residential dwelling was a genuine issue of fact precluding summary
judgment for county in action by subsequent purchasers of dwelling against county for negligently
approving construction of dwelling when it did not meet building code standards.
OPINION
Per Curiam:
Michael and Ruska Bogdanovich constructed a single family residential dwelling in the
County of Douglas, Nevada. Respondent County of Douglas (the County) sent an inspector to
inspect the premises at various times during construction, and finally signed off on the
construction. Several years later, appellants Douglas J. Butler and Rose Marie Butler
purchased the house and discovered defects in the construction. Appellants brought this
action for damages against the County and others, alleging that the County negligently
approved of the construction when it did not meet building code standards. The district court
granted summary judgment in favor of the County on the ground the County was immune
from suit under NRS 41.033.
1
The court reasoned that the County did not owe a duty of care
to appellants because there was no evidence that the County had actual knowledge of the
defects.
____________________

1
No action may be brought under NRS 41.031 or against an officer or employee of the state or any of its
agencies or political subdivisions which is based upon:
1. Failure to inspect any building, structure or vehicle, or to inspect the construction of any street,
public highway or other public work to determine any hazards, deficiencies or other matters, whether or
not there is a duty to inspect;
2. Failure to discover such hazard, deficiency or other matter, whether or not an inspection is made.
because there was no evidence that the County had actual knowledge of the defects.
We agree with appellants' assertion that there was an issue of fact of whether the County
had knowledge of the building's deficiencies. In opposition to the motion for summary
judgment, appellants presented the deposition and affidavit of the building inspector and
carpenter who visited the premises at appellants' request. The inspector and carpenter
indicated that twenty-five conditions existed in 1982 which were violations under an early
Uniform Building Code. They also indicated that the defects would have been visible in the
1976 inspection. A trier of fact could conclude that the defects in 1982 existed at the time of
the original inspection, and the County had knowledge of the defects.
[Headnotes 1, 2]
If the County had knowledge of the defects, the County owed a duty to take action as a
result of the discovery of the deficiencies. Immunity will not bar actions based on the public
entity's failure to act reasonably after learning of a hazard. See Brown v. Syson, 663 P.2d 251
(Ariz. 1980); Lorshbough v. Township of Buzzle, 258 N.W.2d 96 (Minn. 1977); Sexstone v.
City of Rochester, 301 N.Y.S.2d 887 (1969).
[Headnotes 3-5]
In the trial court's review of the record for issues of material fact, pleadings and
documentary evidence should be construed in a posture which is most favorable to the party
against whom the motion for summary judgment is directed. NRCP 56(a); Mullis v. Nevada
National Bank, 98 Nev. 510, 654 P.2d 533 (1982). An entry of summary judgment is proper
only when there are no issues of fact and the moving party is entitled to such an expedited
judgment as a matter of law. The burden of proving the absence of triable facts is upon the
moving party.
[Headnote 6]
The record establishes a genuine issue of fact as to whether the County had knowledge that
a hazardous condition existed at the time of the inspection of the construction. Summary
judgment thus was improper. Accordingly, the order of the district court is reversed and the
case remanded for further proceedings in accordance with this opinion.
____________
101 Nev. 452, 452 (1985) Wilson v. State
EDWARD THOMAS WILSON and JOHN S. OLAUSEN, Appellants, v. THE STATE
No. 12346
JOHN STEVEN OLAUSEN and EDWARD THOMAS WILSON, Appellants, v. THE
No. 13267
August 28, 1985 705 P.2d 151
Rehearing of appeals from judgments of conviction, following guilty pleas to murder,
robbery with the use of a deadly weapon and kidnapping with the use of a deadly weapon;
imposition of the death penalty by a three judge panel (No. 12346); and denial of motions to
withdraw guilty pleas (No. 13267). Second Judicial District Court, Washoe County; Peter I.
Breen, Michael E. Fondi and John F. Mendoza, Judges.
Defendants pled guilty to robbery with use of deadly weapon, kidnapping with use of
deadly weapon, and first degree murder of an undercover narcotics officer. The district court
sentenced defendants to death, and defendants appealed. The Supreme Court affirmed their
convictions, 664 P.2d 328, and defendants and State both petitioned Supreme Court for
rehearing to conduct a proportionality review of the death sentences and to determine whether
death sentences were imposed under the influence of passion, prejudice, or any arbitrary
factor. The Supreme Court granted rehearing limited to those purposes, and held that: (1)
death sentences were not disproportionate to the penalty imposed in similar cases, and (2)
death sentences were not imposed under the influence of passion, prejudice or other arbitrary
factors.
Death sentences affirmed.
David G. Parraguirre, Public Defender, and N. Patrick Flanagan, Special Counsel, Reno,
for Appellant Olausen.
Fred Hill Atcheson, Reno, for Appellant Wilson.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Edward
B. Horn, Deputy District Attorney, Reno, for Respondent.
1. Homicide.
Murder resulting in death penalties was similar in brutality and violence to other cases in which death
penalty had been imposed, and death penalties thus passed proportionality review required by NRS
177.055, subd. 2(d); similarity of the murder to a prior case in which only life imprisonment was
imposed did not indicate that death penalty had been wantonly or freakishly
imposed, given the brutality and high degree of premeditation evidenced in the
murder.
only life imprisonment was imposed did not indicate that death penalty had been wantonly or freakishly
imposed, given the brutality and high degree of premeditation evidenced in the murder.
2. Criminal Law.
Some flexibility must be incorporated into any scheme of proportionality review of death penalties. NRS
177.055, subd. 2(d).
3. Criminal Law.
In proportionality review of death penalties, imposition by juries of a lesser penalty than death in some
cases factually similar to the one under review is significant, but is not absolutely binding on the reviewing
court; unique aspects of the case under review may cause it to withstand proportionality review, even in the
face of points of similarity with life imprisonment cases. NRS 177.055, subd. 2(d).
4. Criminal Law.
Court conducting a proportionality review of a death penalty has no duty to determine that less than a
death sentence was never imposed in cases with some characteristics similar to the one under review. NRS
177.055, subd. 2(d).
5. Homicide.
Death penalties imposed on defendants for premeditated and brutal murder of an undercover agent were
not imposed under influence of passion, prejudice or any arbitrary factor. NRS 177.055, subd. 2(c).
OPINION
Per Curiam:
Appellants Edward Thomas Wilson and John Steven Olausen pleaded guilty to the first
degree murder of Reno undercover narcotics officer James Hoff and were sentenced to death
by a three judge panel. The murder convictions, as well as convictions of related felonies
(kidnapping and robbery), were affirmed by this court in Wilson v. State, 99 Nev. 362, 664
P.2d 328 (1983). Respondent and appellants both petitioned this court for rehearing, noting
we failed to conduct an express proportionality review of the death sentences as required by
NRS 177.055(2)(d).
1
The petitions also requested rehearing on whether the death sentences
were imposed under the influence of passion, prejudice or any arbitrary factor. NRS
177.055(2)(c). On August 24, 1983 we issued an order granting rehearing for the limited
purpose of conducting a proportionality and an arbitrariness review of the death sentences.
____________________

1
Hannifin, 86 Nev. 252, 468 P.2d 350 (1970). In Goldsworthy we held that an act amending parole eligibility
could not be applied to the detriment of a defendant whose crime was committed before the amendment took
effect. Id. at 256-57. Because Hoff was murdered well before June 6, 1985, we must conduct a proportionality
review of appellants' sentences.
death sentences. We have conducted a proportionality review of the death sentences in this
case. Based on that review, we conclude that the death sentences are not disproportionate to
the penalty imposed in similar cases. We have also concluded that the sentences were not
imposed under the influence of passion, prejudice or other arbitrary factor. Accordingly, we
affirm the sentences of death.
Appellants, along with two other young men,
2
carried out an elaborate, preplanned plot to
kill a drug dealer for $16,000.00. The drug dealer was actually Reno police officer James
Hoff, who was conducting an undercover investigation. Wilson, the apparent ringleader of the
group, brought Hoff to the scene of his death where the other three were lying in wait. Hoff
was stabbed a total of nine times. There was evidence that Hoff begged for his life after the
first wounds were inflicted. A medical expert testified that Hoff might have lived as long as
twenty minutes after the attack before dying of massive bleeding.
Hoff's body was placed in the back of his Datsun 280Z and taken to a remote area in
Verdi, where he was buried in a shallow grave. His fellow officers located the body the next
day after a massive search effort.
[Headnote 1]
Comparing the facts of this murder with other capital cases in Nevada, we conclude that
Hoff's murder evidences the brutality and violence present in other cases in which the death
penalty was imposed. See Farmer v. State, 101 Nev. 419, 705 P.2d 149 (1985); Nevius v.
State, 101 Nev. 238, 699 P.2d 1053 (1985); Petrocelli v. State, 101 Nev. 46, 692 P.2d 503
(1985). The trial judge described the killing as one of the most brutal and merciless murders
[Reno] has known.
We are aware that the facts of this case do bear some similarity to the facts of a case in
which only life imprisonment was imposed. See Crew v. State, 100 Nev. 38, 675 P.2d 986
(1984) (life sentences imposed for first degree murder of two men killed during a drug deal).
Nevertheless, we are persuaded that the death penalty has not been wantonly' or freakishly'
imposed. Jurek v. Texas, 428 U.S. 262, 276 (1975), given the high degree of premeditation
in this case. Appellants participated in a preconceived and vicious murder by stabbing,
motivated by intent to rob.
____________________

2
Fred Stites and David Lani also pleaded guilty to Hoff's murder. They were sentenced to life in prison
without possibility of parole by the same three judge panel which sentenced appellants to death. The panel
concluded that Stites and Lani were less culpable than Wilson and Olausen because they were under Wilson's
domination and because they showed remorse immediately after the murder. The record indicates that Lani fled
the scene after stabbing Hoff once in the back. Stites reportedly refused to slit Hoff's throat after Olausen
ordered him to do so, fleeing the scene after Lani. Stites also refused to participate in the hasty burial of Hoff's
body.
intent to rob. It was committed by four men in concert, one of whom, appellant Wilson, had a
prior arrest record for a violent felony.
[Headnotes 2-4]
We particularly note that some flexibility must be incorporated into any scheme of
proportionality review. The fact that juries have imposed a lesser penalty than death in some
cases factually similar to the one under review is significant, but is not absolutely binding on
the reviewing court. The unique aspects of the case under review may cause it to withstand
proportionality review even in the face of points of similarity with life imprisonment cases.
See Moore v. State, 213 S.E.2d 829 (Ga. 1975), cert. denied, 428 U.S. 910 (1976). The
Moore court specifically noted that it was not the duty of a reviewing court to determine that
less than a death sentence was never imposed in cases with some characteristics similar to the
one under review. Id. at 832. From our comparative review, and taking into account the
specific facts and circumstances of this case, we conclude that the death penalty is not
disproportionate as to either appellant.
[Headnote 5]
We further conclude that nothing in the record of the proceedings below indicates that the
death sentences were imposed under the influence of passion, prejudice or any arbitrary
factor. Accordingly, the death sentences are affirmed.
3

____________________

3
Appellant Wilson's attorney requested permission during oral argument to supplement the record with
additional materials relative to Wilson's character. The motion is denied. We may not consider matters not
properly appearing in the record on appeal. Lewis v. State, 93 Nev. 638, 572 P.2d 211 (1977); Johnstone v.
State, 93 Nev. 427, 566 P.2d 1130 (1977).
____________
101 Nev. 455, 455 (1985) Moreland v. State
LOYD MORELAND, Appellant, v. THE
No. 15669
August 28, 1985 705 P.2d 160
Appeal from a judgment of conviction of larceny from the person, Eighth Judicial District
Court, Clark County; Stephen L. Huffaker, Judge.
Defendant was convicted in the district court of larceny from the person, and he appealed.
The Supreme Court held that defendant was entrapped into committing larceny from the
person.
Reversed.
101 Nev. 455, 456 (1985) Moreland v. State
Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public Defender,
Clark County, for Appellant.
Criminal Law.
Defendant was entrapped into committing larceny from the person where, as part of decoy operation, in
downtown Las Vegas, police officer disguised himself as a vagrant, leaned against a palm tree pretending
to be intoxicated or asleep, and defendant, while walking past, removed three $100 bills which protruded
from officer's pocket.
OPINION
Per Curiam:
Following a jury trial, appellant was convicted of one count of larceny from the person. On
appeal, he contends that his conviction cannot stand because he was entrapped into
committing the larceny. We agree.
The undisputed evidence presented at appellant's trial established that appellant was
arrested by four police officers who were conducting a decoy operation in downtown Las
Vegas. On the evening of appellant's arrest, one of the police officers disguised himself as a
vagrant. The officer, sitting on the ground and leaning against a palm tree, pretended to be
intoxicated or asleep. A Western Union envelope containing three one-dollar bills and one
simulated $100 dollar bill protruded from the decoy officer's pocket. As appellant was
walking by the officer, it appears he looked down and saw the envelope. He then stopped and
took the bait, but did not otherwise molest the decoy in any way. Appellant was arrested
immediately and subsequently charged with larceny from the person.
In Oliver v. State, 101 Nev. 308, 703 P.2d 869 (1985), this court reversed the conviction of
a defendant who was the victim of a virtually identical decoy operation. In Oliver, we noted
that the state may not employ extraordinary temptations or inducements to seduce a person to
commit a crime who is not otherwise disposed to do so.
Accordingly, we must conclude that appellant was impermissibly entrapped into
committing the larceny, and we therefore reverse appellant's conviction. See Oliver v. State,
supra.
____________
101 Nev. 457, 457 (1985) Rogers v. State
MARK JAMES ROGERS, aka MARK JOSEPH HEYDUK, aka TEEPEE FOX, Appellant,
v. THE STATE OF NEVADA, Respondent.
No. 14020
September 3, 1985 705 P.2d 664
This is an appeal from judgment upon a jury verdict convicting defendant of three counts
of first degree murder, one count each of attempted murder and grand larceny and imposition
of the death penalty. Sixth Judicial District Court, Pershing County: Robert G. Legakes,
Judge.
Defendant was convicted in the district court of murdering three victims, for which he
received death sentence, and of attempted murder and grand larceny. Defendant appealed.
The Supreme Court held that: (1) trial court did not abuse its discretion in denying
defendant's motion for change of venue and in denying sequestration of jurors; (2) State's
failure to preserve jar with defendant's fingerprint on it did not deprive defendant of due
process; (3) evidence of prior felony convictions of defendant was admissible in penalty
phase; (4) prior aggravated assault convictions were felonies involving violence which would
support finding of that aggravated circumstance; (5) evidence supported finding of
aggravating circumstance that murders involved torture, depravity of mind, or mutilation of
victims, justifying death penalty; and (6) death sentence was not excessive nor
disproportionate to penalty imposed in similar cases in the State.
Affirmed.
[Rehearing denied January 7, 1986]
Thomas E. Perkins, State Public Defender, and J. Thomas Susich, Special Deputy State
Public Defender, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City, and Richard A. Wagner, District Attorney,
Lovelock, for Respondent.
1. Criminal Law.
District court did not abuse its discretion in denying defendant's motion for change of venue, based on
conversation in which editor/publisher of local newspaper acknowledged her prejudice against defendant,
where defendant failed to demonstrate that any pretrial publicity corrupted his trial. NRS 174.455.
2. Criminal Law.
Trial court did not abuse its discretion in denying sequestration of jury in criminal prosecution, where
district court's attention was not drawn to any newspapers or other forms of communication to which jurors
might have been exposed to defendant's prejudice, jurors were examined on voir dire regarding
their exposure to news accounts of the crime, and trial court admonished jury before
each separation and in final jury instructions that they were not to be influenced by
public opinion and that they were to consider only evidence produced at trial; there
was no demonstration that jurors were exposed to any form of communication that
would have adversely impacted their commitments to fairly and impartially weigh
evidence adduced at trial.
examined on voir dire regarding their exposure to news accounts of the crime, and trial court admonished
jury before each separation and in final jury instructions that they were not to be influenced by public
opinion and that they were to consider only evidence produced at trial; there was no demonstration that
jurors were exposed to any form of communication that would have adversely impacted their commitments
to fairly and impartially weigh evidence adduced at trial. U.S.C.A.Const. Amends. 5, 6, 14.
3. Criminal Law.
Where defendant seeks to have his conviction reversed for loss of evidence, he must show either bad faith
or connivance on part of government or prejudice by loss of the evidence.
4. Criminal Law.
Burden of defendant is criminal prosecution, who seeks to have his conviction reversed for loss of
evidence, requires a showing that it could be reasonably anticipated that evidence sought would be
exculpatory and material to defense.
State's failure to preserve jar found in home of murder victims upon which defendant's fingerprint was
found did not deprive defendant of due process, where record did not reveal any bad faith on State's part in
failing to preserve the evidence, State investigator testified that investigators preserved only what they
believed were significant samples, and defendant failed to carry the burden of showing how he had been
prejudiced by loss of jar in that print matched that of defendant and he had not demonstrated now jar would
have been exculpatory since his fingerprints were lifted from numerous other items in the home.
6. Criminal Law.
Insanity is an affirmative defense which the accused, who is presumed sane, must prove by
preponderance of the evidence.
7. Criminal Law.
Death penalty did not violate Eighth Amendment, despite defendant's contention that penalty was applied
in a discriminatory and infrequent manner because most persons sentenced to death were indigent and
represented by public defender; there was no basis for concluding defendants receiving death penalty had
been inadequately or apathetically represented by counsel in the office of the public defender and the
Supreme Court was unaware of any constitutional infirmity attributable to indigency. U.S.C.A.Const.
Amend. 8.
8. Criminal Law.
Contention of defendant that death penalty violated the Ninth Amendment of the Federal Constitution and
State Constitutional Art. 1, 1, which provide that all men are by nature free and equal and have certain
inalienable rights, would not be reviewed, where defendant had not cited any authority in support of the
argument. U.S.C.A.Const. Amend. 9; Const. Art. 1, 1.
9. Jury.
District court did not unreasonably restrict voir dire examination of prospective jurors in criminal
prosecution, where it permitted extensive questioning regarding prior jury service, including how many
times jurors had previously served, where they had served, how long ago they had served, whether it was a
civil or criminal matter, and whether jury had arrived at a verdict, even though court did refuse to allow
defendant to ask each juror what his or her individual verdict had been in previous jury service. NRS
175.031.
10. Criminal Law.
District court did not abuse its discretion in denying continuance, which was requested by defendant in
order to obtain expert to analyze results of blood tests conducted by prosecution, where court denied
motion on ground that although blood tests were unavailable to defense until shortly before trial, there was
ample time before trial actually commenced for defense to review evidence to prepare accordingly, record
reflected that defendant had knowledge of blood samples as early as several weeks before trial, and
defendant had not demonstrated any prejudice that might have resulted.
11. Criminal Law.
Offenses of grand larceny of truck and attempted murder constituted single or continuing course of
conduct that validated joinder of such offenses with prosecution for three murders, in that evidence of
grand larceny and attempted murder was admissible as evidence of flight from scene of the homicides, even
though there was no express finding that informations were suitable for joinder.
12. Criminal Law.
Defendant was precluded from raising issue of whether prosecutions for grand larceny and attempted
murder should have been joined with prosecution for three murders, where he did not object to
consolidation of cases below.
13. Homicide.
Evidence of defendant's prior felony convictions involving violence fell within hearsay exception of prior
convictions [NRS 51.295] and were thus admissible in penalty phase of murder prosecution, regardless
of statute permitting admission of hearsay and inadmissible evidence at penalty phase [NRS 175.552],
which was allegedly unconstitutional as violative of due process.
14. Homicide.
Defendant had adequate time to prepare challenge to aggravating circumstance of prior convictions
involving violence which State used to seek death penalty, where defendant had over three months to
develop mitigating circumstances from date of filing of notice to seek death penalty to date of penalty
hearing, and defense counsel stated on the record that he had actual knowledge of the additional
aggravating circumstance at least approximately two and one-half weeks prior to commencement of penalty
hearing, even though defendant did not receive formal notice of the aggravating circumstance of prior
felony convictions involving violence until approximately one week prior to commencement of the penalty
phase.
15. Criminal Law.
Defendant had not shown prejudice resulting from a lack of funds to challenge aggravating circumstances
and present evidence of mitigating circumstances for penalty hearing, where court had allocated $100 for
telephone calls and indicated that, if mitigating evidence was discovered, it would reconsider allocating
money for travel, and defense counsel stated prior to penalty hearing that he had not contacted investigator
because he did not know who to ask investigator to call.
16. Homicide.
Statute defining aggravating circumstance for imposition of penalty, NRS 200.033, subd. 8, that
murder involved torture, depravity of mind, or mutilation of victim, provided adequate guidance for jury
where district court defined terms in statute for sentencing panel with definitions approved in a prior
judicial holding. U.S.C.A.Const. Amend. 8.
17. Homicide.
Evidence that victims were tortured and murders were committed with depravity of mind, in that three
murder victims had been repeatedly shot and stabbed, one victim's gunshot wound revealed that it was
postmortem wound, or had been inflicted shortly before his death, another victim was first stabbed in the
back and then shot in chest at close range when she was near death, and third victim was shot once in the
back in an execution-type killing, in which she was kneeling and gun was pressed directly against her body,
supported finding of aggravating circumstance justifying death penalty. NRS 200.033, subd. 8.
18. Courts; Criminal Law.
Giving instruction on possibility of executive clemency did not constitute reversible error, where trial
antedated judicial decision which provided instruction that was to be exclusively used when counsel
requested jury be instructed on subject of executive clemency and that holding was to operate
prospectively, even though defendant contended instruction diverted jury's attention from considerations
required by the Eighth Amendment and caused jury to speculate about possibility of his release.
19. Homicide.
District Court in murder prosecution did not err by failing to provide a form or method by which jury
could set forth specific mitigating circumstances which it found, as NRS 175.554, subd. 3, provides that
jury need only say that there are no mitigating circumstances which outweigh designated aggravating
circumstances and there is no requirement that jury be provided a form.
20. Criminal Law.
Proportionality review required of the Supreme Court in capital cases dictated that the court compare all
capital cases, as well as appealed murder cases in which death penalty was sought but not imposed, and set
aside those death sentences which are comparatively disproportionate to the offense, background, and
characteristics of the offender. NRS 177.055, subd. 2(d).
21. Homicide.
Prior aggravated assault convictions of defendant were felonies involving violence which would support
finding of that aggravating circumstance, for purposes of justifying death penalty for defendant convicted
of murder. NRS. 200.033, subd. 2.
22. Homicide.
Death sentence was not excessive or disproportionate to penalty imposed in similar cases, for defendant
convicted of three murders, who had prior aggravated assault convictions and committed murders involving
torture, depravity of mind, or mutilation of victims. NRS 200.033, subds. 2, 8; U.S.C.A.Const. Amend.
8.
OPINION
Per Curiam:
Appellant, Mark James Rogers, was convicted by a jury of murdering three victims, for
which he received a sentence of death. Additionally, he was also convicted of attempted
murder and grand larceny. On appeal, Rogers raises numerous issues, none of which warrants
reversal of the convictions or sentences imposed. We accordingly affirm.
The Facts
On December 3, 1980, Frank and Linda Strode returned from a Thanksgiving trip to their
home in an isolated part of Pershing County near Majuba Mountain, where they resided with
Frank's parents, Emery and Mary Strode, and Frank's sister, Meriam Strode Treadwell. When
they entered the parents' trailer, they found the dead bodies of Emery, Mary and Meriam
under a blanket in a bedroom. Emery had been shot three times and stabbed twice with a
knife which was left in his chest. A pocket watch discovered in Emery's shirt pocket had been
struck by one of the bullets; the hour hand of the watch was stopped at one o'clock. Mary had
been stabbed in the back and shot in the chest. Meriam, whose wrists were bound with an
electric cord, died from a single gunshot wound in her back. Emery and Meriam kept daily
diaries. The last entry in both diaries was recorded on the morning of December 2, 1980.
On December 1, 1980, between 4:30 and 5 p.m., Robert Schott gave defendant a ride from
Winnemucca to Imlay. As soon as Rogers climbed into Schott's truck, he looked nervously in
both the back of the truck and the rear view mirror. Defendant introduced himself as John and
claimed that he was a musician going to Reno to look for a job. At one point during the drive,
defendant blurted out: You may not believe it but I am a good American. You may not
believe it but I'm on your side. I would fight for my country.
On December 2, 1980, between approximately 12:15 and 12:45 p.m., David Hartshorn, a
geologist working at the Majuba Hill Mine, observed Rogers standing alongside a road near
Majuba Canyon and offered him a ride. During the ride, Hartshorn gave defendant a can of
Seven-Up to drink. Defendant stated that [s]omebody is shooting rockets . . . and one of
these days it will hit my pyramid and blow me up. Rogers alighted at the Strode residence
with the Seven-Up can in hand.
Between 12:30 and 2 p.m. that same day, Ray Horn, a mechanic at a nearby mine, was
driving on a county road near Majuba Mountain. As he passed a dark metallic blue truck, a
slender young man driving the truck shot at Horn several times. Between 3:30 and 4 p.m.,
Earl L. Smith, a highway maintenance worker, saw Rogers standing on a road between Denio
and Winnemucca and provided him a ride because defendant had run out of gasoline. Rogers
was later observed traveling at an extremely high rate of speed in a blue truck, which was
identified by its license number as the Strodes' truck.
On December 5, 1980, Rogers was refused entry into Canada. In conversing with a
Canadian police officer, Rogers indicated that he was the King of North America. On January
4, 1981, defendant was arrested in Florida when he was seen riding on the bumper of a car,
holding on to a luggage rack.
bumper of a car, holding on to a luggage rack. After he was arrested, Rogers told police that
God knew him and that we were all a part of mother nature. During fingerprinting, defendant
refused to speak and wrote on a piece of paper that he belonged to the government. Later at
the jail, defendant claimed that he had killed the Strode family in self-defense.
Rogers' fingerprints were lifted from various items in the Strode residence, including a
Seven-Up can and a glass jar found in the bedroom under the blanket with the victims' bodies.
At trial, the defense presented the testimony of several expert witnesses which indicated
defendant was a paranoid schizophrenic at the time of evaluation and that defendant's
behavior at the time of the commission of the crimes was consistent with psychotic paranoid
delusions, schizophrenia and psychosis and that Rogers could not tell right from wrong or the
nature and quality of his acts. One psychologist believed that the defendant, who was trained
in acting, was faking his symptoms. After finding the defendant guilty of the crimes charged,
the jury imposed the death penalty for the three murder convictions, and prison terms for the
attempted murder and grand larceny. Defendant now appeals the judgment of conviction and
the imposition of the death penalty.
The Guilt Phase
[Headnote 1]
Defendant contends that the court erred in denying his motion for change of venue because
the editor/publisher of a local newspaper, in a conversation with defense counsel,
acknowledged her prejudice against defendant. Defendant reasons that if the newspaper is
biased, then the community must be biased. Counsel's affidavit in support of the motion to
change venue was unsupported by any evidence which might have demonstrated the extent or
inflammatory nature of any pretrial publicity, or whether there was any prejudicial effect on
the prospective jurors. Under these circumstances, where defendant failed to demonstrate that
any pretrial publicity corrupted the trial, the district court did not abuse its discretion in
denying defendant's motion for change of venue. NRS 174.455; Kaplan v. State, 96 Nev. 798,
618 P.2d 354 (1980).
[Headnote 2]
Relying on Sollars v. State, 73 Nev. 248, 316 P.2d 917, (1957), Rogers also argues that the
district court erred by denying his motion to sequester the jurors. In Sollars, we reversed a
first degree murder conviction because the trial court permitted separation of the jury where
there was a daily barrage of inflammatory headlines in two daily Las Vegas newspapers. We
determined that the court's admonition to the jury not to read the newspapers was
insufficient because it could be inferred that the jury was exposed to prejudicial
communications merely by glancing at any headline.
the court's admonition to the jury not to read the newspapers was insufficient because it could
be inferred that the jury was exposed to prejudicial communications merely by glancing at
any headline.
It is true that a trial court must exercise care and sensitivity in granting separation over a
defendant's objection. We nevertheless conclude that Sollars is inapposite to the instant case.
The district court's attention was not drawn to any newspapers or other forms of
communication to which the jurors may have been exposed to the defendant's prejudice.
Moreover, the grounds for defendant's motion were merely that [n]o doubt there will be a
great deal of publicity at the time of the present trial, and it will be most difficult for the
twelve selected jurors not to be influenced by the negative feelings present in the
community. The jurors were examined on voir dire regarding their exposure to news
accounts of the crime. The trial court admonished the jury before each separation and in the
final jury instructions that they were not to be influenced by public opinion and that they were
to consider only the evidence produced at trial. As this Court stated in Crew v. State, 100
Nev. 38, 675 P.2d 986 (1984), the decision of the trial court will be overturned only if
appellant demonstrates that either the nature of the publicity or the jury's actual exposure to it
created a probability of prejudice. Here, there was simply no demonstration that the jurors
were exposed to any form of communication that would have adversely impacted their
commitments to fairly and impartially weigh the evidence adduced at trial. The trial court did
not abuse its discretion in denying sequestration. NRS 175.391.
Defendant insists that the State's failure to preserve the jar with his fingerprint on it that
was found under the blanket with the victims' bodies deprived him of due process because an
examination of the jar may have led to evidence refuting prosecution testimony. We disagree.
[Headnotes 3, 4]
Where a defendant seeks to have his conviction reversed for loss of evidence he must
show either bad faith or connivance on the part of the government or prejudice by the loss of
the evidence. Wood v. State, 97 Nev. 363, 632 P.2d 339 (1981); Crockett v. State, 95 Nev.
859, 603 P.2d 1078 (1979). This burden requires a showing that it could be reasonably
anticipated that the evidence sought would be exculpatory and material to appellant's
defense. Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979).
[Headnote 5]
The record does not reveal any bad faith on the part of the State in failing to preserve the
evidence. A State investigator testified that investigators preserved only what they
believed were significant samples.
that investigators preserved only what they believed were significant samples. Additionally,
defendant has failed to carry the burden of showing how he has been prejudiced by the loss of
the jar. The print lifted from the jar matched that of defendant. Defense counsel's mere
assertion that his examination of the evidence may not have disclosed any of defendant's
prints is not sufficient to show prejudice. Boggs, 95 Nev. at 913, 604 P.2d at 108 (a hoped for
conclusion from examination of the destroyed evidence is not sufficient). Assuming,
arguendo, that defendant's print was not on the jar, he has not demonstrated how the jar
would have been exculpatory since his fingerprints were lifted from numerous other items
found in the Strode residence which were preserved by the State. We therefore conclude that
the State's failure to preserve the jar did not deprive Rogers of due process.
[Headnote 6]
We are invited by the defendant to disavow the M'Naughten rule as the test for criminal
responsibility and supplant it with the standard devised by the American Law Institute.
Defendant's invitation is declined. We have recently rejected such a request and reaffirmed
Nevada's use of the M'Naughten test for criminal insanity. Ybarra v. State, 100 Nev. 167, 679
P.2d 797 (1984); Poole v. State, 97 Nev. 175, 625 P.2d 1163 (1981); Clark v. State, 95 Nev.
24, 588 P.2d 1027 (1979). Defendant also contends that requiring him to bear the burden of
proving insanity deprived him of due process because sanity is an element of the charged
crime. In Ybarra, we also reaffirmed our position that sanity is not an element of the offense
which the prosecutor must plead and prove. Insanity is an affirmative defense which the
accused, who is presumed sane, must prove by a preponderance of the evidence. See also
Clark v. State, 95 Nev. 24, 28, 588 P.2d 1027, 1030 (1979); In re Winship, 397 U.S. 358
(1970); Mullaney v. Wilbur, 421 U.S. 684 (1975); Patterson v. New York, 432 U.S. 197,
205-207 (1977).
[Headnotes 7, 8]
Defendant next contends that the death penalty violates the Eighth Amendment because it
is applied in a discriminatory and infrequent manner in that most persons sentenced to death
are indigent and represented by a public defender. We are unaware of any constitutional
infirmity attributable to indigency and have observed no basis for concluding that defendants
receiving the ultimate sentence in Nevada have been inadequately or apathetically represented
by counsel in the office of the public defender. We have recently approved Nevada's death
penalty statutes as constitutional in the face of an Eighth Amendment challenge. Ybarra v.
State, 100 Nev. 167, 679 P.2d 797 (1984); Deutscher v. State, 95 Nev. 669
State, 95 Nev. 669, 601 P.2d 407 (1979); Bishop v. State, 95 Nev. 511, 597 P.2d 273 (1979).
Defendant also opines that the death penalty violates the Ninth Amendment of the U.S.
Constitution and the Nevada Constitution, article 1, section 1, which provide: All men are by
nature free and equal and have certain inalienable rights. Defendant has not cited any
authority in support of this argument and we therefore decline to review this contention.
Bennett v. Fidelity & Deposit Co., 98 Nev. 449, 652 P.2d 1178 (1982).
[Headnote 9]
Defendant asserts that by refusing to allow defense counsel to ask each juror what his or
her individual verdict was in previous jury service the district court unreasonably restricted
voir dire. Defendant has not shown that the court's restriction on questioning resulting in the
inability of the defense to determine the existence of prejudice on the part of any juror. NRS
175.031; Oliver v. State, 85 Nev. 418, 456 P.2d 431 (1969). The court allowed extensive
questioning regarding prior jury service, e.g., how many times the jurors had previously
served, where they served, how long ago they served, whether it was a civil or criminal
matter, and whether the jury had arrived at a verdict. Under these circumstances, the district
court did not unreasonably restrict the voir dire examination.
[Headnote 10]
Rogers also contends that the trial court abused its discretion in denying his request for
continuance, which was made in order to obtain an expert to analyze the results of blood tests
conducted by the prosecution. The court denied the motion on the ground that although the
blood tests were unavailable to the defense until shortly before trial, there was ample time
before the trial actually commenced for the defense to review the evidence and prepare
accordingly. Because the record reflects that defense counsel had knowledge of the blood
samples as early as several weeks before trial, and defendant had not demonstrated any
prejudice that might have resulted from the lack of further analysis of the blood samples, the
district court acted within its discretion in denying the continuance. McCabe v. State, 98 Nev.
604, 655 P.2d 536 (1982).
[Headnotes 11, 12]
Finally, we are advised by the defendant that the criminal informations were improperly
joined for trial because there was no express finding that the informations were suitable for
joinder. This contention is also meritless. The evidence of grand larceny of the truck and the
attempted murder of Ray Horn was admissible as evidence of flight from the scene of the
homicides. Thus, the offenses constituted a single or continuing course of conduct that
validated the joinder.
the offenses constituted a single or continuing course of conduct that validated the joinder.
There was no abuse of discretion. NRS 174.155; 174.165; Lovell v. State, 92 Nev. 128, 546
P.2d 1301 (1976). Moreover, defendant did not object to the consolidation of cases below and
therefore is precluded from raising the issue for the first time on appeal. McCullough v. State,
99 Nev. 72, 657 P.2d 1157 (1983).
The Penalty Phase
[Headnote 13]
Defendant initially contends that NRS 175.5521 violates due process because it permits
the admission of hearsay and inadmissible evidence at the penalty phase. NRS 175.552
specifically allows the admission, at the penalty hearing, of such evidence as it relates to the
character and record of the individual offender. Allen v. State, 99 Nev. 485, 665 P.2d 238
(1983); Woodson v. North Carolina, 428 U.S 280 (1976). The State presented credible
evidence during the penalty hearing on the circumstances of defendant's prior felony
convictions involving violence. NRS 200.033(2). The evidence of prior felony convictions
admitted against Rogers fell within the hearsay exception of prior convictions. NRS 51.295.
As such, it was admissible regardless of NRS 175.552.
[Headnote 14]
Defendant next asserts that he was denied due process because, pursuant to NRS 175.552,
2
one week's notice of the prosecution's intent to present evidence of the aggravating
circumstance of prior convictions involving violence was inadequate. From the date of the
filing of the notice to seek the death penalty to the date of the penalty hearing, defendant had
over three months to develop mitigating circumstances. Although he did not receive the
formal notice of the aggravating circumstance of prior felony convictions involving violence
until approximately one week prior to commencement of the penalty phase, defense counsel
stated on the record that he had actual knowledge of the addi-
____________________

1
NRS 175.552 provides that 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).

2
NRS 175.552 also provides:
The state may introduce evidence of additional aggravating circumstances as set forth in NRS
200.033, other than the aggravated nature of the offense itself, only if it has been disclosed to the tional
aggravating circumstance at least approximately defendant before the commencement of the
penalty hearing.
tional aggravating circumstance at least approximately two and one-half weeks prior to the
commencement of the penalty hearing. Thus, there was adequate time to prepare a challenge
to this aggravating circumstance, and this contention is without merit.
[Headnote 15]
Defendant also argues that the court denied him adequate funds to develop testimony
challenging the alleged aggravating circumstances and to present evidence of mitigating
circumstances. Although Rogers' request for funds to send an investigator to Ohio to check on
his background was denied, the court allocated $100 for telephone calls and indicated that, if
mitigating evidence was discovered, it would reconsider allocating money for travel. Prior to
the hearing, the court inquired of defense counsel what phone calls had been made and
defense counsel stated that he had not contacted the investigator because he did not know
who to ask the investigator to call. Under these circumstances, defendant has not shown
prejudice resulting from a lack of funds to prepare mitigating circumstances for the penalty
hearing.
[Headnote 16]
Rogers also claims that the aggravating circumstance set forth in NRS 200.033(8), i.e., that
the murder involved torture, depravity of mind or mutilation of the victim, is
unconstitutionally vague. He is wrong. We have recently determined that NRS 200.033(8)
provides adequate guidance to the jury when the district court defines for the sentencing panel
the terms torture, depravity of mind and mutilate, as that definitional language is plain
and intelligible. Deutscher, 95 Nev. at 669, 601 P.2d at 407. In the instant case, the district
court defined the terms for the sentencing panel with the definitions approved in Deutscher.
3
The statute is constitutional.
____________________

3
The court instructed the jury during the penalty hearing as follows:
The essential elements of murder by means of torture are (1) the act or acts which caused the death
must involve a high degree of probability of death, and (2) the defendant must commit such act or acts
with the intent to cause cruel pain and suffering for the purpose of revenge, persuasion or for any other
sadistic purpose.
The crime of murder by torture does not necessarily require any proof that the defendant intended to
kill the deceased nor does it necessarily require any proof that the deceased suffered pain.
The condition of mind described as depravity of mind is characterized by an inherent deficiency of
moral sense and rectitude. It consists of evil, corrupt and perverted intent which is devoid of regard for
human dignity and which is indifferent to human life. It is a state of mind outrageously, wantonly vile,
horrible or inhuman. . . .
[T]he term mutilate means to cut off or permanently destroy a limb or essential part of the body, or
to cut off or alter radically so as to make imperfect.
[Headnote 17]
In Godfrey v. Georgia, 446 U.S. 420 (1980), the United States Supreme Court held that the
application of a statute containing language similar to that found in NRS 200.033(8) was
unconstitutional where both the victims died instantaneously. Godfrey is distinguishable from
the instant case. In that case, the Court held there was insufficient evidence to prove that the
victims had been tortured or mutilated or that the murder had been committed with depravity
of mind. In the instant case, however, three victims were repeatedly shot and stabbed. One of
Emery's gunshot wounds revealed that it was a post-mortem wound, or had been inflicted
shortly before his death. Mary was first stabbed in the back and then shot in the chest at close
range when she was near death. Meriam Strode Treadwell was shot once in the back in an
execution-type killing, in which she was kneeling and the gun was pressed directly against
her body. Under these circumstances, the jury was justified in finding the aggravating
circumstance that the victims were tortured and the murders were committed with depravity
of mind.
[Headnote 18]
Defendant argues that the jury instruction on the possibility of executive clemency
diverted the jury's attention from the considerations required by the Eighth Amendment and
instead caused the jury to speculate about the possibility of his release.
4
While viewing the
court's instruction as troubling, it does not constitute reversible error since Rogers' trial
antedated our holding in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985). In Petrocelli,
this Court made it clear that Nevada juries who are instructed on the clemency provisions
peculiar to Nevada's constitutional and statutory law, are to be fairly informed. Accordingly,
we provided an instruction that is to be exclusively used when counsel requests that the jury
be instructed on that subject.
____________________

4
The court instructed the jury during the penalty hearing as follows:
You are instructed that the sentence of life imprisonment without the possibility of parole does not
exclude executive clemency.
If the punishment is fixed at life imprisonment with the possibility of parole, eligibility for parole
begins when a minimum of ten years has been served.
Executive clemency involves a decision by the State Board of Pardon Commissioners to commute or
reduce a defendant's sentence from life without possibility of parole to life with possibility of parole.
Executive clemency may also involve a decision by the State Board of Pardon Commissioners to
shorten the time a defendant is elibible [sic] for parole.
The State Board of Pardon Commissioners consists of the Governor, the Attorney General and the
five Justices of the Supreme Court of the State of Nevada.
The Board can change a sentence only by a majority vote and only if the Governor is in the majority
voting to change the sentence.
Since the Petrocelli ruling operated prospectively, the instruction provided in the instant case
was validated by the decision of California v. Ramos, 103 S.Ct. 3446 (1983).
[Headnote 19]
Defendant next claims that the district court erred by not providing a form or method by
which the jury could set forth the specific mitigating circumstances which it found. NRS
175.554(3) provides that the jury need only state that there are no mitigating circumstances
which outweigh the designated aggravating circumstances. Here, the jury stated that there was
no mitigating circumstance which outweighed the stated aggravating circumstances. There is
no requirement in the statute mandating that the jury be provided a form to specify the
mitigating circumstances which it found. The district court complied with the verdict
requirements set forth in NRS 175.554.
[Headnote 20]
Under the law applicable to this case, we are required to review Rogers' sentence of death
to determine whether it is disproportionate to the penalty imposed in similar cases in this
state, considering both the crime and the defendant. NRS 177.055(2)(d).
5
Proportionality
review dictates that we compare all capital cases, as well as appealed murder cases in which
the death penalty was sought but not imposed, and set aside those death sentences which are
comparatively disproportionate to the offense, background and characteristics of the offender.
Harvey v. State, 100 Nev. 340, 342, 682 P.2d 1384, 1385 (1984).
The crimes for which Rogers was convicted were brutal and heinous. The three victims
were extremely vulnerable; two were over seventy years of age and the third victim was
almost blind and otherwise disabled. Some the wounds were inflicted when the victims were
dead or near death. The State's theory of the case was that defendant was eating in the victim's
home and killed Mary, Emery and Meriam as they arrived, without any motive of
self-defense; the State also offered evidence to demonstrate Emery and defendant struggled
before Emery was killed.
Although defendant was twenty-three years of age at the time of the commission of the
offense, defendant had two prior convictions for aggravated assault. While some experts
concluded that defendant suffered from psychotic paranoid schizophrenia at the time of the
offense, another psychologist believed that defendant was faking his symptoms of mental
disorder.
____________________

5
NRS 177.055(2)(d) was amended on June 6, 1985, to eliminate the proportionality review requirement. II
Advance Sheets of Nevada, 1597. We express no opinion as to whether the retained language of the statute
continues to require such a review.
[Headnote 21]
The jury found as aggravating circumstances that the murders were committed by a person
who was previously convicted of a felony involving the use or threat of violence to the person
of another, NRS 200.033(2), and that the murders involved torture, depravity of mind or the
mutilation of the victims, NRS 200.033(8). The jury found no mitigating circumstances
sufficient to outweigh the aggravating circumstances. The prior aggravated assault
convictions were felonies involving violence which would support the finding of that
aggravating circumstance. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1982). The evidence of
physical abuse in the stabbing of Emery and Mary, the execution of Meriam, and the struggle
with Emery before he and the other victims were shot supports the finding that the murders
involved torture, depravity of mind or the mutilation of the victims. Cf. Godfrey v. Georgia,
446 U.S. at 420 (1980).
[Headnote 22]
Considering both the crimes and the defendant, we conclude that Roger's death sentence is
not excessive or disproportionate to the penalty imposed in similar cases in this State. See,
e.g., Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985); Nevius v. State, 101 Nev. 238,
699 P.2d 1053 (1985); Ybarra v. State, 100 Nev. 167, 679 P.2d 797 (1984); Deutscher v.
State, 95 Nev. 669, 601 P.2d 407 (1979); Bishop v. State, 95 Nev. 511, 597 P.2d 273 (1979).
Cf. Koza v. State, 100 Nev. 245, 681 P.2d 44 (1984) (life imprisonment); Briano v. State, 94
Nev. 422, 581 P.2d 5 (1978).
Our review of the record also reveals the sentence of death was not imposed under the
influence of passion, prejudice or any arbitrary factor. NRS 177.055(2)(c).
The distillate of our review of all of the issues raised by defendant is that no prejudicial
error occurred in defendant's trial. Accordingly, we affirm the convictions of first degree
murder, attempted murder and grand larceny and the sentences imposed, including the
sentence of death.
6

Springer, C. J., and Mowbray, Gunderson, and Steffen, JJ., and McGee, D. J.,
7
concur.
____________________

6
We have likewise reviewed defendant's supplemental brief filed after oral argument and have concluded that
the issues raised therein were either raised for the first time through the supplemental brief or were otherwise
covered adequately prior to the supplemental briefing. In either case, defendant's contentions are without merit.

7
The Governor designated The Honorable Charles McGee of the Second Judicial District Court to sit in the
place of The Honorable Cliff Young, who voluntarily disqualified himself. Nev. Const., art. 6, 4.
____________
101 Nev. 471, 471 (1985) Ivory Ranch v. Quinn River Ranch
IVORY RANCH, INC., a Nevada Corporation, Appellant and Cross-Respondent, v. QUINN
RIVER RANCH, INC., a Nevada Corporation; PRODUCER'S LIVESTOCK LOAN
COMPANY, a Utah Corporation; CHARLES WOODS, Individually and MARVIN
JACKSON, Individually, Respondents and Cross-Appellants.
No. 16033
September 5, 1985 705 P.2d 673
Appeal and cross-appeal from judgment in consolidated contract actions. Sixth Judicial
District Court, Humboldt County; Richard J. Legarza, Judge.
Breach of contract action was brought concerning contract to sell cattle. The district court
entered judgment which credited to buyer $88,560 as result of mutual mistake in valuation of
cattle, and seller appealed. The Supreme Court held that district court's reformation of
contract on ground of mutual mistake violated seller's right to procedural due process and fair
trial.
Reversed in part; affirmed in part.
Robison, Lyle, Belaustegui & Robb, and Creighton C. Skau, Reno; Beasley & Holden,
Reno; John M. Doyle, Winnemucca, for Appellant and Cross-Respondent.
Jack T. Bullock, Winnemucca, for Respondents and Cross-Appellants.
Question of fact determined by trial court remains undisturbed unless it is found to be clearly erroneous
or not based on substantial evidence. NRCP 52(a).
District court's reformation of contract to sell cattle on ground of mutual mistake in valuation of cattle
violated seller's right to procedural due process and fair trial where parties did not dispute purchase price of
cattle and district court did not make it known to parties that the issue was being considered, thus depriving
seller of reasonable, prior notice of this particular issue and denying seller the opportunity to develop facts
and confront the issue. U.S.C.A.Const. Amends. 5, 14; NRCP 9(b).
3. Pleading.
Affirmative defense can be considered if not pleaded if fairness so dictates and prejudice will not follow.
NRCP 15(b).
OPINION
Per Curiam:
This is an appeal from the judgment which credited to Quinn River Ranch $SS,560, as a
result of mutual mistake in the valuation of cattle for sale.
River Ranch $88,560, as a result of mutual mistake in the valuation of cattle for sale. Because
we agree with Ivory Ranch that the issue of mutual mistake was never pleaded or presented to
the court, we reverse and remand for a modification of the judgment.
The Facts
On October 21, 1981, appellant Ivory Ranch, Inc. (seller) and respondent Quinn River
Ranch, Inc. (buyer) contracted for, among other things, the purchase of cattle at a price which
was to be established by two qualified appraisers. The cattle were to be selected, valued, and
paid for as soon as practical after date of closing on December 15, 1981, and no later than
February 15, 1982. The appraisals were completed on March 15, 1982, and were telephoned
to the ranch manager of Quinn River Ranch. Subsequently, the accountant for Quinn River
Ranch prepared a Bill of Sale, and a total amount of $1,541,650 was paid to Ivory Ranch for
the cattle on May 14, 1982. On May 25, 1982, the President of Ivory Ranch confirmed (by
letter) the sale of cattle to Quinn River Ranch for $1,541,650.
A later disagreement arose over whether the amount paid for the cattle should have
accrued interest from February 15, 1982. Neither party ever disputed the principal sum of
$1,541,650 as set forth in the Bill of Sale. The district court determined that interest should
have accrued but that the Bill of Sale did not accurately reflect the purchase price of the
cattle. This determination was based on the testimony of the Quinn River Ranch manager as
to the number of cattle present on March 15, 1982, and their estimated worth. The district
court ascertained there to be mutual mistake of the parties and reformed this particular aspect
of the contract. The reformed instrument reflected the cost of the cattle as $1,453.090. Quinn
River Ranch then received a credit for the difference of $88,560. This was reflected as an
offset in the judgment.
The central issue before us, is whether the district court erred in reforming the contract as
to the price of the cattle.
Discussion
[Headnote 1]
A question of fact determined by the trial court remains undisturbed unless it is found to
be clearly erroneous or not based on substantial evidence. Stickelman v. Moroni, 97 Nev.
405, 407, 632 P.2d 1159, 1161 (1981); NRCP 52(a).
[Headnote 2]
NRCP 9(b) requires that special matters (fraud, mistake, or condition of the mind), be
pleaded with particularity in order to afford adequate notice to the opposing party.
afford adequate notice to the opposing party. Nowhere in the pleadings or the trial statements
did either party dispute the purchase price of the cattle. Nor did the district court make it
known to the parties that the issue was being considered. The case was tried on the
assumption that the Bill of Sale correctly reflected the purchase price. It would be unfair to
grant relief based on an issue which was not properly before the district court for
determination. See Schwartz v. Schwartz, 95 Nev. 202, 205, 591 P.2d 1137, 1140 (1979).
Ivory Ranch was deprived of reasonable, prior notice of this particular issue and was denied
the opportunity to develop facts and confront the issue. Ivory Ranch suffered prejudice as a
result of the finding of the district court.
[Headnote 3]
It is recognized that an affirmative defense can be considered (if not pleaded) if fairness so
dictates and prejudice will not follow. Schwartz, 95 Nev. at 205; NRCP 15(b). For the
reasons elucidated above, it has been established that Ivory Ranch suffered prejudice as a
result of the mutual mistake found to exist by the district court.
To allow the district court to reform the contract would violate Ivory Ranch's right to
procedural due process and a fair trial. See Jimenez v. Tuna Vessel Granada, 652 F.2d 415
(5th Cir. 1981). Accordingly, we reverse that portion of the district court's ruling and remand
for a modification of the judgment.
We are not inclined to consider the assignments of error raised on cross-appeal.
Respondents provide two pages of conclusory arguments and fail to cite relevant authority.
State Industrial Insurance System v. Buckley, 100 Nev. 376, 682 P.2d 1387 (1984).
____________
101 Nev. 473, 473 (1985) Collier v. State
GREGORY ALAN COLLIER, Appellant, v.
No. 15161
September 5, 1985 705 P.2d 1126
Appeal from judgment of conviction for first degree murder with the use of a deadly
weapon and for robbery with use of a deadly weapon, and from imposition of sentence of
death, Eighth Judicial District, Clark County; Robert G. Legakes, Judge.
Defendant was convicted in the district court of first degree murder with use of deadly
weapon and of robbery with use of deadly weapon, and after penalty hearing, jury returned
death sentence.
deadly weapon, and after penalty hearing, jury returned death sentence. Defendant appealed
murder conviction and imposition of death sentence. The Supreme Court held that: (1)
remarks of prosecutor in closing argument during penalty phase were improper, when
admitted over defense objection; (2) other comments by prosecutor in closing argument of
penalty phase were comments so improper as to justify sua sponte intervention by trial court;
(3) trial court abused its discretion in limiting closing arguments during penalty phase to one
hour; and (4) cumulative effect of the multiple errors required that death sentence be set
aside.
Judgment of conviction affirmed; imposition of death sentence set aside, and cause
remanded for penalty hearing.
Morgan D. Harris, Public Defender, Las Vegas; Terrence M. Jackson, Deputy, Las Vegas;
Susan Deems Roske, Deputy, Las Vegas, for Appellant.
Vegas; James Tufteland, Deputy, Las Vegas; Carolyn Ellsworth, Deputy, Las Vegas, for
Respondent.
1. Criminal Law.
District courts have duty to ensure that every accused shall receive fair trial.
2. Criminal Law.
Duty of trial courts to ensure that every accused receives fair trial requires that trial courts exercise their
discretionary power to control obvious prosecutorial misconduct sua sponte.
3. Criminal Law.
Prosecutor's references during closing argument in penalty phase of prosecution for murder and robbery,
which based argument that defendant should die upon references to criminal history of one of the State's
most notorious criminals who was currently under sentence of death, which sought to promote conclusion
that defendant's rehabilitation was improbable, that he might well kill again while in prison, and that he
should therefore be put to death, were highly inappropriate, in that they diverted jury's attention from its
proper purpose and discussed matters not in evidence.
4. Criminal Law.
It may be proper for counsel to go beyond evidence to discuss general theories of penology such as merits
of punishment, deterrence, and death penalty, in penalty phase of criminal prosecution.
5. Criminal Law.
Generally, factual matters outside record are irrelevant and are not proper subjects for argument to jury in
criminal prosecution.
6. Criminal Law.
Prosecutor's argument in penalty phase of murder and robbery prosecution that jury had to be angry with
defendant or else theirs was not a moral community was improper.
7. Criminal Law.
Prosecutor's comments in closing argument in penalty phase of murder and robbery prosecution that
defendant would still have hope, hope of escape, pardon . . ., if not sentenced to death, were improper.
8. Criminal Law.
Remarks about possibility of escape are improper in penalty phase of murder and robbery prosecution.
9. Criminal Law.
Prosecutor's statement, during argument in penalty phase of murder and robbery prosecution, that he
would not ask jury to tell defendant he was to die unless prosecutor could do it himself, and his facing of
defendant and exhorting defendant, you deserve to die, were egregiously improper.
10. Criminal Law.
Prosecutors must not express their personal beliefs in penalty phase of prosecutions, as prosecutors thus
invite under jury reliance on conclusions personally endorsed by them.
11. Criminal Law.
Comment by prosecutor in argument during penalty phase of murder and robbery prosecution that
coroner had to carry victim out of store in body bag and bury him someplace because defendant decided
that victim's son would not have father, was so manifestly improper as to justify sua sponte intervention by
trial court.
12. Criminal Law.
Comment by prosecutor during closing argument in penalty phase of murder and robbery prosecution
referring to costs of imprisonment, that he could argue that keeping defendant in prison for life at cost to
taxpayers of $35,000 a year was not worth it, but he would not argue it, was so improper as to justify sua
sponte intervention by trial court, as comments vastly overstated cost of maintaining inmate, were totally
unsupported by record, and provided inference for jury that it should save State $35,000 per year by
imposing death penalty upon defendant.
13. Criminal Law.
To proffer issue of saving money through particular sentence for defendant is improper.
14. Criminal Law.
Disclaiming of improper argument after it has been presented to jury in penalty phase of criminal
prosecution does not remove impropriety of argument.
15. Criminal Law.
Trial court abused its discretion by limiting closing arguments during penalty phase of murder and
robbery prosecution to one hour, where guilt phase of trial had lasted five days, penalty phase had
consumed another two days, jury had heard testimony from more than 30 witnesses, and trial transcript
covered 1,185 pages.
16. Criminal Law.
Cumulative effect of trial court's failure to control prosecutorial misconduct of improper comments
during closing argument of penalty phase of murder prosecution and improper limitation of closing
arguments to one hour constituted errors, which, in combination with each other, denied defendant fair
sentencing hearing, and thus, defendant's death sentence had to be set aside.
17. Criminal Law.
Errors of various types of improper closing argument by prosecutor in penalty phase of murder
prosecution and improper limitation of time for closing arguments arguably might all be
deemed to be of constitutional magnitude.
for closing arguments arguably might all be deemed to be of constitutional magnitude.
18. Criminal Law.
Prosecutorial misconduct can violate fair trial provision of State Constitution. Const. Art. 1, 3;
19. Criminal Law.
Undue limitations on argument by counsel in criminal prosecution may violate state and federal
constitutional provisions mandating effective assistance of counsel. Const. Art. 1, 3; U.S.C.A.Const.
Amend. 6.
OPINION
Per Curiam:
The appellant, Gregory Alan Collier, shot and killed a convenience store clerk and robbed
the store. Following his arrest and indictment, a jury convicted Collier of first degree murder
with use of a deadly weapon, and of robbery with use of a deadly weapon. After a penalty
hearing, the jury returned a death sentence. Collier appeals the first degree murder conviction
and the imposition of the death sentence. We affirm the conviction, but we set aside the death
sentence and we remand for a new penalty hearing.
The record indicates that in Las Vegas, on the evening of June 3, 1981, nineteen-year old
Gregory Collier went out drinking. That night he consumed at least eight beers and several
shots of tequila, as well as several Quaaludes. By eleven P.M., he was having trouble
walking. Nevertheless, early the next morning he had found his way to a Stop 'N Go
convenience store. Two witnesses saw him there with the store's clerk, Earl Harris. Later,
Harris was found shot to death in the store, with his hands bound behind his back. Some
money and a pocket calculator were missing. Collier's fingerprint was found in the store, and
he was arrested. The stolen calculator was discovered in Collier's possession.
The Clark County Grand Jury indicted Collier. After a trial, a jury convicted him for first
degree murder and robbery, both aggravated through the use of a deadly weapon. In the
ensuing penalty hearing, testimony covered Collier's troubled adolescence, his relative
youthfulness at the time of the murder, and certain prior offenses.
After receiving testimony as to aggravating and mitigating circumstances, the court limited
closing arguments to only one hour per side, despite defense counsel's objections. Then,
during the arguments, the court repeatedly permitted the prosecuting attorneys to overstep
established bounds of legitimate advocacyagain, in most instances, over defense
counsel's objections.
again, in most instances, over defense counsel's objections. Due to the limitation on final
argument, combined with the effect of this prosecutorial misconduct, we feel compelled to set
aside the death sentence and to remand the case for a new penalty hearing. Because the
district court's failure to correct multiple incidents of prosecutorial misconduct constituted the
more egregious of its errors, we will address the prosecutor's rhetorical improprieties first.
I
Thus, once again, we regretfully turn to consider the problem of prosecutorial misconduct:
a burden to the judicial system that is totally unnecessary and, so far as the prosecution is
concerned, often self-defeating.
[Headnotes 1, 2]
Our district courts have a duty to ensure that every accused shall receive a fair trial. E.g.,
Garner v. State, 78 Nev. 366, 373, 374 P.2d 525 (1962). This duty requires that trial courts
exercise their discretionary power to control obvious prosecutorial misconduct sua sponte.
State v. Cyty, 50 Nev. 256, 259, 256 P. 793 (1927); accord Viereck v. United States, 318
U.S. 236, 237 (1943); Greenberg v. United States, 280 F.2d 472, 474 (1st Cir. 1960);
Commonwealth v. Sherman, 2 N.E.2d 477, 484 (Mass. 1936). Unfortunately, in the instant
case, the trial court did not restrain prosecutorial misconduct when defense counsel tendered
timely contemporaneous objections, nor did it intervene sua sponte in other appropriate
instances.
[Headnote 3]
For example, in closing argument during the penalty phase, the prosecuting attorney based
an appeal that Gregory Collier should die upon references to the criminal history of one of
Nevada's most notorious criminals, Patrick McKenna, who currently is under sentence of
death.
1
Inter alia, the prosecuting attorney asserted: The prison doesn't rehabilitate.
____________________

1
At the time of Collier's trial, McKenna had been receiving vast attention in the media for the murder of a
fellow jail inmate, J. J. Nobles. This court recently affirmed a sentence imposing the death penalty upon
McKenna for this crime, through an opinion which recited some of McKenna's extensive criminal history. See,
McKenna v. State, 101 Nev. 338, 705 P.2d 614 (1985). Over the years, McKenna also has received extensive
media attention in the Las Vegas area for other violent crimes including kidnapping, murder and sexual assault.
Details of his lurid career are partially recited in McKenna v. State, 98 Nev. 323, 647 P.2d 865 (1982);
McKenna v. State, 96 Nev. 811, 618 P.2d 348 (1980); McKenna v. State, 85 Nev. 524, 458 P.2d 358 (1969);
and Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966).
The prison doesn't rehabilitate.
. . .
Sure. We rehabilitate a few criminals and we are lucky sometimes but to the large
part prisons don't rehabilitate.
And some people would argue that the purpose, the sole purpose, of prison is to
incapacitate and contain someone as Mr. Dougherty testified.
Well, I suppose that prison does do that and Mr. Jackson [the public defender] asks
you to return a life sentence for Gregory Collier so that he can be incapacitated.
But, prison does not prevent crimes against fellow inmates, ladies and gentlemen.
Prison didn't keep Patrick McKenna
[defense objection interposed and overruled]
Prison didn't keep Patrick McKenna, one of our more notable inmates, from
strangling his fellow inmate in jail, J. J. Nobles.
These remarkswhich sought to promote a conclusion that Collier's rehabilitation was
improbable, that he might well kill again while in prison, and that he should therefore be put
to deathwere highly inappropriate. See State v. McLoughlin, 652 P.2d 531, 536 (Ariz.
1982); People v. Jones, 37 Cal.Rptr. 454, 464 (Cal.App. 1964). 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.
[Headnotes 4, 5]
It should be noted that these remarks were also improper because they discussed matters
not in evidence. Patrick McKenna was not on trial; the record contained no evidence
whatever about his unrelated criminal history; no factual basis whatever existed for
suggesting any relationship between McKenna and Gregory Collier. Of course, it may be
proper for counsel to go beyond the evidence to discuss general theories of penology such as
the merits of punishment, deterrence and the death penalty. E.g., Gregg v. Georgia, 428 U.S.
153, 160 (1976) (Stewart, Powell & Stevens, J.J. opinion); Davis v. State, 665 P.2d 1186,
1200-01 (Okla.Crim.App. 1983). In general, however, factual matters outside the record are
irrelevant and are not proper subjects for argument to the jury. State v. Kassabian, 69 Nev.
146, 149, 153-54, 243 P.2d 264 (1952). And here, by equating Collier's unknown future in
prison to the history of McKenna as portrayed in the media, the prosecuting attorney
deliberately sought to convince the jury that there was but one rational solutioni.e., to
execute Collier before he could kill again.
[Headnote 6]
Another instance of prosecutorial misconduct concerns an appeal that the jury must be
angry with Collier or else we are not a moral community. . . . The prosecutor declaimed:
The moral community is one which has its base in law and trust and others have to
obey these laws.
Gregory Collier has violated that trust. . . .
If we are not angry with him, the implication then is we are not a moral community
and that is
[objection interposed and overruled]
. . .
Your anger is a sign of your caring on the part of this community and its citizens.
The chance to see that this killer gets what he deserves is something this society, this
community, needs.
In justification of this effusion, the prosecution now urges us that general comments about
community standards are proper, and that Gregg v. Georgia, supra, supports this position.
The Gregg decision, however, discussed a legislature's implementation of the community's
moral outrage through legislation. Id. at 186-87 (Stewart, Powell & Stevens, J.J. opinion).
Gregg in no way supports the view that a prosecutor may blatantly attempt to inflame a jury
by urging that, if they wish to be deemed moral and caring, then they must approach their
duties in anger and give the community what it needs: [t]he chance to see that this killer
gets what he deserves.
[Headnotes 7, 8]
The prosecuting attorney also improperly commented over objection that Collier would
still have hope, hope of escape, pardon. . . . Remarks about the possibility of escape are
improper. See State v. McLoughlin, 652 P.2d 531, 536 (Ariz. 1982). The prospect of escape
is not part of the calculus that the jury should consider in determining a defendant's sentence.
2

[Headnote 9]
The penultimate instance of prosecutorial misconduct occurred, however, when the
prosecuting attorney state: Mr.
____________________

2
Earlier this year we articulated an objective, unemotional jury instruction to be used in the future concerning
the issue of possible pardon. Petrocelli v. State, 101 Nev. 46, 56, 692 P.2d 503 (1985). This instruction declares
that a jury should not speculate about the possibility of a pardon. Id. In the same vein as Petrocelli, the Supreme
Court has very recently disapproved of prosecuting counsel telling the jury in argument that a pardon might later
be granted to the defendant. See Caldwell v. Mississippi, 105 S.Ct. 2633, 2639 (1985).
Mr. Jackson [defense counsel] asks you to look at Gregory Alan Collier and to look
him in the eye and tell him that you want to kill him, to tell him that you want to
execute him.
Ladies and gentlemen, I would not ask you to do that unless I could do that myself.
Then, it appears, the prosecuting attorney melodramatically faced the defendant, and exhorted
him: Gregory Alan Collier, you deserve to die. (Emphasis added.)
These remarks were egregiously improper. In Tart v. State, 634 P.2d 750, 751-52
(Okla.Crim.App. 1981), the court reversed a conviction achieved when a prosecutor similarly
told a defendant: [Y]ou are guilty under the evidence and the law. . . . See also Nevius v.
State, 101 Nev. 238, 248, 699 P.2d 1053 (1985) (prosecutor must not seek death penalty on
behalf of the victims and himself).
[Headnote 10]
Such an injection of personal beliefs into the argument detracts from the unprejudiced,
impartial, and nonpartisan role that a prosecuting attorney assumes in the courtroom.
3
State
v. Rodriguez, 31 Nev. 343, 346, 102 P.863 (1909). By stepping out of the prosecutor's role,
which is to seek justice, id. at 347, 102 P. 863, and by invoking the authority of his or her
own supposedly greater experience and knowledge, a prosecutor invites undue jury reliance
on the conclusions personally endorsed by the prosecuting attorney. United States v.
Frascone, 747 F.2d 953, 957 (5th Cir. 1984); Tucker v. Kemp, 762 F.2d 1480, 1484-85 (11th
Cir. 1985) (en banc); see State v. Gunderson, 144 N.W. 659, 660 (N.D. 1913). Prosecutors
therefore must not express their personal beliefs, as was done here. Emerson v. State, 98 Nev.
158, 163-64, 643 P.2d 1212 (1982); Owens v. State, 96 Nev. 880, 885, 620 P.2d 1236 (1980).
[Headnote 11]
We now turn to two comments not initially objected to at trial. Because of their nature, we
believe they merit our disapproval, and constituted proper occasions for sua sponte
intervention by the district court. The first comment was that the coroner had to carry
[Harris] out of that store in a body bag and bury him someplace because this man [Collier]
decided that his son wouldn't have a father. This comment was manifestly improper.
____________________

3
The record contains a newspaper clipping which illustrates how this remark by the prosecuting attorney was
perceived. The remark was originally reported in the Las Vegas Review Journal as I execute you, you
murderer. Apr. 16, 1981, at 1B. Although the newspaper corrected the quotation in a later issue, the incorrect
quotation demonstrates how an eyewitness understood the thrust of the prosecuting attorney's closing arguments.
Mears v. State, 83 Nev. 3, 12 & n. 4, 422 P.2d 230 (1967) (A little girl is fatherless, and a
woman is without her husband. . . . There was a little girl here that will not be able to hear her
daddy say, Merry Christmas' this year. . . . By your verdict you can denounce this conduct.)
Accord Dearman v. State, 93 Nev. 364, 368 & n. 3, 369, 566 P.2d 407 (1977) (reference to
the decedent's inability to keep his New Year's resolution); Moser v. State, 91 Nev. 809, 813
& n. 4, 544 P.2d 424 (1975) (reference to the impact on the victim's family at Christmas
time).
[Headnotes 12-14]
The final remark we denounce concerns the prosecuting attorney's reference to the costs of
imprisonment: I could argue that keeping Gregory Collier in prison for life at a cost to the
taxpayers of $35,000.00 a year isn't worth it. But, I will not argue that. . . . In the first place,
this remark vastly overstated the cost of maintaining an inmate in the Nevada State Prison,
and was totally unsupported by the record. Perhaps more importantly, the jury could hardly
fail to grasp the inference tendered by the prosecuting attorney's factually inaccurate,
unsupported remark, to wit: that the jury should save the state $35,000.00 per year by
imposing the death penalty upon Gregory Collier. To proffer the issue of saving money
through a particular sentence for the defendant is improper. Brooks v. Kemp, 762 F.2d 1383,
1412 (11th Cir. 1985) (en banc); State v. Jordan, 294 P.2d 677, 679 (Ariz. 1956); see State v.
Mircovich, 35 Nev. 485, 492, 126 P. 765 (1913); cf. McGuire v. State, 100 Nev. 153, 158,
677 P.2d 1060 (1984) (costs of witnesses paid by the state on behalf of the defendant not
properly raised before the jury). Evidently, the prosecuting attorney realized the impropriety
of such an appeal, and therefore resorted to the rather transparent ruse of mentioning the
improper argument but then disclaiming intent to present it. This subterfuge must fail; for this
court has recently determined that a prosecutor's resourceful disavowal after the fact of any
intention to make an improper argument [does] not remedy the transgression. Jacobs v.
State, 101 Nev. 356, 705 P.2d 130 (1985).
In sum, each of the foregoing arguments was improper, and to permit them was error. In a
particular case, any of them alone might be a ground for reversal. In the instant case, we need
not so hold, but need only consider whether their cumulative impactcombined with the
effect of the court's limitation on final argumentwarrants the granting of a new penalty
hearing.
II
[Headnote 15]
As previously noted, the trial court limited closing arguments to only one hour per side.
to only one hour per side. This limitation was imposed even though the guilt phase of trial
had lasted 5 days; the penalty phase consumed another 2 days; the jury had heard testimony
from more than 30 witnesses; and the trial transcript covered 1185 pages. Based on our
review of this substantial record, we determine that the one-hour limitation on closing
arguments during the penalty phase constituted an abuse of the trial court's discretion.
4

The unreasonableness of this restriction is accented when it is realized that the outcome
was to cast the die of fate for the whole of eternity for the defendant. State v. St. Clair, 282
P.2d 323, 332 (Utah 1955). Even if the public defender's task had not been rendered more
onerous through the prosecutorial misconduct previously discussed, defense counsel would
have had less than two minutes to review the diverse roles of each witness in the case. In
addition, counsel needed time to discuss the extent to which mitigating and aggravating
circumstances had been established by the record. Counsel needed to make general opening
and closing remarks, to thank the jury, to remind them of their weighty duties, and to perform
other traditional rhetorical functions. In another case, it might well have been reasonable to
impose a one-hour time limitation. In the instant case, however, we believe the trial court
abused its discretion by limiting defense counsel to only one hour of final argument.
III
[Headnotes 16-19]
We previously have had occasion to reverse sentences based on errors arising from
prosecutorial misconduct alone. In the instant matter, however, the time limitation imposed
by the trial court did not impinge merely on defense counsel's capacity to address the issues
properly before the court. The public defender was not only forced to compress his
argument about legitimate issues into the hour allowed to him; he also was left severely
limited in time to repair potential prejudice improperly interjected through prosecutorial
misconduct.
____________________

4
E.g., People v. Keenan, 13 Cal. 581, 582 (1859) (with 14 witnesses and voluminous testimony, 1 1/2 hours of
argument was too little in a murder case); Fugate v. Commonwealth, 72 S.W.2d 47, 48-49 (Ky. 1934) (with the
amount of evidence and the gravity of the murder charge, 25 minutes of argument was too little); Ray v. State,
330 So.2d 580, 585 (Miss. 1976) (30 minutes of argument was too little in a case alleging illegal discharge of a
firearm into a dwelling; State v. Tighe, 71 P. 3, 9 (Mont. 1903) (with a 5 day trial and many witnesses, 1 3/4
hours of argument was too little in a murder case); State v. Rogoway, 81 P. 234, 235 (Or. 1905) (with a 3 day
trial, 21 witnesses and 51 exhibits, 45 minutes of argument was too little); State v. Ballenger, 24 S.E.2d 175, 177
(S.C. 1943) (with 22 witnesses and less than 3 minutes per witness for arguments, one hour of oral argument was
too little time in a murder case); State v. St. Clair, 282 P.2d 323, 331-32 (Utah 1955) (with 16 witnesses and
conflicting testimony, 40 minutes of argument was too little time in a murder case); State v. Mayo, 85 P. 251,
254 (Wash. 1906) (with more than 4 days of trial, 20 witnesses and a record longer than 500 pages, 1 1/2 hours
of argument was too little in a murder case).
only forced to compress his argument about legitimate issues into the hour allowed to him; he
also was left severely limited in time to repair potential prejudice improperly interjected
through prosecutorial misconduct. Thus, we have concluded that the cumulative effect of the
multiple errors discussed herein requires us to set aside the sentence heretofore imposed, and
to remand the case for a new penalty hearing. Hylton v. State, 100 Nev. 539, 541, 688 P.2d
304 (1984); Emerson v. State, 98 Nev. 158, 164, 643 P.2d 1212 (1982); Garner v. State, 78
Nev. 366, 375, 376, 374 P.2d 525 (1962).
5

In sum, we hold that the court's failure to control the prosecutorial misconduct, and the
time limitation imposed on closing arguments, constituted errors which in combination with
each other denied appellant Gregory Collier a fair sentencing hearing. We therefore set aside
his death sentence and we remand the case for a new sentencing hearing.
We have examined the other assignments of error and find them to be without merit.
____________________

5
Although we need not so hold, we note that the errors mentioned herein arguably might all be deemed to be
of a constitutional magnitude. Prosecutorial misconduct can violate the fair trial provision of our state's
constitution. State v. Teeter, 65 Nev. 584, 647, 200 P.2d 657 (1948); State v. Rodriguez, 31 Nev. 343, 347, 102
P.863 (1909); accord United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1194 (3rd Cir. 1984); Tucker v.
Francis, 723 F.2d 1504, 1506 (11th Cir. 1984); State v. Muskus, 109 N.E.2d 15, 19 (Ohio 1952), appeal
dismissed, 115 N.E.2d 585 (Ohio 1953); see also Nev. Const., art. I, 8. Undue limitations on argument by
counsel may violate state and federal constitutional provisions mandating effective assistance of counsel. People
v. Keenan, 13 Cal. 518, 584 (1859); People v. McMullen, 133 N.E. 328, 330 (Ill. 1921); State v. Rogoway, 81
P.234, 234 (Or. 1905); State v. Ballenger, 24 S.E.2d 175, 177 (S.C. 1943); State v. Mayo, 85 P.251, 254 (Wash.
1906); see Gardner v. Florida, 430 U.S. 349, 360, 362 (1977). The penalty phase of a trial requires effective
assistance of counsel, Mazzan v. State, 100 Nev. 74, 79, 675 P.2d 409 (1984), and to be effective, counsel needs
the opportunity to present the client's case to the jury.
____________
101 Nev. 484, 484 (1985) DeLee v. Cost Reduction Engineering
MORRIS DeLEE FAMILY TRUST; MORRIS DeLEE as Trustee of the Morris DeLee
Family Trust, and MORRIS DeLEE, Individually, Appellant, v. COST REDUCTION
ENGINEERING, INC.; JAMES EDWARD OWEN and TITLE SERVICE AND ESCROW
CO., Respondents.
No. 15421
September 5, 1985 705 P.2d 161
Appeal from an order dismissing an action for judicial foreclosure, Eighth Judicial
District, Clark County; Carl J. Christensen, Judge.
Vendor brought judicial foreclosure action against purchaser of land. The district court
held that written agreement between the parties, entered into after purchaser was unable to
make second installment payment and which required purchasers to pay interest on all
delinquent sums at increased rate of 18 percent per annum rather than ten percent provided in
original agreement, was an accord and satisfaction for which the underlying agreement had
been altered, and dismissed the action for judicial foreclosure as premature. Vendor appealed.
The Supreme Court held that written agreement between the parties was not an accord and
satisfaction but was intended to be an extension agreement.
Peter L. Flangas, Las Vegas, for Appellant.
Frank J. Cremen, Las Vegas, for Respondents.
1. Accord and Satisfaction.
An accord is an agreement whereby one of the parties undertakes to give or perform, and others to accept,
in satisfaction of a claim something other than or different from what he is, or considers himself, entitled to.
Finding of an accord and satisfaction requires a meeting of the minds of the parties on terms of the
agreement, and can never be implied from language of doubtful meaning.
Written agreement between vendor and purchaser, entered into when purchaser was unable to make
second installment payment under original agreement and which required purchaser to pay interest on all
delinquent sums at increased rate of 18 percent per annum, was not an accord and satisfaction, but was
intended to be an extension agreement, where both parties characterized document as an extension
agreement, and where vendor never indicated an intent to have agreement replace or supersede purchaser's
obligation under the original agreement.
4. Compromise and Settlement.
Written agreement between vendor and purchaser, which required purchaser to pay interest on all
delinquent sums at an increased rate of 1S percent per annum rather than ten
percent under original agreement, entered into after purchaser was unable to make
second installment payment, was not a compromise agreement where parties enter
into a contract in an effort to resolve their differences over a claim and agree to an
amicable settlement based on mutual concessions, since there were no mutual
concessions between the parties.
purchaser to pay interest on all delinquent sums at an increased rate of 18 percent per annum rather than ten
percent under original agreement, entered into after purchaser was unable to make second installment
payment, was not a compromise agreement where parties enter into a contract in an effort to resolve their
differences over a claim and agree to an amicable settlement based on mutual concessions, since there were
no mutual concessions between the parties.
5. Novation.
Written agreement between vendor and purchaser, entered into when purchaser was unable to make
installment payment under original agreement and which required purchaser to pay interest on all
delinquent sums at an increased rate of 18 percent per annum rather than ten percent as provided in original
agreement, was not a substituted contract, where there was no mention or apparent intent by either party to
substitute written agreement for original agreement even though immediate effect was given to new
document's provisions, and where outstanding promissory notes were incorporated by reference into the
new agreement and were conceded to be ongoing obligation on part of purchaser.
OPINION
Per Curiam:
On January 19, 1979, Morris DeLee sold 2,040 acres of undeveloped land in the Amargosa
Valley in Nye County, Nevada, to Cost Reduction Engineering, Inc. (CRE) and James E.
Owen for the sum of $612,000. CRE paid $175,000 to DeLee and executed a promissory note
in favor of DeLee for the balance of $437,000. Payment of this note was guaranteed by Owen
individually and secured by a deed of trust executed and recorded on January 25, 1979. The
principal of the note was payable in three annual installments of $150,000 each and due on
the first day of January in 1980, 1981, and 1982 respectively. The unpaid balance was to carry
interest at 10 percent per annum.
On January 1, 1980, CRE was unable to make the initial installment payment of $150,000.
On May 20, 1980, the parties entered into an extension agreement by which CRE was given
until October 25, 1980, to pay a total of $168,000. This higher sum was intended by the
parties to be an amount equal to the initial installment payment under the note and the
accrued interest to date. In September, 1980, CRE paid $150,000 to DeLee and gave him a
promissory note for the balance of $18,000. DeLee accepted this arrangement.
On January 1, 1981, CRE was unable to make the second installment payment of $150,000
under the original agreement. On March 11, 1981, the parties signed a document which
required Owen to pay interest on all delinquent sums at the increased rate of 18 percent per
annum. Additionally, the parties agreed that upon the settlement of the promissory notes then
outstanding, Owen was to have the property appraised and an unspecified participation was
to be granted to DeLee in accordance with the differential as established by the two
appraisals.1
unspecified participation was to be granted to DeLee in accordance with the differential as
established by the two appraisals.
1

In April, 1982, having not received any further payments from Owen or CRE, DeLee
commenced an action seeking judicial foreclosure. Following a trial, at which respondents
asserted the affirmative defense of accord and satisfaction, the district court found that the
agreement between the parties signed on March 11, 1981, constituted an accord and
satisfaction by which the underlying agreement had been altered. The district court found that
this new agreement substituted an equity interest in the property in the form of an unspecified
participation for the security interest on the promissory note and that the parties had intended
a reasonable period of time in which the property was to be sold to be five years from the date
of the new agreement. The district court dismissed the action for judicial foreclosure as
premature. This appeal resulted.
[Headnote 1]
An accord is an agreement whereby one of the parties undertakes to give or perform, and
others to accept, in satisfaction of a claim something other than or different from what he is,
or considers himself, entitled to. Walden v. Backus, 81 Nev. 634, 408 P.2d 712 (1965). Yet
an accord and satisfaction should not be maintained as a pitfall into which the unwary may
fall by some act wholly unintended to express his acquiescence in a transaction, wherein his
lack of experience or lack of knowledge of technical law might debar him from a right of
action. Western Nat. Ins. Co. v. Trent, 69 Nev. 239, 244, 247 P.2d 208 (1952) citing Wolf v.
Humboldt County, 36 Nev. 26, 131 P.964 (1913).
[Headnote 2]
A finding of an accord and satisfaction requires a meeting of the minds of the parties on
the terms of the agreement. Pederson v. First Nat'l Bank of Nevada, 93 Nev. 388, 392, 566
P.2d 89 (1977); Wolf v. Humboldt County, supra at 31, 965. It can never be implied from
language of doubtful meaning. It must clearly appear from the evidence that there was in fact
and in reality a meeting of the minds before we will consider an agreement an accord and
satisfaction. Adelman v. Arthur, 83 Nev. 436, 433 P.2d 841 (1967).
____________________

1
The reference to two appraisals is one of several ambiguities in the document. Neither party was sure that
there even were two appraisals of the property. DeLee testified at trial that he thought there had been an
appraisal made a year earlier, but that he was unsure about it. There is nothing in the record which establishes
that a previous appraisal had been made or that Owen knew of it.
[Headnote 3]
Appellant contends that the document signed by the parties on March 11, 1981, was not an
accord and satisfaction but was intended to be an extension agreement similar to the previous
extension agreement between the parties. We agree.
Our review of the record and oral argument reveals no substantial evidence upon which
the district court could have found that the parties intended the March 11, 1981, agreement to
be an accord and satisfaction. Indeed, we find substantial evidence indicating the parties
never intended the document to be anything other than an extension agreement providing for
additional compensation to appellant in the form of an increased rate of interest on the
delinquent amounts owed and an unspecified participation at the time of the sale of the
property. Both parties characterized the March 11, 1981, document as an extension
agreement. Appellant never indicated an intent to have this agreement replaced or supersede
respondents' obligations under the original agreement. There does not appear from the record
to have been the requisite clear meeting of the minds of the parties that the March 11, 1981,
agreement was to operate as an accord and satisfaction. Indeed, it appears that there was a
clear meeting of the minds of the parties that this document was not an accord and
satisfaction.
[Headnote 4]
This was not a compromise agreement whereby the parties enter into a contract in an effort
to resolve their differences over a claim and agree to an amicable settlement based on mutual
concessions. Cf. Johnson v. Utile, 86 Nev. 593, 472 P.2d 335 (1970). There were no mutual
concessions between the parties.
[Headnote 5]
Neither was it a substituted contract. There is no mention or apparent intent by either party
to substitute this agreement for the original agreement even though immediate effect was
given to the new document's provisions. On the contrary, the outstanding promissory notes
are incorporated by reference into the new agreement and are conceded to be ongoing
obligations on the part of the respondents.
The district court erred in finding that the agreement between the parties dated March 11,
1981, constituted an accord and satisfaction. While the district court found that the parties
had intended to give respondents a reasonable period of time in which to sell the property,
given appellant's age and circumstances, whatever constituted a reasonable period of time has
now passed. The district court should now allow appellant to proceed with an action for
judicial foreclosure.
Accordingly, we reverse the order of the district court dismissing appellant's action for
judicial foreclosure and remand for proceedings consistent with this opinion.
Springer, C. J., and Gunderson, Steffen, and Young, JJ., and Guinan, D. J.,
2
concur.
____________________

2
The Governor designated The Honorable James J. Guinan, Judge of the Second Judicial District Court, to
sit in the place of the Honorable John C. Mowbray, Justice, who voluntarily disqualified himself. Nev. Const.,
art. 6 4.
____________
101 Nev. 489, 489 (1985) In re Hilton Hotel
IN THE MATTER OF THE LAS VEGAS
HILTON HOTEL FIRE LITIGATION
INTERMOUNTAIN VETERINARY MEDICAL ASSOCIATION, INC., a Utah Corporation;
SAVINGS PLUS SYSTEMS, INC., a Missouri Corporation; KANNEY MARKETING
SERVICES, a Division of NEIL J. KANNEY, INC., a Foreign Corporation;
SPELTS-BAILEY, INC., a Nebraska Corporation, Formerly Doing Business as UNITED
BANK SERVICES CO., INC., a Nebraska Corporation; MEERMANS ADVERTISING CO.,
INC., an Ohio Corporation, Doing Business as MEERMANS ADVERTISING CO., Formerly
Known as W. R. MEERMANS; FINANCIAL PROGRAMS, INC., and Ohio Corporation,
Doing Business as J. FRANCIS WALSH COMPANY; PATRICK R. CONWAY &
ASSOCIATES, INC., a Minnesota Corporation; SELECT BRANDS INDUSTRIES, INC., a
Kansas Corporation, Doing Business as SELECT AWARDS; STRATEGIC MARKETING,
INC., a Minnesota Corporation, Appellants, v. KIESLING-HESS FINISHING COMPANY;
MARTIN STERN, Jr., AIA ARCHITECT, Doing Business as MARTIN STERN, Jr., AIA
ARCHITECT AND ASSOCIATES, a California Corporation; SHAW INDUSTRIES, INC., a
Foreign Corporation, Doing Business as PHILADELPHIA CARPET COMPANY;
GERRINGER CARPET SERVICE, INC., a Nevada Corporation; CLARK COUNTY, a
Political Subdivision of the State of Nevada; DYNALECTRIC COMPANY OF NEVADA, a
Nevada Corporation, Doing Business as DYNALECTRIC-VEGAS VALLEY COMPANY;
VEGAS VALLEY ELECTRIC, INC., a Nevada Corporation, Doing Business as
DYNALECTRIC-VEGAS VALLEY COMPANY; UNITED AIR CONDITIONING
CORPORATION, a California Corporation;
W. J. THOMPSON, INC.; PYROTRONICS, a Division of BAKER INDUSTRIES, INC.,
KIDDE, INC.; ROBERT J. MUNRO, INC.; COHAMA; RIVERDALE; BOB LENCH
COMPANY INCORPORATED; EDWARDS COMPANY, INC., a Connecticut Corporation;
HONEYWELL, a Delaware Corporation; MASTER PROTECTION ENTERPRISES, a
Foreign Entity, Successor in Interest to CLARK COUNTY FIRE EQUIPMENT, INC.,
Respondents.
No. 15613
September 10, 1985 706 P.2d 137 Appeal from order granting summary judgment,
Eighth Judicial District Court, Clark County; Paul S.
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
Negligence actions brought by foreign corporations were dismissed on motion for
summary judgment by the district court and corporations appealed. The Supreme Court, held
that attendance of representatives of foreign corporations at convention within state was not
doing business in the state so as to require corporation to qualify in the state in order to
bring suit.
Reversed.
Daniel F. Polsenberg, Galatz, Earl & Catalano, Las Vegas, for Appellants.
Corby D. Arnold, P.C., Las Vegas, for Respondent Martin Stern, Jr., AIA Architect.
Lyles and Austin, Las Vegas, for Respondent Gerringer Carpet Service, Inc.
Philip R. Byrnes, Sitter, Mayer & Mancuso, Las Vegas, for Respondent Kiesling-Hess
Finishing Company.
Brown, Wells, Beller & Kravitz, Las Vegas, for Respondent Shaw Industries, Inc. doing
business as Philadelphia Carpet Company.
Dickerson, Miles, Pico & Mitchell, Las Vegas, for Respondent Clark County.
Virgil R. Gentner, Chtd., Las Vegas, for Respondent Dynalectric Company of Nevada &
Vegas Valley Electric, Inc.
Keefer, O'Reilly & Haight, Las Vegas, for Respondent W. J. Thompson, Inc.
Erickson, Thorpe, Swainston & Cobb, Ltd., Reno, for Respondent Kidde, Inc.
Bell & Young, Las Vegas, for Respondents Cohoma and Riverdale.
Law Offices of Paul C. Parraguirre, Las Vegas, for Respondent Edwards Company, Inc.
Goethals & Swanson, Las Vegas, for Respondent Master Protection Enterprises successor
in interest in Clark County Fire Equipment, Inc.
Jeffrey Ian Shaner, Las Vegas, for Respondent United Air Conditioning Corporation.
T. Gregory Apocotos, Las Vegas, for Respondent Pyrotronics.
Law Office of Leland E. Lutfy, Las Vegas, for Respondent Robert J. Munro, Inc.
John Peter Lee, Ltd., Las Vegas, for Respondent Bob Lench Company Incorporated.
Johnson, Pilkington & Reynolds, Las Vegas, for Respondent Honeywell.
1. Corporations.
Act of foreign corporation in transacting single piece of business in the state is not doing business in
the sense contemplated by qualification statute, NRS 80.010.
2. Corporations.
Corporations, by having representatives attend a convention within state, were not doing business
under statutes requiring such a corporation to have qualified with secretary of state before suing in the
state. NRS 80.010, 80.210.
OPINION
Per Curiam:
The Las Vegas Hilton Hotel Fire litigation is a series of consolidated cases filed as a result
of a fire at the Las Vegas Hilton Hotel on February 10, 1981. Appellants, foreign corporate
plaintiffs who allegedly suffered damages as a result of the hotel fire, appeal a motion for
partial summary judgment, which was granted against them and in favor of respondents. In
granting the summary judgment motion, the district court determined that the foreign
corporations were not qualified to do business in Nevada, and thus could not commence legal
actions in our courts. Appellants contend that merely attending a convention at the Hilton
Hotel is not doing business in Nevada in the sense that requires qualifying as a prerequisite
to suing in our courts. We agree.
Appellants are foreign corporations whose representatives were attending a convention in
the Las Vegas Hilton on February 10, 1981, the day of the Hilton fire. As a result of damages
allegedly incurred, the corporations sued the various defendants in our state court.
Respondent Kiesling-Hess Finishing Company (Kiesling-Hess) moved for dismissal of
appellants' claims on the basis that the foreign corporations had not qualified to do business
in Nevada under NRS 80.010, and thus they were prohibited access to our courts under NRS
80.210. The other respondents joined in the motion.
joined in the motion. The district court treated the motion as a motion for a partial summary
judgment, and entered an order dismissing appellants' claims.
Summary judgment under NRCP 56 is appropriate only where the moving party is entitled
to judgment as a matter of law, where it is quite clear what the truth is, and where no genuine
issue remains for trial. Short v. Hotel Riviera, Inc., 79 Nev. 94, 103, 378 P.2d 979, 984
(1963). In reviewing an order granting a summary judgment, we must consider all evidence in
a light most favorable to the non-moving party. First Interstate Bank v. Green,
101 Nev. 113, 113-14, 694 P.2d 496, 497 (1985). The moving party has the burden of
establishing that a summary judgment is proper. Hotel Riviera, 79 Nev. at 103, 378 P.2d at
984.
Under NRS 80.010, a foreign corporation which enters this state for the purpose of doing
business must qualify in Nevada, by filing certain documents with the secretary of state,
before commencing or doing any business. If a foreign corporation fails or neglects to
comply with all these provisions, under NRS 80.210, the corporation shall not be allowed
to commence, maintain, or defend any action or proceeding in any court of this state.
We have recognized that [i]n enforcing such statutes, we must be careful not to limit
the rights of such corporations beyond the plain import of the language used in the statute.
Lawler v. Ginochio, 94 Nev. 623, 625, 584 P.2d 667, 668 (1978) (quoting Scott v.
Day-Bristol Consolidated Mining Co., 37 Nev. 299, 303, 142 P.625, 626 (1914)).
[Headnote 1]
We have previously interpreted these qualification statutes, determining that a single
piece of business in the state is not doing business' in the sense contemplated by the statute.
Pacific States Sec. Co. v. District Court, 48 Nev. 53, 57, 226 P. 1106 (1924). In Pacific States
we recognized that:
It seems to be the consensus of opinion that a corporation, to come within the
purview of most statutes prescribing conditions on the right of foreign corporations to
do business within the state, must transact therein some substantial part of its ordinary
business, which must be continuous in the sense that it is distinguished from merely
casual or occasional transactions, and it must be of such a character as will give rise to
some form of legal obligations. Hence it may be laid down as a general rule that the
action of a foreign corporation in entering into one contract or transacting an isolated
business act in the state does not ordinarily constitute the carrying on or doing of
business therein.
Id. (citation omitted) (emphasis added).
[Headnote 2]
Because merely attending a convention is certainly an isolated business act, appellants
were not doing business under NRS 80.010. Thus, appellants are not precluded from
bringing this action in our state courts under NRS 80.210. We dismiss as unpersuasive
respondents' assertion that appellants must have been doing business in Nevada because
substantial damage is alleged in their complaint. We are equally unimpressed by respondents'
argument that appellants failed to establish that they were not doing business in Nevada.
Respondents apparently fail to recognize that, as the moving party in a summary judgment
motion, they have the burden of establishing that the corporate entities were doing business
in Nevada for purposes of the qualification statute. Our review of the record indicates no such
showing.
Having failed to meet their burden, respondents were not entitled to a summary judgment.
Accordingly, the order of the district court granting summary judgment in favor of
respondents is reversed.
1

____________________

1
The Honorable Justice John C. Mowbray voluntarily recused himself from consideration of this case.
____________
101 Nev. 493, 493 (1985) State, Dep't Hwys. v. Alper
STATE OF NEVADA, on Relation of Its Department of Highways, Appellant, v. ARBY
ALPER, RUTH ALPER, UNITED OUTDOOR ADVERTISING COMPANY, E. T. LEGG
& COMPANY, CAR DISPLAYS, INC., JAMES VAN DER MEER, SUSAN ANN
PUNJUV, AMY THOMPSON, MALENA VAN DER MEER, Trustees for the Van Der
Meer Grandchildren, YOUNG ELECTRIC SIGN COMPANY, EMIL MILLER and
DORINDA MORGAN, Respondents.
No. 15051
September 24, 1985 706 P.2d 139
Appeal from judgment and order denying, in part, motion to alter or amend order denying
judgment notwithstanding the verdict or for a new trial. Eighth Judicial District, Clark
County; Carl J. Christensen, Judge.
After remand, 95 Nev. 876, 603 P.2d 1085, rehearing, remand on rehearing, 96 Nev. 925,
621 P.2d 492, and another remand, the district court submitted supplemental findings of fact,
finding that three billboards were conforming and 16 billboards remained nonconforming and
subject to removal upon payment of just compensation under the Federal Highway
Beautification Act and the State Outdoor Advertising Act, after finding before last remand
that there was no longer need or necessity for removal of the billboards.
the State Outdoor Advertising Act, after finding before last remand that there was no longer
need or necessity for removal of the billboards. Department of Highways appealed. The
Supreme Court held that: (1) area and time criteria established by the Department of
Transportation for determining whether billboards may be condemned could be given
retroactive effect and provided proper guidance in determining nature of billboards; (2)
district court acted without legislative authority in awarding witness fees of $13,133.50 in
eminent domain action, as statute limits award to $150; and (3) date of valuation of billboards
was properly found to be date of proceeding currently on appeal.
Affirmed in part; reversed in part, and remanded.
[Petition for rehearing denied June 26, 1986]
Brian McKay, Attorney General; William M. Raymond, Deputy Attorney General;
Madelyn Shipman, Deputy Attorney General, Carson City, for Appellant.
Rudiak & Larsen, Las Vegas, for Respondent Young Electric Sign Company.
Rudiak & Larsen, Las Vegas; and Kermitt L. Waters, Las Vegas, for Respondents.
Doctrine of law of the case provides that when appellate court states principle of law, that rule becomes
law of the case and is controlling both in the lower court and on subsequent appeals, as long as facts remain
substantially unchanged.
2. Highways.
Area and time criteria of the Department of Transportation used for determining whether billboards
located in areas which are zoned to commercial but actually are undeveloped for the most part are
conforming uses under the Federal Highway Beautification Act [23 U.S.C.A. 131] could be given
retroactive effect and applied to provide proper guidance in determining nature of billboards in proceeding
to condemn billboards under the Federal Act and the State Outdoor Advertising Act [NRS 410.220 et
seq.], where criteria were reasonable and related to overall objectives of the Acts, 600-foot criterion was
identical to that used by state during inquiries concerning zoned commercial areas, and other states with
similar acts had adopted similar criteria.
3. Eminent Domain.
District court acted without legislative authority in awarding witness fees of $13,133.50 in eminent
domain action, where NRS 37.190, which specifically authorizes recoupment of witness fees in eminent
domain actions, limits award to $150.
4. Eminent Domain.
Date of valuation of condemned billboards was properly ascertained to be date proceeding to determine
status of area on which each billboard is located, and thus whether it should be condemned, commenced.
NRS 37.120(1)(b).
OPINION
Per Curiam:
For the third time in just five years, and after two remands to the court below, this court
must again consider the application of the so-called Lady Bird Act to condemnation
proceedings involving billboards.
This matter began in February, 1978, when the Department of Transportation
1
condemned billboards adjacent to Interstate 15 pursuant to the Federal Highway
Beautification Act, currently codified at 23 U.S.C. 131 (1982), and the Nevada Outdoor
Advertising Act, NRS 410.220 et seq. Both statutes provide for the removal of billboards
adjacent to primary highways. Billboards located in commercial or industrial zones are
exempt from removal. The billboards at issue here are located on land zoned H-2 by Clark
County authorities.
In Alper v. State ex rel. Dep't of Hwys., 95 Nev. 876, 603 P.2d 1085 (1979) we held that a
zoning classification which permitted multiple dwellings, certain on-premises signs, public
and institutional buildings, and business establishments, was commercial or industrial for
purposes of the Nevada Advertising Control Act of 1971. Billboards in the H-2 zoning area
were thus held to be exempt from condemnation based on the wording of the zoning
ordinance.
A rehearing was then granted pursuant to NRAP 40(c)(2),
2
and thereafter in Alper v.
State ex rel. Dep't Hwys., 96 Nev. 925, 621 P.2d 492 (1980), we held that the beautification
laws should be interpreted broadly and not limited to a review of the face of the ordinance.
An inquiry must include reference to actual and contemplated land uses. If no actual
development exists or development is not planned or contemplated for the near future, then
the area is not exempt. Billboards are then subject to condemnation. In Alper, 96 Nev. at 931,
the case was remanded to the district court in order that a determination be made as to the
status of the area on which each billboard is located.
Pursuant to the 1980 Alper remand, trial commenced in 1982. The district court allowed
into evidence regulations adopted by the Department of Transportation in November, 1982,
pursuant to the federal exemption provision, 23 U.S.C. 131; subsection O.
____________________

1
At that time the department was known as the Department of Highways.

2
Rule 40 provides, in pertinent part:
The court may consider rehearings in the following circumstances:
(i) When it appears that the court has overlooked or misapprehended a material matter in the record or
otherwise, or
(ii) In such other circumstances as will promote substantial justice.
O. These regulations specify criteria for determining actual or contemplated commercial use.
An area standard denies exemption to billboards greater than 600 feet away from an existing
commercial structure. A time standard limits contemplated commercial use to a one-year
period.
The district court declined to apply these standards after declaring them arbitrary and
unreasonable. In their stead, the district court applied its own subjective criteria and found the
natural beauty adjacent to Interstate 15 already maimed by a series of man-made
objectsincluding the highway itself, the prison complex at Jean, the power and telephone
lines, wire fencing, railroad tracks, various buildings, trailers, and abandoned debris. The
lower court found the billboards to be no more unsightly, and in many instances . . . much
more sightly than any of these objects.
Believing the federal government was no longer threatening to reduce Nevada's highway
funding if the beautification legislation was not enforced, the district court determined there
was no longer a need or necessity for the removal of the billboards.
3
The court concluded
that the area where the billboards are located is a bonafide and legitimate highway oriented
commercial or industrial zone, and it thus exempted the billboards from condemnation
proceedings. Appealing the district court's denial of its motion for a judgment
notwithstanding the verdict or, in the alternative a new trial, the Department of Transportation
first contended that the district court failed to apply the law of the case, which we set forth
in our 1980 Alper opinion.
[Headnote 1]
The doctrine of the law of the case provides that when an appellate court states a principle
of law, that rule becomes the law of the case and is controlling both in the lower court and on
subsequent appeals, a long as the facts remain substantially unchanged. State Engineer v.
Curtis Park, 101 Nev. 30, 32, 692 P.2d 495, 497 (1985) citing Andolino v. State, 99 Nev.
346, 662 P.2d 631 (1983); Collins v. Union Fed. Savings & Loan, 99 Nev. 284, 662 P.2d 610
(1983) citing Lo Bue v. State ex rel. Dep't of Hwys., 92 Nev. 529, 554 P.2d 258 (1976).
This court remanded to the district court for a specific inquiry as to actual and
contemplated commercial land use for each billboard area. The state here contends that, in
spite of the rather simple task outlined for the district court, the court made findings of fact
and conclusions of law which violated the law of the case by conflicting with the specific
remand instructions of this court.
____________________

3
Even if the district court was warranted in making this determination in light of our remand instruction in
Alper, we are not convinced that this is the admitted position of the federal government. We decline to address
the current validity of the federal legislation, however.
of fact and conclusions of law which violated the law of the case by conflicting with the
specific remand instructions of this court. This does seem to be so.
The district court's characterization of the billboard area did not determine the commercial
or industrial activity (actual or contemplated) in the area of each billboard. Thus, it did not
comply with our directives as stated in the 1980 Alper opinion.
On January 31, 1985, this court remanded the case again to the district court for a
determination of the status of each area on which a billboard is located, with reference to both
actual and contemplated commercial or industrial land use. The parties were allowed to
submit supplemental authorities addressing only the court's findings. Pursuant to this remand,
the district court finally accomplished the task and submitted supplemental findings of fact on
March 26, 1985. There are nineteen billboards in question
4
and the state conceded that three
of the billboards were conforming.
5
Thus, sixteen billboards remain non-conforming and are
subject to removal upon payment of just compensation.
6

[Headnote 2]
The Department of Transportation regulations (Fifth Edition of the Department of
Transportation's Outdoor Advertising Control Manual, Second Supplement) established area
and time criteria in determining the nature of billboards located in areas which are zoned
commercial but actually are undeveloped for the most part. Respondents allege that these
criteria cannot be retroactively applied in this case and the Department of Transportation
exceeded its legislative authority.
We hold that the area and time standards adopted by the Department of Transportation
provide proper guidance in determining the nature of billboards in such areas. The standards
are reasonable and are related to the overall objectives of the federal and state Highway
Beautification Acts. We note that the 600-foot criterion is identical to that used by the state,
since 1972, during inquiries concerning unzoned commercial areas. Further, the record
reflects that other states with similar Highway Beautification Acts have adopted similar
criteria.7
____________________

4
One structure consists of two signs facing north and south (Permit Nos. 986 and 987).

5
The state conceded in the 1982 hearing that the billboard identified by Permit No. 177 was conforming
since located within the developed limits of the Hadland Nursery. Two other billboards (identified by Permit
Nos. 319 and 2507) became conforming in 1984 due to a zoning change at Sloan, Nevada. These billboards are
located within 600 feet of a commercial concession.

6
We decline to address whether a softball field is a commercial enterprise. Two billboards were located 890
feet and 894 feet from a softball field. In both cases, the 600 feet criterion was exceeded.
record reflects that other states with similar Highway Beautification Acts have adopted
similar criteria.
7

This court has held that judicial interpretation of a statute may be retroactively applied if it
is authoritative and foreseeable. Kreidel v. State, 100 Nev. 220, 678 P.2d 1157 (1984). For
the reasons elucidated above, the area and time criteria established by the Department of
Transportation may be given retroactive effect.
[Headnote 3]
The State of Nevada next argues that the district court's award of witness fees ($13,133.50)
to respondent must be reversed. NRS 37.190 specifically authorizes the recoupment of
witness fees in eminent domain actions. As the statute limits the award to $150, the district
court acted without legislative authority.
[Headnote 4]
Although the district court need not have reached the issue of valuation (because it
exempted the billboards from condemnation), it did properly ascertain the date of valuation as
December 20, 1982. This was the date of the proceeding now appealed. NRS 37.120(1)(b)
8
was correctly applied by the district court.
Accordingly, this case is remanded to the district court to enter judgment in accordance
with this opinion.
____________________

7
As testified to by Dr. Charles Frederick Floyd during trial on January 5, 1983. Dr. Floyd received A.B. and
Ph.D. degrees in economics from the University of North Carolina at Chapel Hill and was Professor of real
estate at the University of Georgia. Additionally, he has authored or co-authored books and articles dealing with
real estate and land use. Dr. Floyd served on two advisory committees related to Highway Beautification Acts
(one national committee and the other for the state of Georgia). Dr. Floyd testified that states vary on what
constitutes an actual area of commercial or industrial activity. The usual measurement is from 400 feet to 1000
feet from the activity. He stated the majority use an 800 foot criterion.

8
NRS 37.120 provides, in pertinent part:
. . .
(b) In any action commenced after April 4, 1965, in which the issue is not tried within 2 years after
the date of commencement of the action, unless the delay is caused primarily by the defendant, the right
to compensation and damages shall be deemed to have accrued at the date of service of summons or at
the date of trial, whichever results in the greater compensation and damages. As used in this paragraph,
primarily is construed to mean the last act of either party that would carry the action past 2 years.
____________
101 Nev. 499, 499 (1985) Shrader v. State
JAY FRED SHRADER, Appellant, v. THE
No. 15123
September 24, 1985 706 P.2d 834
Appeal from a judgment of conviction of two counts of unlawful sale of marijuana and
one count of maintaining a place for use or sale of marijuana; Fifth Judicial District Court,
Nye County; William P. Beko, Judge.
Defendant was convicted in the district court of two counts of unlawful sale of marijuana
and one count of maintaining place for use or sale of marijuana, and he appealed. The
Supreme Court, Young, J., held that: (1) defendant was entrapped into offenses of unlawful
sale of marijuana, and (2) evidence was insufficient to sustain conviction of maintaining
place for use or sale of marijuana.
David C. Polley, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; A. D. Demetras, District Attorney, and
Michael P. Golden, Deputy District Attorney, Tonopah, for Respondent.
1. Criminal Law.
Entrapment as matter of law exists where uncontroverted evidence shows that state furnished opportunity
for criminal conduct to person without requisite criminal intent.
2. Criminal Law.
Entrapment defense is made available to defendants not to excuse their criminal wrongdoing but as
prophylactic device designed to prevent police misconduct.
3. Criminal Law.
Police must have reasonable cause to believe that specific individual targeted for undercover operation is
predisposed to commit the crime; this requirement is inapplicable in situations in which police are
conducting, for articulable purposes, proper decoy operations in particular geographic area.
4. Criminal Law.
Defendant was entrapped as matter of law into unlawful sale of marijuana where undercover
informant, who was an acquaintance of defendant's and who allegedly had seen drugs in defendant's
apartment, approached defendant and made two purchases of marijuana from defendant after defendant
initially told informant he did not have any marijuana to sell, and where there was no evidence of
defendant's predisposition to sell marijuana before he was targeted for undercover operation.
5. Criminal Law.
Under subjective approach to defense of entrapment applicable in Nevada, affirmative nature of the
defense merely requires defendant to put forth evidence of governmental instigation;
thereafter, it is incumbent upon state to demonstrate defendant's predisposition.
to put forth evidence of governmental instigation; thereafter, it is incumbent upon state to demonstrate
defendant's predisposition.
Evidence of three instances of marijuana use at defendant's apartment were insufficient to sustain
conviction of maintaining place for use or sale of marijuana. NRS 453.316(1).
7. Statutes.
Criminal statutes must be liberally construed in favor of the accused when resolving ambiguities.
OPINION
By the Court, Young, J.:
Appellant Jay Fred Shrader was arrested and charged with two counts of unlawful sale of
marijuana (Counts I and II) and one count of maintaining a place for use or sale of marijuana
(Count III). A jury convicted Shrader on all three counts. He was sentenced to two five-year
consecutive sentences on Counts I and II and to ten years on Count III, running concurrently
with the sentences on Counts I and II. Shrader had no record of arrests or convictions before
this incident.
The two counts of unlawful sale were based upon transactions between Marcus Scott, a
confidential police informant, and Shrader. Shrader met and befriended Scott in May, 1982 at
the Joker Saloon in Tonopah, Nevada. Scott visited Shrader's apartment often to play pool
and drink beer.
In July, 1982 Scott found himself incarcerated in the Nye County jail facing two felony
counts of cheating at gaming. Scott decided to become a confidential informant and began
negotiations with Nevada authorities. Under a plea agreement executed August 17, 1982,
Scott pleaded guilty to a gross misdemeanor. Approximately one month later, Scott was
sentenced to time served, eleven days. Probation was not imposed.
Scott, in his capacity as informant, approached Shrader on August 14, 1982 and asked
Shrader where he could obtain marijuana. Scott testified that he asked Shrader about the
availability of marijuana because he had seen drugs used at Shrader's apartment.
Shrader testified that although he initially told Scott he did not have any marijuana to sell,
he relented after Scott told him he needed it to relax because of his recent stay in jail. On
August 15, 1982 Shrader let Scott have a quarter ounce of marijuana for $45.00. This
transaction was monitored by officers of the Sheriff's department who had hidden a tape
recorder on Scott.
Scott and the officers set up a second buy in September, 1982. According to Shrader, Scott
had been importuning him for marijuana for some time.
juana for some time. On the afternoon of September 15, 1982 Shrader told Scott that he did
not have anything to sell but could secure an ounce for $70.00 from someone else. Scott
apparently told Shrader that he did not want to make the buy himself because he was already
in trouble with the law.
Scott left Shrader's apartment and met with narcotics officers. He was fitted with a
transmitter so that the officers could listen to the transaction. Scott returned to Shrader's
apartment at approximately 11:30 p.m. that same night. Shrader informed him that the
marijuana could not be obtained for $70.00 but would cost $100.00. Because the officers had
supplied Scott with only $70.00 to make the buy, Scott told Shrader he would go home and
get more money. Scott left the apartment and received additional funds from one of the
officers. When Scott returned to the apartment, Shrader left with Scott's $100.00 to make the
buy. Although the officers were listening to the conversation between Scott and Shrader, they
did not attempt to follow Shrader in order to discover the source of the marijuana. Shrader
returned with the marijuana and gave it to Scott. Shrader testified that he did not make any
money on the sale. Shrader was arrested on November 2, 1982 and charged with the three
counts enumerated above.
[Headnote 1]
We first address Shrader's contention that he was entrapped as a matter of law into selling
the marijuana to Scott. Entrapment as a matter of law exists where the uncontroverted
evidence shows (1) that the state furnished an opportunity for criminal conduct (2) to a person
without the requisite criminal intent. State v. Busscher, 81 Nev. 587, 407 P.2d 715 (1965).
[Headnote 2]
The entrapment defense is made available to defendants not to excuse their criminal
wrongdoing but as a prophylactic device designed to prevent police misconduct. The
function of law enforcement is the prevention of crime and the apprehension of criminals.
Manifestly, that function does not include the manufacturing of crime. Sherman v. United
States, 356 U.S. 369, 372 (1958). By permitting conviction of only those defendants
predisposed to commit the offense, the defense focuses police attention on existing criminal
ventures.
[Headnote 3]
Although we recognize that undercover operations are often necessary to detect covert and
consensual crimes, those operations must be conducted in a manner consistent with the policy
of trapping only the unwary criminal, not the unwary innocent. See Sherman, 369 U.S. at 372.
Therefore, we hold that when the police target a specific individual for an undercover
operation, they must have reasonable cause to believe that the individual is predisposed
to commit the crime.1 See Smith v. State, 2S1 N.E.2d S03 {Ind.
they must have reasonable cause to believe that the individual is predisposed to commit the
crime.
1
See Smith v. State, 281 N.E.2d 803 (Ind. 1972) (requiring probable cause that
suspect engaged in type of criminal conduct for which trap laid). This rule is in accord with
our intimations in Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961) and In re Wright, 69
Nev. 259, 248 P.2d 1080 (1952) that the state may resort to decoys only when it has
reasonable cause to believe that the target is predisposed to commit the offense. An express
holding to this effect was unnecessary in those cases because evidence of the defendants'
predisposition precluded the application of the entrapment defense.
In Wright we rejected the defendant's claim of entrapment because there was reasonable
cause to believe not only that petitioner was a person disposed to commit the offense, but that
he had already committed a similar offense on at least one occasion. 69 Nev. at 263. We
relied on this language in Wyatt where we held that the defendant could not raise the
entrapment defense to a prosecution for performing illegal abortions because there was ample
evidence that he had performed illegal abortions before a police decoy approached him. 77
Nev. at 495. In both cases we reiterated the widely accepted principle that the mere furnishing
of an opportunity for criminal conduct does not constitute entrapment. See Wyatt, 77 Nev. at
493; Wright, 69 Nev. at 263. See also Sorrels v. United States, 287 U.S. 435, 441 (1932); Hill
v. State, 95 Nev. 327, 332, 594 P.2d 699 (1979); W. LaFave & A. Scott, Handbook on
Criminal Law 48, at 369 (1972). That opportunity, however, must be presented to one with
the requisite criminal intent. See State v. Busscher, 81 Nev. at 590.
[Headnote 4]
In applying this rule to the facts of this case, we conclude that Shrader was entrapped as a
matter of law. We are at loss to discover, as was respondent's counsel during oral argument,
any evidence in the record of Shrader's predisposition to sell marijuana before he was targeted
for an undercover operation. Scott had no knowledge of previous sales of marijuana by
Shrader, and testified that he had never asked Shrader about the availability of marijuana for
sale until the day before the first transaction in August. On the day of the September sale,
Scott testified that Shrader had marijuana at his apartment, but Shrader told him it was
not for sale.
____________________

1
This requirement is, of course, inapplicable in situations where the police are conducting for articulable
purposes proper decoy operations in a particular geographic area. Obviously, the police cannot be required to
have previous knowledge of the predispositions of persons whose identities are unknown until apprehension.
The danger of seducing innocent persons to criminal activity is minimized when the criminal seeks out the
criminal opportunity. The previous knowledge requirement is warranted, however, in situations where the origin
of the criminal intent is not so obvious, i.e. where the opportunity for criminal conduct is presented to a specific
individual.
Shrader had marijuana at his apartment, but Shrader told him it was not for sale. Shrader, at
Scott's request, had to make a special effort to obtain marijuana for Scott's use. Later that
night, Shrader left the apartment with Scott's money to make the purchase.
We view this transaction with suspicion for two reasons. First, we are puzzled by the
police officers' failure to follow Shrader to the source of the marijuana. Two officers in
separate vehicles were monitoring the transaction via an electronic transmitter. Neither officer
attempted to follow Shrader to the supplier. Secondly, Shrader testified that Scott had
suggested Shrader purchase the ounce of marijuana from Joe, Scott's supplier before his
arrest on the gaming felonies. This, coupled with the officers' failure to follow Shrader to the
source of the marijuana, leads us to question respondent's assertion that Shrader was ready
and willing to make the sales.
When questioned by defense counsel as to why Scott targeted Shrader for an undercover
operation, Scott testified that he knew marijuana was available because he had seen it used
at parties at Shrader's apartment. Although an acknowledged user of marijuana, Shrader had
no previous criminal record. Evidence of Shrader's previous possession of marijuana does not
constitute reasonable cause to believe he was a seller.
We also view with alarm Scott's testimony regarding his perception of his duties as a
confidential informant. Scott's misapprehension of the proper limits of his duties is perhaps
best exemplified by the following testimony elicited on direct examination:
Q. Okay. Prior or during your affiliation with N.D.I. being Nevada Division of
Investigation, did you receive any training or instruction?
A. Yes, I did.
Q. What did that involve?
A. It involved the approaching of a person that you thought might be dealing in
narcotics or even if you didn't think so, you would ask the person: Do you know where
I couldwhere I can find any drugs or any smoke or marijuana, so forth and so on and
then at that time they had the choice whether or not to say: Yes, I do know where you
can get some, or, I have some.
(Emphasis added.)
This testimony convinces us that the proper limits of government activity in undercover
operations must be made clear to both the police and their agents. We adopt the rule
articulated above to guide the police in future investigations and to prevent the seduction of
innocent people into a criminal career.' Wyatt, 77 Nev. at 497 quoting from People v.
Wyatt, 77 Nev. at 497 quoting from People v. Cummings, 296 P.2d 610, 616 (Cal.App. 1956).
The absence of evidence in the record that Shrader had a predisposition to sell marijuana
creates a substantial risk that the criminal intent originated in the mind of the entrapper and
not in the mind of the entrapped. Therefore, because he was entrapped as a matter of law, we
reverse Shrader's conviction on Counts I and II.
We next address Shrader's contention that the jury was incorrectly instructed that the
defendant bears the burden of proving entrapment. Although discussion of this issue is
unnecessary to our disposition of this appeal given our decision on the first issue, we address
it in an effort to guide the district courts in their trial of similar cases. Entrapment, under the
subjective approach applicable in this state,
2
encompasses two elements: (1) an opportunity
to commit a crime is presented by the state (2) to a person not predisposed to commit the act.
See Froggatt v. State, 86 Nev. 267, 467 P.2d 1011 (1970).
[Headnote 5]
Although we have previously characterized entrapment as an affirmative defense, we have
never expressly addressed the burden of proof issue. See, e.g., Bonacci v. State, 96 Nev. 894,
620 P.2d 1244 (1980) (defendant may not claim jury incorrectly instructed on affirmative
defense of entrapment where he did not object to instructions at trial); Wyatt v. State, 77 Nev.
490, 367 P.2d 104 (1961) (upholding district court's refusal to give entrapment instruction
where no substantial evidence of entrapment and stating [e]ntrapment is an affirmative
defense . . . that a defendant must prove). We now hold that the affirmative nature of the
defense merely requires the defendant to put forth evidence of governmental instigation.
Thereafter it is incumbent upon the state to demonstrate the defendant's predisposition.
Essentially, the defendant bears the burden of production on the first element, while the
prosecution subsequently bears the burden of proof on the second element. See State v.
McKinney, 501 P.2d 378, 382 (Ariz. 1972).
In United States v. Swiderski, 539 F.2d 854 (2nd Cir. 1976) the Second Circuit reiterated
its longstanding rule, first articulated by Judge Learned Hand, that the state has the burden of
proving the defendant's predisposition to commit the crime when there is evidence of a state
conceived opportunity. Id. at 857. Thus with regard to the two elements of entrapment stated
above, Judge Hand concluded: "On the first question the accused has the burden; on the
second the prosecution has it."
____________________

2
The subjective approach focuses on the origin of the criminal intent. The objective approach, on the other
hand, dismisses the defendant's state of mind as irrelevant and focuses on police misconduct. See Hill v. State,
95 Nev. 296, 330 n. 8, 594 P.2d 699 (1979); People v. Barraza, 591 P.2d 947 (Cal. 1979) (adopting objective
approach).
Judge Hand concluded: On the first question the accused has the burden; on the second the
prosecution has it. United States v. Sherman, 200 F.2d 880, 882-83 (2nd Cir. 1952) quoted
in Swiderski, 539 F.2d at 857.
We perceive in our own caselaw a process of burden shifting consonant with Judge Hand's
formula. Although we construed entrapment as an affirmative defense in Wyatt, we also
intimated that the state could resort to decoys only when it had reasonable cause to believe
that the target was predisposed to commit the offense. 77 Nev. at 494. See also In re Wright,
69 Nev. 259, 248 P.2d 1080 (1952). The evidence in Wyatt demonstrated that the state had
initiated or furnished an opportunity for criminal activity by sending an undercover agent to
Wyatt for an illegal abortion. Thus the defendant met his burden of production as to the first
element of entrapment. The burden then shifted to the state to prove that Wyatt was
predisposed to commit the offense. The state met this burden by introducing evidence that
Wyatt had performed illegal abortions on three previous occasions. Thus the second element,
the defendant's lack of predisposition, was not established. It was incumbent upon the
defendant to rebut this evidence of predisposition. Failing that, the entrapment defense was
negated.
The entrapment instruction given at Shrader's trial over defense counsel's objection
erroneously and simplistically stated that [e]ntrapment is an affirmative defense which the
defendant must prove. The jury went uninformed that Shrader bore only the burden of
production while the state ultimately bore the burden of proof. Therefore, we hold that the
district court erred in refusing to give the defendant's proposed instruction which told the jury
it must acquit Shrader unless it found he had the previous intent or purpose to commit [the]
offense . . . charged.
Shrader also challenges his conviction on Count III for opening or maintaining a place for
the purpose of unlawfully selling, giving away or using any controlled substance. NRS
453.316(1). Shrader argues that the district court erred in refusing to instruct the jury that it
could find a places of use violation only if the primary purpose of Shrader's apartment was for
drug use.
[Headnote 6]
Respondent, on the other hand, contends that furnishing or making accessible a place for
drug use is all that is required by the statute. Thus respondent argues that evidence of three
instances of marijuana use at Shrader's apartment are sufficient to support the conviction. We
disagree.
[Headnote 7]
First, we note that criminal statutes must be liberally construed in favor of the accused
when resolving ambiguities.
in favor of the accused when resolving ambiguities. Demosthenes v. Williams, 97 Nev. 611,
637 P.2d 1203 (1981). Therefore, the words opens and maintains in NRS 453.316(1)
must be liberally construed in favor of Shrader.
Second, we approve of the New York Court of Appeals decision in People v. Fiedler, 286
N.E.2d 878 (N.Y. 1972), holding that a statute similar to NRS 453.316(1) contemplat[ed]
some time span and resort to the premises by habitues with some degree of regularity. Id. at
880. The Fiedler court noted that the object of the statute was the opium den' of fact and
fiction. Id. at 879.
We conclude as a matter of law that the incidents of marijuana use cited by respondent are
too isolated to establish that Shrader opened or maintained his apartment for the purpose of
distributing or using drugs. Shrader rented his apartment for use as a residence. He shared the
apartment with a roommate. There is no evidence in the record that Shrader opened or
maintained his apartment as a profit-making marijuana den. Therefore, we reverse his
conviction on Count III.
Shrader's remaining contentions are either without merit or unnecessary to the disposition
of this appeal given our decision that he was entrapped as a matter of law and that the
evidence is insufficient to support a conviction under NRS 453.316(1). Accordingly, we
reverse Shrader's conviction on all three counts and remand with directions to set aside the
judgement of conviction and discharge the appellant.
Springer, C. J., and Mowbray and Steffen, JJ., concur.
Gunderson, J., concurring:
Although I concur in the result reached by my brethren, I feel impelled to tender two
observations of my own.
First, I note that the charges against Shrader were predicated upon allegations of sale. It
appears clear from the record that Shrader acted, not for himself, but as a purchasing agent
for Mark Edward Scott in certain of the transactions alleged.
1
Hence, quite aside from the
issue of entrapment, which the majority opinion addresses, it seems to me that the
"purchasing agent" defense to these charges was established as a matter of law.
____________________

1
The following is an excerpt from a verbatim transcript of Scott's testimony:
Q. Okay. So, it's your intention that as soon as you bring back the thirty more dollars that he can go
and get that narcotics for you, right?
A. Yes.
Q. And you do bring the thirty dollars?
A. Yes, I do.
Q. And he leaves?
A. Yes, he does.
Q. There is no doubt in your mind that he's going to buy the narcotics strictly for you at your
request, is there?
quite aside from the issue of entrapment, which the majority opinion addresses, it seems to
me that the purchasing agent defense to these charges was established as a matter of law.
See Roy v. State, 87 Nev. 517, 489 P.2d 1158 (1971).
Second, the record reflects that Scott is a person of dubious character. It appears that he
has been accustomed to deriving at least part of his livelihood through cheating at licensed
gaming establishments. Thus, in this jurisdiction, where a tourist-oriented economy requires
Nevada to maintain honest legal gaming, Scott must be deemed a highly undesirable, albeit
low-level social predator. At the time Scott decided to purchase his freedom by undertaking
to entrap his friends, Scott was in jail, awaiting trial on two felony cheating charges which
could have resulted in his imprisonment for a total of 20 years.
By contrast to Scott, it appears that appellant Shrader has no criminal history. It seems he
has been honestly and quite regularly employed. While the record indicates that Shrader has
been a marijuana user, it does not appear that he ever has been a seller or trafficker for profit.
Hence, I am puzzled how our social structure is served when an actual criminal like Scott is
released from accountability for his known depredations, in exchange for manufacturing
charges against persons like Shrader. It seems to me that Nevada's costly prison facilities
could better be utilized to protect the gaming industry from the likes of Scott.
____________________
A. No.
Q. You gave him a hundred dollars, did you not?
A. Yes.
Q. To buy some narcotics?
A. Yes.
Q. And to leaveand he left?
A. Yes.
Q. As far as you know, he was going to go buy some narcotics for you at your request?
A. Yes.
(Emphasis added.)
____________
101 Nev. 508, 508 (1985) Sheriff v. Spagnola
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. JOSEPH EDWARD
SPAGNOLA and JACKIE FAIR, Respondents.
No. 15499
September 24, 1985 706 P.2d 840
Appeal from order granting pretrial petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Robert G. Legakes, Judge.
Owner of clinic and clinic's bookkeeper were each charged by grand jury indictment with
obtaining money under false pretenses, and the district court granted their pretrial petition for
a writ of habeas corpus, and dismissed all pending charges against them. State appealed, and
the Supreme Court held that: (1) evidence was insufficient to establish probable cause against
bookkeeper; (2) evidence was sufficient to establish probable cause to believe owner of clinic
duplicated travel expenses; (3) evidence was insufficient to establish probable cause to
believe owner of clinic billed for therapy of patients not in need of those services; (4)
evidence was insufficient to establish probable cause to believe owner of clinic billed for
services never performed; (5) evidence was insufficient to establish probable cause to believe
owner of clinic overbilled for therapy sessions; and (6) indictment provided owner of clinic
with sufficient statements of acts constituting alleged offense and provided him with adequate
notice of theory of guilt.
William P. Henry and James Tufteland, Deputy District Attorneys, Clark County, for
Appellant.
Johns & Johns, Las Vegas, for Respondents.
1. Habeas Corpus.
Upon appeal from order of district court granting pretrial habeas corpus relief to criminal defendant
based on lack of probable cause, reviewing court's review is limited to question of whether district court
committed substantial error in granting relief.
Evidence presented to grand jury in support of indictment alleging bookkeeper of clinic over billed
medicaid in fraudulent manner was insufficient to establish probable cause against bookkeeper for crime of
obtaining money under false pretenses, where evidence pertained to billings submitted by clinic and not by
bookkeeper as individual, evidence only indicated bookkeeper was clinic's bookkeeper, and no evidence
was presented that bookkeeper had any special control over manner in which clinic billed medicaid or that
she knowingly assisted clinic's owner in committing any allegedly fraudulent acts.
3. Criminal Law.
Owner of clinic at time of allegedly fraudulent billings by clinic to medicaid could be bound over for trial
for any instances of fraudulent billing which state established by probable cause.
Evidence presented to grand jury was sufficient to establish probable cause to believe owner of clinic
acted with criminal intent to obtain money under false pretenses in billing medicaid for allegedly duplicate
travel expenses, where clinic had submitted billings for travel time for each patient visited on a particular
visit, where billing scale clearly stated clinic may bill for travel time based on number of miles, and where
billing scale provided separate billing procedures to compensate therapist for time spent treating patient.
Evidence presented to grand jury that clinic's therapists performed various forms of therapy on two
patients on trial basis only to determine patients' needs was insufficient to establish probable cause to
believe owner of clinic acted with criminal intent to obtain money under false pretenses in billing medicaid
for therapy of patients allegedly not in need of those services where no evidence was presented that owner
of clinic acted with criminal intent when he permitted therapists to conduct therapy on limited trial basis.
Evidence presented to grand jury that clinic's therapist had failed to enter notation on patient's medical
records indicating therapy had been performed as was apparent practice in field was insufficient to
establish probable cause to believe owner of clinic acted with criminal intent to obtain money under false
pretenses in billing medicaid for services allegedly never performed, where without more evidence district
court could have reasonably concluded clinic's therapist forgot to enter notation on these occasions.
Evidence presented to grand jury that therapists of clinic billed in manner reasonable and not
contradicted by anything in billing scale itself was insufficient to establish probable cause to believe owner
of clinic acted with criminal intent to obtain money under false pretenses in allegedly overbilling medicaid
for therapy sessions, even though billing was not in manner of medicaid's interpretation of proper billing,
where state failed to establish medicaid's interpretation of billing had ever been communicated to owner of
clinic or therapists, or that owner of clinic knew his therapists were billing according to an improper
interpretation of billing scale.
Indictment for obtaining money under false pretenses provided defendant clinic owner with sufficient
statements of acts constituting alleged offense and provided him with adequate notice of a theory of guilt
the state would rely on at trial, where indictment alleged defendant's clinic obtained money under false
pretenses by billing and obtaining payment in specific amount by means of submitting duplicate travel
expense claims with regard to certain specified patients, and where each count set forth month in which
overbilling was alleged to have occurred.
OPINION
Per Curiam:
Respondents Spagnola and Fair were each charged by a grand jury indictment with
fifty-seven counts of obtaining money under false pretenses.
jury indictment with fifty-seven counts of obtaining money under false pretenses. The district
court granted respondents' pretrial petition for a writ of habeas corpus and dismissed all
pending charges against them. The state then appealed. For the reason set forth below, we
affirm the district court's decision to dismiss all charges against respondent Fair, but we
reverse the district court's order as to respondent Spagnola on counts one to twenty-three and
affirm on the remaining counts.
At the grand jury hearing, the evidence established that respondent Joseph Spagnola was
the owner of Nevada Speech and Hearing Consultants, a speech therapy clinic in Las Vegas,
and that respondent Jackie Fair was the clinic's bookkeeper. Nevada Speech and Hearing
employed several therapists and contracted with numerous nursing homes and hospitals in the
Las Vegas area to provide their patients with speech and hearing therapy. Many of these
patients were recipients of Medicaid. In these cases, Nevada Speech and Hearing billed
Medicaid, rather than the patients themselves, for its services. All fifty-seven counts in the
indictment allege that Spagnola and Fair overbilled Medicaid in a fraudulent manner in
connection with services rendered by the clinic's therapists to several patients.
In their petition for a writ of habeas corpus, respondents contended primarily that the
evidence presented to the grand jury was not sufficient to establish probable cause that they
had committed the crimes in question, and that the indictment failed to provide them with
adequate notice of the nature of the charges. In granting respondents' habeas petition, the
district court agreed with respondents that the evidence presented to the grand jury was not
sufficient to establish probable cause and that the indictment was inartfully drawn and
very conclusionary.
[Headnote 1]
Upon appeal from an order of the district court granting pretrial habeas corpus relief to a
criminal defendant based on a lack of probable cause, this court's review is limited to the
question of whether the district court committed substantial error in granting relief. See
Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981).
[Headnote 2]
Our review of the record leads us to conclude that the charges against respondent Fair
were properly dismissed. As indicated above, all counts in the indictment allege that
Spagnola and Fair overbilled Medicaid in a fraudulent manner in connection with services
rendered by the clinic's therapists to several Medicaid recipients. The evidence presented at
the grand jury hearing, however, pertained to billings submitted by the clinic itself, and not by
Spagnola and Fair as individuals. Further, the evidence presented to the grand jury
indicated only that respondent Fair was the clinic's bookkeeper.
presented to the grand jury indicated only that respondent Fair was the clinic's bookkeeper.
The state presented no evidence that Ms. Fair had any special control over the manner in
which the clinic billed Medicaid or that she knowingly assisted the clinic's owner in
committing any allegedly fraudulent acts. Accordingly, the district court correctly concluded
that sufficient evidence had not been presented to hold Ms. Fair for trial on any of the
allegations contained in the indictment. We therefore affirm the district court's order granting
habeas relief as to all counts alleged in the indictment against respondent Fair.
[Headnote 3]
Nevertheless, because the evidence clearly established that Spagnola was the owner of the
clinic at the time of the allegedly fraudulent billings, we have no difficulty concluding that
Spagnola may be bound over for trial for any instances of fraudulent overbillings submitted
by his clinic, which the state has established probable cause to believe occurred. The only
remaining question is whether the district court committed substantial error by concluding
that the evidence presented to the grand jury was insufficient to establish probable cause that
Spagnola did obtain money under false pretenses by fraudulently overbilling Medicaid. We
conclude that the district court committed substantial error by dismissing counts one through
twenty-three against Spagnola, but we affirm its decision to dismiss the remaining thirty-four
counts.
The first twenty-three counts in the indictment allege that Spagnola's clinic fraudulently
billed Medicaid for duplicate travel expenses in numerous instances. At the grand jury
hearing, Jeannette Supera, a Medicaid investigator employed by the Nevada State Welfare
Department, was the state's primary witness concerning the proper method of billing
Medicaid for travel expenses. Ms. Supera testified that billing for travel expenses is governed
by the Nevada Relative Value Scale.
1
The scale specifically provides that a therapist can
bill Medicaid for one unit of travel time for every ten miles driven outside the therapist's
usual practice location and for 0.1 value units for every one mile driven over twenty miles.
Ms. Supera testified that when a therapist travels to a particular hospital or nursing
home, the therapist is permitted to bill for only one "unit" of travel time under the Nevada
Relative Value Scale for therapy, regardless of the number of patients treated there.
____________________

1
The Nevada Relative Value Scale is used by Medicaid and its service providers to determine proper billing
amounts in other areas as well. The scale lists various forms of speech therapy treatments and miscellaneous
expenses incurred in providing such treatments. The scale then attributes a value to each type of therapy or
expense. According to Jeannette Supera's testimony, each unit of value is worth $10.73. Depending on the type
of treatment performed, the value assigned to a particular treatment ranges from one to seven units. In certain
instances the scale delineates a specific time period in which the treatment is to take place and permits the
therapist to bill more than one value if the therapy extends over the set time period; in other instances it provides
for billing on a per visit basis, and in still other instances it is silent.
one mile driven over twenty miles. Ms. Supera testified that when a therapist travels to a
particular hospital or nursing home, the therapist is permitted to bill for only one unit of
travel time under the Nevada Relative Value Scale for therapy, regardless of the number of
patients treated there.
Supera testified, however, that in twenty-three instances, Nevada Speech and Hearing had
billed for more than one unit of travel time for therapists' trips made outside the therapists'
usual practice location. In each of these instances, the therapist had seen more than one
patient on a particular visit, and Nevada Speech and Hearing had submitted billings for one
unit of travel time for each patient seen during the visit.
In the district court proceedings below, respondents argued that the scale was ambiguous
and failed to provide adequate notice that only one travel unit could be billed per therapist
trip, despite the number of patients treated during the trip. According to respondents, a
therapist should be compensated for travel time for each patient visited and treated on a
particular trip, since a therapist deserves to be compensated for the additional time spent
away from his or her office that is occasioned by visiting and treating more than one patient
on a particular trip. Respondents asserted that the Nevada Relative Value Scale can be
reasonably interpreted to provide for travel time billing to compensate a therapist in this
manner. We conclude, however, that the scale is not as ambiguous in this regard as
respondents asserted and that the question of whether Spagnola acted with a criminal intent in
choosing to interpret the scale in this manner is a question of fact for the jury.
The scale clearly states that a clinic may bill for travel time based on the number of miles
traveled by a therapist; the scale thereby makes it clear that the therapist is to be compensated
only for the time and expenses incurred in traveling to a particular clinic, and not for time
spent away from the office in actually treating patients. Instead, as discussed below, the scale
provides for separate billing procedures to compensate the therapist for time actually spent
treating a patient. See also note 1, supra. Further, we note that Ms. Supera conducted a
computer check of all available Medicaid records and was able to ascertain that Nevada
Speech and Hearing was the only therapy clinic in Nevada which billed for more than one
unit of travel time to a particular hospital or nursing home.
[Headnote 4]
In light of the above, we conclude that the state adequately established probable cause to
believe that Spagnola was acting with a criminal intent to obtain money under false pretenses
by billing Medicaid in this manner. Accordingly, we hold that the district court committed
substantial error by concluding that probable cause was not established to hold Spagnola
for trial on counts one through twenty-three in the indictment.
probable cause was not established to hold Spagnola for trial on counts one through
twenty-three in the indictment.
[Headnote 5]
We agree, however, with the district court's decision to grant the habeas petition regarding
the remaining thirty-four charges. Counts twenty-four and twenty-five allege that Spagnola's
clinic fraudulently overbilled for therapy services conducted on two patients who were not in
need of those services. The evidence presented at the grand jury hearing indicated that the
clinic's therapists performed various forms of therapy on these two patients on a trial basis
only, to determine the patients' needs. Although it was later determined that these two
patients were not in need of therapy, there was no evidence presented establishing that
Spagnola acted with a criminal intent when he permitted his therapists to conduct the therapy
on a limited trial basis. Accordingly, we conclude that the district court did not commit
substantial error in dismissing these two charges.
[Headnote 6]
Counts thirty-one and thirty-two allege that Spagnola's clinic billed for services that were
simply never performed on a patient. In support of these two charges, the state presented
evidence that the clinic's therapist had failed to enter a notation on the patient's medical
records indicating that therapy had been performed as is the apparent practice in the field.
Without more evidence, however, the district court could have reasonably concluded that the
clinic's therapist simply forgot to enter a notation on these two occasions. We therefore
conclude that the district court did not commit substantial error by granting Spagnola habeas
relief with regard to these two charges.
The remaining thirty counts in the indictment allege that Spagnola overbilled for
aphasia/voice therapy services rendered to Medicaid patients. Once again, the state's case in
this regard centers on its interpretation of the Nevada Relative Value Scale.
As indicated above, the scale in some instances provides that billing shall be based upon
the amount of time spent with a patient, and in other instances the scale is silent regarding
time. See note 1, supra. Thus, for basic speech or language therapy, the scale assigns an initial
unit of value for the first thirty minutes spent with a patient, and assigns a second billing unit
of less value for each additional fifteen minutes spent with a patient. For aphasia/voice
therapy, however, the scale provides for only one billing unit of value, and fails to indicate
whether the unit is limited to a particular time period, or whether only one unit is to be billed
no matter how long a therapy session with a patient lasts.
At the grand jury hearing, Jeannette Supera testified that she believed the scale only
permitted a therapist to bill one unit regardless of how long the therapist remained with the
patient. On the other hand, several therapists who were previously employed by Nevada
Speech and Hearing testified that they understood a unit to constitute a 20-30 minute period
of time. Accordingly, when the therapists submitted their billings, they would charge for
more than one unit of value if they had spent at least two twenty to thirty minute blocks of
time with their patients.
[Headnote 7]
This latter interpretation of the scale is not an unreasonable one and is not contradicted by
anything contained in the scale itself. Moreover, the state failed to establish that Medicaid's
interpretation of the scale had ever been communicated to Spagnola or the clinic's therapists,
or that Spagnola knew that his therapists were billing according to an improper interpretation
of the scale. Accordingly, we cannot conclude that the district court committed substantial
error by finding that the evidence presented to the grand jury was insufficient to establish
probable cause as to the allegations of overbilling contained in the thirty counts in question.
Finally, we turn to the question of whether the allegations contained in the indictment were
sufficient to apprise Spagnola of the nature of the charges against him. Because we have
concluded that the district court did not commit substantial error by dismissing counts
twenty-four through fifty-seven, our review of the sufficiency of the indictment will be
limited to counts one through twenty-three.
In Simpson v. District Court, 88 Nev. 654, 659, 503 P.2d 1225, 1229 (1972), this court
held that a charging document should provide a statement of the acts constituting the offense
in ordinary and concise language, and in such manner as to enable a person of common
understanding to know what is intended, quoting State v. McMahan, 65 P.2d 156, 159-60
(Idaho 1937). The charging document should also contain, when possible, a description of the
means by which the defendant committed the offense. See NRS 173.075(2). Finally, although
we have held that the state is not required to allege the precise date of an offense in a charging
document where the date is not an essential element of the offense, we have nevertheless
indicated that the defendant should be apprised of the general time period in which the
offense occurred to enable him to adequately defend against the charge. See Cunningham v.
State, 100 Nev. 396, 683 P.2d 500 (1984).
[Headnote 8]
Counts one through twenty-three in the indictment alleged that Spagnola's clinic, as a
provider of medical care and as a contractor with the State of Nevada, obtained money
under false pretenses from the State of Nevada with the intent to defraud, by billing and
obtaining payment in a specific amount by means of submitting duplicate travel expense
claims with regard to certain specified patients.
Spagnola's clinic, as a provider of medical care and as a contractor with the State of Nevada,
obtained money under false pretenses from the State of Nevada with the intent to defraud, by
billing and obtaining payment in a specific amount by means of submitting duplicate travel
expense claims with regard to certain specified patients. Additionally, each count sets forth
the month in which the overbilling is alleged to have occurred. While the indictment arguably
could have been more specific concerning the dates on which the alleged overbilling
occurred, we are confident that Spagnola will be able to ascertain these dates with little effort
and will therefore be able to prepare adequately his defense to these charges. See generally
Cunningham v. State, supra. In sum, we believe that the indictment provides Spagnola with a
sufficient statement of the acts constituting the alleged offenses and provides him with
adequate notice of the theory of guilt the state will rely on at his trial. We therefore hold that
the district court erred by concluding that the indictment was insufficient.
2

Accordingly, with regard to respondent Spagnola's case, we hereby reverse and remand
this matter to the district court for further proceedings consistent with this opinion. We affirm
the order of the district court in all other respects.
____________________

2
We note that Spagnola also raised several additional issues in a motion to dismiss in the district court at the
same approximate time that he filed the petition for a writ of habeas corpus under consideration herein.
However, the district court specifically declined to rule on these contentions in light of its decision to grant relief
on the above two grounds. Accordingly, we believe it would be premature for this court to consider these
contentions at this time, and we therefore decline to do so.
____________
101 Nev. 515, 515 (1985) Otis Elevator Co. v. Reid
OTIS ELEVATOR COMPANY, Appellant, v.
RICHARD E. REID, Respondent.
No. 15767
September 24, 1985 706 P.2d 1378
Appeal from a judgment entered on a jury verdict for damages in a personal injury action;
Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Elevator passenger brought action against company which manufactured and exclusively
maintained elevator for injuries sustained after elevator's overspeed safety switch tripped and
caused elevator to stop two to three feet above second floor. The district court entered
judgment in favor of passenger, and company appealed. The Supreme Court held that: (1)
under doctrine of res ipsa loquitur, passenger did not have to show that it was more
probable than not that his injuries resulted from company's breach of duty; {2) failure of
company to take affirmative steps to discover and correct cause of frequent tripping of
overspeed switch constituted negligent maintenance of elevator; {3) refusal to instruct
jury that personal injuries awards were exempt from income taxation was not an abuse of
discretion; and {4) undisclosed expert witness was not precluded from providing rebuttal
testimony.
of res ipsa loquitur, passenger did not have to show that it was more probable than not that
his injuries resulted from company's breach of duty; (2) failure of company to take affirmative
steps to discover and correct cause of frequent tripping of overspeed switch constituted
negligent maintenance of elevator; (3) refusal to instruct jury that personal injuries awards
were exempt from income taxation was not an abuse of discretion; and (4) undisclosed expert
witness was not precluded from providing rebuttal testimony.
Affirmed.
Beasley, Hamilton & Holden, Reno; Lionel, Sawyer & Collins and David N. Frederick,
Las Vegas, for Appellant.
Warren W. Goedert, Reno, for Respondent.
1. Negligence.
Res ipsa inference of negligence is permitted where one entity is shown to be in exclusive control of
instrumentality causing harm, accident is one that does not ordinarily occur in absence of negligence, and
defendant is in better position to explain cause of accident.
2. Negligence.
Under doctrine of res ipsa loquitur, proof of exclusive control of instrumentality causing harm substitutes
for proof of specific act constituting breach of duty, where accident is one that does not ordinarily occur in
the absence of negligence, and defendant is in better position than plaintiff to explain cause of accident.
3. Carriers.
Under doctrine of res ipsa loquitur, elevator passenger did not have to show that it was more probable
than not that his injuries sustained in elevator accident resulted from breach of duty by company which
manufactured and exclusively maintained elevator, where accident was one that did not ordinarily occur in
the absence of negligence, and company was in better position to explain cause of accident.
4. Carriers.
Failure of company which manufactured and exclusively maintained elevator to take affirmative steps to
discover and correct cause of frequent tripping of overspeed switch for elevator constituted negligent
maintenance of elevator.
5. Carriers.
Under doctrine of res ipsa loquitur, fact that number of nonnegligent causes could have caused frequent
tripping of overspeed switch of elevator did not excuse company which manufactured and exclusively
maintained elevator from liability for injuries sustained by passenger after overspeed safety switch of
elevator tripped, in that passenger testified elevator descended faster than normal before coming to sudden
halt, other witness testified that similar incident occurred two to three months before passenger's accident
when witness was riding in elevator, and company presented no evidence to indicate that any of the
nonnegligent possibilities caused switch to trip.
6. Courts.
Nevada Supreme Court is not bound to apply decision of United States Supreme Court expressly
predicated on federal law to claims arising under state law.
States Supreme Court expressly predicated on federal law to claims arising under state law.
7. Damages.
Instructions that personal injury awards are exempt from income tax are appropriate only in special
circumstances where likelihood that jury will consider tax consequences of its award is magnified by
discussion of tax-related issues during the trial; declining to follow Scallon v. Hopper, 58 N.C.App. 551,
293 S.E.2d 843; Norfolk & Western R. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689.
8. Damages.
Refusal to instruct jury that personal injury awards were exempt from income taxation did not constitute
abuse of discretion, in that tax consequences of damage award were never discussed in presence of jury.
Undisclosed expert witness, whom district court precluded defendant from deposing based on assertions
of plaintiff's counsel that witness would not be used at trial, nevertheless could provide rebuttal testimony,
where defendant supplied plaintiff with name and report of defendant's expert witness only one week
before trial, such report did not indicate fully nature of defense expert's expected testimony, and plaintiff's
counsel had expressly reserved right to call plaintiff's expert witness in rebuttal. NRCP 26(b)(4).
10. Jury.
District court was under no obligation to remove, sua sponte, district court judge from jury panel, even
though there were inherent risks that judge juror would interpret law for and have undue influence over his
fellow jurors. NRS 16.050.
OPINION
Per Curiam:
This is an appeal from a judgment entered on a jury verdict which awarded respondent
$317,500.00 in damages for injuries sustained in an elevator accident.
THE FACTS
On October 14, 1980, respondent Richard Reid was riding in an elevator manufactured and
exclusively maintained by appellant Otis Elevator Company (Otis) when the elevator's
overspeed safety switch tripped, causing the elevator to stop two to three feet above the
second floor.
Reid testified that he entered the elevator from the fourth floor in order to get to the first
floor. After the elevator doors closed, the elevator jumped up and down and then descended
rapidly. When the overspeed safety switch tripped, the resulting abrupt stop caused Reid to
strike his left cheek against his left knee.
Otis' maintenance records indicated that the overspeed switch had engaged on four
previous occasions in 1975, 1976, 1978 and 1979.
1979. After each incident, except for the one in 1976, Otis checked the elevator by resetting
the switch and running the elevator up and down. In 1976 the motor was also checked and
found in need of adjustment. The exact cause of these incidents was never determined nor
was the problem corrected.
At trial, medical experts testified that the elevator accident aggravated Reid's preexisting
back and knee injuries. A few days after the accident, Reid was hospitalized for a week and
put into traction to relieve his back pain. Reid never returned to work after his hospital stay.
Otis' expert witness, Walter Figiel, testified that Reid was subjected to force equivalent to
stepping off a six-inch step when the overspeed switch triggered. In rebuttal, Reid's expert,
Lindley Manning, testified that Reid was subjected to much greater force because he did not
anticipate the stop.
The district court instructed the jury on the doctrines of negligence and res ipsa loquitur.
The jury returned a verdict for Reid awarding him $317,500.00 in damages for medical
expenses, pain and suffering, and lost income. From this verdict, Otis appeals.
RES IPSA LOQUITUR INSTRUCTION
The instruction given on the doctrine of res ipsa loquitur by the district court is identical to
an instruction sanctioned by this court as a correct statement of the [res ipsa loquitur]
standard announced in Bialer v. St. Mary's Hospital, 83 Nev. 241, 427 P.2d 957 (1967).
1
American Elevator Co. v. Briscoe, 93 Nev.
____________________

1
The instruction read:
Plaintiff claims that there was an accidental occurrence; defendants deny it. If you should find that as
claimed by the plaintiff there was an accidental occurrence and the plaintiff was injured thereby, then you
are instructed as follows:
It is a rule of law that negligence may be established without proof of specific acts or omissions. This
is based on a special doctrine of the law which may be applied if you find from the evidence the
following:
First: The fact that some certain instrumentality by which injury to the plaintiff was proximately
caused, was in the possession and under the exclusive control of the defendants at the time the cause of
injury was set in motion; it appearing on the face of the event that the injury was caused by some act or
omission incident to defendants' management.
Second: The fact that the accident was one of such nature as does not happen in the ordinary course
of things, if those who have control of the instrumentality use ordinary care.
Third: The fact that the circumstances surrounding the causing of the accident was such that the
plaintiff is not in a position to know what specific conduct was the cause, whereas the ones in charge of
the instrumentality may reasonably be expected to know and be able to explain how the accident was
caused, or at least be able to show that no failure of duty on their part was a cause.
665, 668, 572 P.2d 534 (1977). Nonetheless, Otis contends that the instruction should have
included the following language from the Briscoe opinion:
Res ipsa loquitur is a balancing doctrine, and while the plaintiff need not show the
exact cause of an injury, he must at least show that it is more probable than not that the
injury resulted from the defendant's breach of duty.
Id. at 669.
Without this language, Otis argues, the res ipsa instruction given by the court failed to
convey Reid's burden of proof, enabling the jury to find for him on insufficient evidence. We
address the allegation of instructional error and the claim of insufficient evidence separately
because we conclude that the evidence is sufficient to support a finding of negligence even
without benefit of a res ipsa inference of breach of duty.
[Headnotes 1, 2]
A res ipsa inference of negligence is permitted when one entity is shown to be in exclusive
control of the instrumentality causing harm, where the accident is one that does not ordinarily
occur in the absence of negligence, and where the defendant is in a better position to explain
the cause of the accident. Proof of exclusive control, the first element listed above, substitutes
for proof of the specific act constituting the breach when the latter two elements are also
satisfied. See Hospital Ass'n v. Gaffney, 64 Nev. 225, 233, 180 P.2d 594 (1947); Hampton v.
United States, 121 F.Supp. 303, 305 (D.Nev. 1954). In Briscoe we were addressing the issue
of whether the defendant, American Elevator, was in exclusive control of the elevator. Thus
we concluded that the plaintiff had to prove that the elevator fall was caused by American
Elevator's breach, and not some other entity's. The plaintiff met this burden by presenting
evidence that American Elevator had exclusively maintained the elevator for a number of
years before the accident.
[Headnote 3]
The res ipsa instruction given by the district court correctly stated the doctrine's exclusive
control requirement. The additional language from the Briscoe opinion was not only
unnecessary, but also, taken out of context, would have served only to confuse the jury. The
district court did not err, therefore, in refusing Otis' requested addition.
SUFFICIENCY OF THE EVIDENCE
Otis contends that the evidence was insufficient for the jury to find that Otis' negligence
more probably than not caused Reid's injuries. Although Otis' expert testified to a number of
possible causes for the tripping of the overspeed switch,2 we conclude that substantial
evidence supports a finding that the switch engaged because the elevator oversped.
causes for the tripping of the overspeed switch,
2
we conclude that substantial evidence
supports a finding that the switch engaged because the elevator oversped.
Otis' assertion that there is no evidentiary basis from which the jury could find that the
elevator oversped is without foundation. Reid testified that the elevator descended faster than
normal before coming to a sudden halt. Another witness, Terry Staples, testified that a similar
incident occurred two to three months before Reid's accident, when Staples was riding in the
elevator.
Otis' own maintenance records indicate that the switch engaged on four previous
occasions. Otis' response to these repeated malfunctions was to reset the switch and run the
elevator up and down a few times. Otis failed to take affirmative steps to discover the source
of the malfunctions. This conduct, in our view, amounts to a clear showing of negligence
apart from the doctrine of res ipsa loquitur. In a case on strikingly similar facts, a federal
court upheld a finding of negligence where the defendant failed to show why it could not
locate the cause of the problem:
The jury must have concluded that three times is too much, once perhaps, twice
maybe, but certainly no for the third time. Otis knew of the specific phenomenon. It did
not remedy it the first time. It did not remedy it the second time. That, the jury could
infer, shows a failure to exercise ordinary prudence in making the repair. Indeed, in
many ways, the expertise of Otis may have convicted it in the jury's mind more by
reason of this unexplained triple occurrence that had Robinson been able to prove the
absence or defect of a particular screw or resistor, relay, vacuum tube or insulator.
Proof would have had to come from an Otis employee. Otis was hired because it knew
elevators. The jury may have reasoned that until Otis could come in and identify the
cause (or all possible causes) and then show why this could not reasonably have been
discovered, the failure of the expert to locate and correct the source of trouble showed
neglect in the performance of the work in which it claimed pre-eminent competence.
Otis Elevator Company v. Robinson, 287 F.2d 62, 65-66 (5th Cir. 1961).
____________________

2
If the elevator was not speeding, the switch could have been triggered by any of the following:
1. Manual tripping of the switch.
2. Jumping up and down in the elevator.
3. Improper setting of the switch.
4. Pushing the red emergency button.
5. An electrical power surge.
[Headnote 4]
Otis' failure to use reasonable care to discover the cause of the tripping of the overspeed
switch or to explain why it could not locate the source of the problem supports a finding of
negligent maintenance by the jury. Although [n]o direct evidence of any act of negligence by
Otis was introduced . . . circumstantial evidence of sufficient probative force may permit a
jury to infer negligence. Rogers v. Dorchester Associates, 347 N.Y.S.2d 22, 26 (1973). The
jury could have inferred negligence from Otis' failure to discover and correct the cause of the
frequent tripping of the overspeed switch.
[Headnote 5]
The fact that a number of non-negligent causes could have caused the incidents does not
excuse Otis from liability. This is not a case where there are two or more equally probable
explanations for an accident, some attributable to negligence and others not, such that a jury
could not find the negligent cause more probably than not caused the accident. See
Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 448 P.2d 46 (1968), cert denied, 395 U.S.
910 (1969). Reid's and Staples' testimony provided the basis for an inference that the elevator
oversped. Otis presented no evidence to indicate that any of the non-negligent possibilities
caused the switch to trip. The negligent and non-negligent explanations, therefore, were not
equally probable. As we stated in Briscoe, the plaintiff is not equally obligated to establish
exclusive control in the defendant with respect to any possible cause of the accident before
permitting the application of res ipsa loquitur. 93 Nev. at 670. We conclude, therefore, that
an inference of negligent maintenance is supported by substantial evidence under either the
doctrine of res ipsa loquitur or ordinary negligence.
TAX EXEMPTION INSTRUCTION
Otis contends it was reversible error for the district court to refuse to instruct the jury that
personal injury awards are exempt from the income tax. We disagree.
[Headnote 6]
Jurisdictions which have considered the propriety of these instructions are divided into
three groups. The majority prohibit tax instructions under any circumstances. See, e.g.,
Scallon v. Hooper, 293 S.E.2d 843 (N.C.App. 1982) (adopting majority rule; error to instruct
that wrongful death award exempt from taxation). The minority view, exemplified by the
United States Supreme Court decision in Norfolk & Western R. Co. v. Liepelt, 444 U.S. 490
(1980), requires trial courts to give the instruction upon request of counsel.3 In a few
jurisdictions, the instruction may be given at the discretion of trial court. See generally
Annot., 16 A.L.R. 4th 5S9 {19S2).
upon request of counsel.
3
In a few jurisdictions, the instruction may be given at the
discretion of trial court. See generally Annot., 16 A.L.R. 4th 589 (1982).
In determining whether a tax exemption instruction is appropriate under the latter rule,
other jurisdictions have focused on whether the jury has been exposed to the issue of taxes
during trial, either by the evidence or by comments by counsel. See, e.g., Bernier v. Boston
Edison Co., 403 N.E.2d 391 (Mass. 1980); Griffin v. General Motors Corp., 403 N.E.2d 402
(Mass. 1980). We conclude that tax exemption instructions are appropriate only as curative
devices designed to eliminate any prejudice resulting from the jury's exposure to tax-related
issues at trial. Our review of the record here convinces us that the issue of taxes was not
brought to the jury's attention. We recognize that some tax-conscious juries are likely to
inflate damage awards in their ignorance of laws exempting these awards from the income
tax. See Liepelt, 444 U.S. at 496. We conclude, however, that the confusion and
complications that would arise if tax instructions were permitted as a matter of right outweigh
the benefit of obtaining greater precision in calculating damage awards.
[Headnotes 7, 8]
Therefore, we hold that tax instructions are appropriate only in special circumstances when
the likelihood that the jury will consider tax consequences is magnified by discussion of
tax-related issues during the trial. Since the tax consequences of Reid's award were never
discussed in the presence of the jury, the district court did not abuse its discretion in refusing
Otis' proposed instruction.
FAILURE TO DISCLOSE AN EXPERT WITNESS
The district court allowed Reid's expert witness, Lindley Manning, to testify despite
pretrial statements by Reid's counsel that Manning would not testify. The district court
precluded Otis from deposing Manning or otherwise discovering Manning's opinions based
on these assertions that he would not be used at trial. Reid's counsel did, however, expressly
reserve the right to call Manning in rebuttal.
After Otis' expert, Walter Figiel, testified that the force Reid was subjected to in the
elevator stop was equivalent to stepping off a six-inch step, Reid's counsel called Manning to
the stand for rebuttal testimony.
____________________

3
The Liepelt decision was expressly predicated on federal law. 444 U.S. at 493. We are not bound, therefore,
to apply the Liepelt rule to claims arising under state law. See Newlin v. Foresman, 432 N.E.2d 319 (Ill.App.
1982).
rebuttal testimony. Manning testified, over objection, that the force Reid was subjected to was
much greater than Figiel had indicated because Reid had not anticipated the stop.
Ordinarily, the names of expert witnesses and their expected testimony must be disclosed
to an opposing party before trial. NRCP 26(b)(4). The rule does not state what sanction is to
be employed for the failure to comply with the disclosure requirements. Otis contends that the
district court abused its discretion in permitting an undisclosed expert witness to testify,
citing Smith v. Ford Motor Co., 626 F.2d 784 (10th Cir. 1980), cert. denied, 450 U.S. 918
(1981). In Smith the Tenth Circuit held that the trial court had abused its discretion by
allowing the plaintiff's medical expert to testify even though the plaintiff had failed to
disclose the substance of the expert's testimony when specifically ordered to do so.
4
Reasoning that effective cross-examination of an expert witness requires advance
preparation, the Smith court concluded that the defendant had been prejudiced by the
testimony. Id. at 793.
[Headnote 9]
We conclude, however, that the Smith analysis is inapplicable in this particular setting.
Manning was not called to support the case in chief but as a rebuttal witness. Otis argues that
Reid should have known it would be necessary to call Manning to rebut Figiel's testimony.
We disagree. Otis supplied Reid with Figiel's name and report only one week before trial. The
report did not indicate fully the nature of Figiel's expected testimony, stating only that the
overspeed switch stop [f]or the average normal person . . . is universally acceptable and
tolerable. The report failed to disclose Figiel's opinion that the stop was akin to stepping off
a six-inch step. This testimony was certainly more damaging than the statement contained in
the report. Reid's counsel could have honestly concluded that it would not be necessary to call
Manning to testify. We also note that Reid's counsel expressly reserved the right to call
Manning in rebuttal, thus negating any inference of bad faith.
CONCLUSION
[Headnote 10]
There was sufficient evidence to support a finding that Reid's injuries were the result of
Otis' failure to properly maintain the elevator.
____________________

4
NRCP 26(b)(4) is identical to the federal rule examined in Smith.
elevator. Otis' other assignments of error are also without merit. Accordingly, we affirm the
judgment for Reid.
5

____________________

5
Otis also argues that the district court should have sua sponte removed district court Judge William Forman
from the jury panel. We have previously held, however, that it is the Legislature's prerogative to decide
questions of per se exclusion for implied bias. State v. Lewis, 50 Nev. 212, 224, 255 P. 1002 (1927). The
Legislature enumerated the grounds upon which a challenge for implied bias may be made in NRS 16.050.
Judges are not listed as a category subject to per se exclusion in that statute. Although we agree with Otis that
there are inherent risks in such a practice that warrant its prohibition, i.e., that the judge-juror will interpret the
law for and have undue influence over his fellow jurors, we defer to the legislative will.
____________
101 Nev. 524, 524 (1985) Van Cleave v. Gamboni Construction
VIRGINIA VAN CLEAVE, Appellant, v. GAMBONI
CONSTRUCTION COMPANY, Respondent.
No. 15820
September 24, 1985 706 P.2d 845
Appeal from an order granting summary judgment in favor of respondent. Second Judicial
Passenger brought action against an employer for injuries sustained in one car accident in
which employer's employee was the driver. The district court entered summary judgment in
favor of employer, and passenger appealed. The Supreme Court, 665 P.2d 250, reversed and
remanded. On remand, the district court entered summary judgment again in favor of
employer, and passenger appealed. The Supreme Court held that under Uniform Contribution
Among Tortfeasors Act, release document executed by passenger and employee did not
discharge employer, whose liability was predicated solely on theory of respondeat superior,
where release document included typewritten provision apparently intended to expressly
reserve passenger's claims against any other parties.
Echeverria, Osborne & Jenkins, and Geoffrey White, Reno, for Appellant.
Barker, Gillock & Perry, and Ken Bick, Reno, for Respondent.
1. Contribution.
Uniform Contribution Among Tortfeasors Act, NRS 17.225 et seq., applies to vicarious liability
situations involving an employer and employee. NRS 17.225.
2. Indemnity.
Nothing in indemnity provision of Uniform Contribution Among Tortfeasors Act, NRS 17.265,
precludes application of Act to situations involving vicarious liability.
3. Indemnity.
Under Uniform Contribution Among Tortfeasors Act, NRS 17.265, providing that provisions of Act do
not impair any right of indemnity under existing law, vicariously liable employer has a right to indemnity,
rather than contribution, against its negligent employee.
4. Release.
Under Uniform Contribution Among Tortfeasors Act, NRS 17.245, release document executed by
passenger and negligent employee did not discharge employer, whose liability was predicated solely on
theory of respondeat superior, where release document included typewritten provision apparently intended
to expressly reserve motorist's claims against any other parties for injuries sustained in one car accident in
which employer's employee was the driver.
OPINION
Per Curiam:
For the second time, we are asked to review the lower court's order granting summary
judgment in this case; one opinion has resulted so far, Van Cleave v. Gamboni Constr., 99
Nev. 544, 665 P.2d 250 (1983) (Gamboni I). In this appeal, appellant Virginia Van Cleave
contends that a harsh rule of the common law, i.e. that the release of an employee
automatically releases the vicariously liable employer, was abrogated in Nevada by the
adoption of the Uniform Contribution Among Tortfeasors Act (the Uniform Act). We agree.
Because the district court determined that the Uniform Act does not apply to a release
affecting vicarious liability, its order granting summary judgment in favor of respondent
Gamboni Construction Company is reversed.
Facts and Procedural History
The facts in this case, as presented in Gamboni I, are not in dispute. Van Cleave was
rendered a paraplegic as a result of injuries she sustained in a one-car automobile accident in
Reno, Nevada, on May 26, 1979. Mark Alimisis, the operator of the car, lost control of the
vehicle causing the car to leave the roadway and overturn. Alimisis was allegedly within the
scope of his employment with Gamboni Construction Company at the time of the accident.
After filing suit against Alimisis, and other fictitious defendants, Van Cleave settled her
action against Alimisis for $50,000. The terms of the printed release form document they
executed included a typewritten provision apparently intended to expressly reserve Van
Cleave's claims against any other parties.
It is expressly agreed that this does not release anyone other than Mark Alimisis, and all
rights against the manufacturer of the vehicle and its component parts, Washoe County
and anyone else, are reserved.
(Emphasis added.)
After the settlement with Alimisis, Van Cleave amended her complaint, naming Gamboni
Construction Company as a defendant. The allegations against Gamboni were limited to
liability under the doctrine of respondeat superior, on the basis that Alimisis was within the
scope of his employment at the time of the accident.
Gamboni subsequently filed a motion for summary judgment, arguing that a release of its
employee releases it from any liability, based on the doctrine of respondeat superior. The
district court determined that as a matter of common law, a release in favor of a negligent
employee also releases the employer when the employer's liability is predicated solely on
respondeat superior. 99 Nev. at 546. The court concluded that the Uniform Act did not
apply to an employer-employee relationship where the sole basis of the employer's liability
was respondeat superior. Id. The district court then granted summary judgment in favor of
Gamboni.
In Gamboni I, we reversed the district court's order granting summary judgment in favor of
Gamboni, primarily because the lower court had not construed the document before it granted
the motion. We remanded the matter to the lower court because material questions of fact
remain as to whether the agreement in question was a release or a covenant not to sue. 99
Nev. at 548.
After the remand, Gamboni made a motion for summary judgment arguing that as a matter
of law, the document, whether construed as a release or a covenant not to sue, is not subject
to the Uniform Act, and thus discharges Gamboni from any derivative liability. For the
second time, the lower court granted Gamboni's motion for summary judgement. In its order,
the lower court determined that the document is a release and discharges Gamboni, by its
plain language, and by law, by virtue of the derivative nature of the claimed liability of
Gamboni. the court noted that Van Cleave had offered nothing to allow the court to construe
the document otherwise, and that even if it were a covenant not to sue, the document would
innure to the benefit of Gamboni. Once again, Van Cleave appeals the order granting
summary judgment in favor of Gamboni.
The issue before us is whether the district court erred in granting summary judgment for
Gamboni. Summary judgment is proper only where the moving party has shown that there is
no genuine issue as to any material fact, and that it is entitled to a judgment as a matter of
law.
judgment as a matter of law. NRCP 56(c). Short v. Hotel Riviera, Inc., 79 Nev. 94, 103, 378
P.2d 979, 984 (1963). In considering this issue in the context of Van Cleave's appeal, we
must decide whether the Uniform Act applies to vicarious liability situations, so that the
release of an employee does not release a vicariously liable employer, unless the terms of the
release document so provide.
Discussion
In 1973, the Nevada Legislature adopted the 1955 revised version of the Uniform Act.
1
NRS 17.225 of the Uniform Act states that the Uniform Act applies where two or more
persons become jointly or severally liable in tort for the same injury to person or property.
Courts interpreting this language have had no difficulty applying the Uniform Act to
vicarious liability situations involving an employer and employee.
[Headnote 1]
For example, the Alaska Supreme Court has held that a covenant not to sue a servant did
not extinguish the wholly derivative liability of a master under the 1955 Uniform Act.
2
Alaska Airlines, Inc. v.
____________________

1
The 1955 Revised Uniform Act was drafted to supersede the 1939 Uniform Act. The Commissioners'
Prefatory Note to the 1955 Revised Uniform Act states:
The proposed Act here submitted would supersede the 1939 Uniform Act, would reconcile the serious
variations which exist and, if generally adopted would eliminate the presently existing confusing.
12. U.L.A. 60 (1975).

2
The 1939 Uniform Act applied only to joint tortfeasors, and did not include the more carefully drafted
language of the 1955 Revised Act. Nonetheless, courts interpreting that language have had no problem applying
the provisions of the 1939 Uniform Act to vicarious liability situations. For example, the Idaho Supreme Court
considered a case nearly identical to Van Cleave's and held that joint tortfeasors has a broad meaning under
the Uniform Act, and thus, the master-servant relationship is sufficient to make the parties joint tortfeasors
within the meaning and purposes of the 1939 Uniform Act. Holve v. Draper, 505 P.2d 1265, 1267 (Idaho 1973).
In reaching its decision, the court considered the commissioner's comments to release provision of the 1939 Act:
It was thought wise to obviate what must frequently be considered a technical pitfall by an injured person
who releases one of two or more joint tortfeasors for a certain sum, presumably approximately the
released person's share of the damage, intending to pursue his claim against the others.
505 P.2d at 1268 (citations omitted). The Rhode Island Supreme Court held that the 1939 Act applies to
vicarious liability as the master and servant in that case were joint tortfeasors because concededly upon the
occurrence of the tort, they became jointly or severally liable to plaintiff. That being the case the release given
by the plaintiff, which by its terms related only to her
lines, Inc. v. Sweat, 568 P.2d 916 (Alaska 1977). That court recognized that [i]t may be that
[the employer] is not technically a tort-feasor,' but is one of two or more liable in tort for the
same injury.' 568 P.2d at 930. Similarly, in addressing a settlement and release with a
master, rather than with a servant as in Van Cleave's case, the Delaware Supreme Court
reasoned that [t]he point is that both [the employer] and the [employee] are (at least)
severally' liable for the same injury to plaintiff. Therefore, the Uniform Contribution Among
Tort-Feasors [sic] Act applies. We so hold. Blackshear v. Clark, 391 A.2d 747, 778 (Del.
1978). We agree with these courts and hold that because the employer Gamboni, and its
employee, Alimisis are both allegedly liable for Van Cleave's injury, the Uniform Act applies.
Gamboni argues that the indemnity language of the Uniform Act shows an intent by the
drafters to exclude indemnity actions from the protections of the Uniform Act. We disagree.
The Uniform Act states that its provisions do not impair any right of indemnity under
existing law. Where one tortfeasor is entitled to indemnity from another, the right of the
indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not
entitled to contribution from the obligee for any portion of is indemnity obligation. NRS
17.265. The second sentence in the indemnity section of the Uniform Act was added by the
drafters in the 1955 Revised Version. The drafters explain this change by indicating that the
first part of this provision . . . apparently left it uncertain whether there could be contribution
in any indemnity situation. . . . It seems clear that there should be no contribution. 12 U.L.A.
66.
Indeed, the indemnity provision of the Uniform Act has, for whatever reason, created some
confusion for at least one court in considering the Uniform Act's application to situations
involving vicarious liability. Relying on this indemnity language, the Tennessee Supreme
Court concluded that the 1955 Act makes it clear that where the right of indemnity exists the
act has no application. Craven v. Lawson, 534 S.W.2d 653, 657 (Tenn. 1976). This narrow
view has been severely criticized by commentators, as well as the better-reasoned opinions
which have addressed this issue.
The Craven decision interpreted the pertinent indemnity section to prevent any
contribution, whereas that section can be seen as merely defining the rights among tortfeasors
without referring to any right the injured party may have against defendants.
____________________
claim against the servant, did not discharge the defendant (employer). Smith v. Raparot, 225 A.2d 666, 667
(R.I. 1967). Thus, even under the perhaps more narrow language of the 1939 Uniform Act, the provisions of the
Uniform Act apply to releases affecting the vicarious liability of the master-servant relationship.
Comment, The Covenant Not to Sue: Virginia's Effort to Bury the Common Law Rule
Regarding the Release of Joint Tortfeasors, 14 U.Rich.L.Rev. 809, 833 (1980). The
indemnity provisions of the 1955 Revised Act, upon which the [Craven] court so strongly
relied, merely clarify the nature of the rights of the various tortfeasors among themselves.
Comment, TortsVicarious LiabilityCovenant Not to Sue Servant or Agent as Affecting
Liability of Master or Principal, 44 Tenn.L.Rev. 199 (1976). The most recent court to
consider this issue rejected the Craven court's reliance on the indemnity language to exclude
vicarious liability because [i]n the first place, the rights of indemnity and contribution have
nothing to do with the rights of the injured party. Harris v. Aluminum Co., 550 F.Supp.
1024, 1034 (W.D.Va. 1982).
[Headnotes 2, 3]
We agree with this better-reasoned analysis, and hold that nothing in the indemnity
provision of the Uniform Act precludes application of the Uniform Act to situations
involving vicarious liability. Our reading of the indemnity language of the Uniform Act
indicates that the provision simply states that the vicariously liable employer would have a
right to indemnity, rather than contribution. This provision merely provides that no
contribution exists where indemnity exists. As to any subsequent action by the employer
against the employee, [a] primary wrongdoer enters [settlement] agreements at the peril of
being later held to respond again in an indemnification action brought against him by the
vicarious wrongdoer. Hertz Corp. v. Hellens, 140 S.2d 73, 75 (Fla. 1962). [W]e must
assume that this contingency was foreseen and that this result was felt desirable. Ritter v.
Technicolor Corp., 103 Cal.Rptr. 686, 688 (Cal.App. 1972).
[Headnote 4]
Because nothing in the Uniform Act precludes its application to vicarious liability
situations, the provisions of the Uniform Act relating to release or covenants not to sue apply
to the document executed by Van Cleave and Alimisis.
3
Under the release provision of the
Uniform Act, a release of one of two parties liable for Van Cleave's injuries does not
discharge any of the other tortfeasors from liability for the injury or wrongful death unless its
terms so provide. NRS 17.245. The release document executed by Van Cleave and Alimisis,
then, does not discharge Gamboni, because the terms of the release document expressly
provide that it not do so. Were it otherwise, wrongdoers who do not make or share in
making reparation are discharged while one willing to right the wrong and no more guilty
bears the whole loss."
____________________

3
The Uniform Act makes no distinction between the effects of a release or of a covenant not to sue.
loss. Whittlesea v. Farmer, 86 Nev. 347, 354, 469 P.2d 57, 61 (1970). (Zenoff, J.,
concurring.)
We recognize that the expressed public policy established by the Uniform Act is to
encourage rather than discourage settlements. 12 U.L.A. 65. One commentator has
recognized that the release provisions of the 1955 Revised Act were intended to promote
settlements, so a construction of the statute should be directed to achieving that objective.
Comment, TortsVicarious LiabilityCovenant Not to Sue Servant or Agent as Affecting
Liability of Master of Principal, 44 Tenn.L.Rev. 197 (1976).
In the case before us, Van Cleave has settled with the employee, specifically not releasing
her claim against the vicarious liable employer Gamboni. If we determined that the Uniform
Act does not apply to her claim against the employer, we would be discouraging prompt
resolutions of actions, not encouraging such settlements, in contravention of the expressed
public policy of the Uniform Act. An injured party probably would be reluctant to settle with
the servant or agent, and thereby extinguish his cause of action against the master or
principal, unless he could settle with the servant or agent for an amount sufficient to
compensate him for his entire loss. Id. at 198. There is no indication, from our review of the
record, that in settling promptly with the employee, Van Cleave believed she was settling for
her entire loss. In fact, the express reservation of her claims against anyone else in the
release document indicates that Van Cleave did not believe the settlement with Alimisis was
for her entire claim.
We are convinced that our interpretation of the Uniform Act, consistent with most courts
which have construed its provisions in vicarious liability situations, best serves the purpose of
the statute. Such a statute is enacted to prevent the harshness of the common-law rule, not to
defeat the intentions of the parties and work as a trap for the unwary. Whittlesea, 86 Nev. at
354, 469 P.2d at 61.
Accordingly, the order of the district court granting summary judgment in favor of
Gamboni is reversed and the case is remanded for a trial on the merits.
____________
101 Nev. 531, 531 (1985) Higgins v. State, Dep't Mtr. Vehicles
JANICE HIGGINS, Appellant, v. STATE OF NEVADA,
DEPARTMENT OF MOTOR VEHICLES, Respondent.
No. 15858
September 24, 1985 706 P.2d 506
Appeal from judgment sustaining order of Department of Motor Vehicles hearing officer
revoking driver's license. Eighth Judicial District Court, Clark County; Addeliar D. Guy,
Judge.
Order of Department of Motor Vehicles revoking motorist's driving privileges was upheld
in district court and motorist appealed. The Supreme Court held motorist was incapable of
refusing to submit to required evidentiary tests.
B. Mahlon Brown, III, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, and Paul L. Wilkin, Deputy Attorney
General, Las Vegas, for Respondent.
1. Criminal Law.
Corroborating medical evidence is critical in evaluating whether individual was incapable of withdrawing
consent to undergo required evidentiary tests when suspected of driving or exerting control over vehicle
while under influence of liquor or controlled substance under NRS 484.382, 484.383.
2. Criminal Law.
Motorist was incapable of refusing to submit to required evidentiary tests to determine if she was under
influence of intoxicating liquor or controlled substance in violation of NRS 484.382, 484.383, where
motorist testified at time of accident she had no control of car and car had no power steering belt when
towed after accident, motorist had multiple serious injuries, motorist had been sedated, motorist exhibited
general incoherency, and doctor testified in his opinion motorist was not able to comprehend implied
consent law or give an intelligent response.
OPINION
Per Curiam:
This is an appeal from a judgment of the district court upholding an order of a Department
of Motor Vehicles hearing officer revoking appellant's driving privileges. The initial order
entered October 31, 1983 was affirmed April 16, 1984 after appellant presented additional
testimony from Dr. Thorne Butler.
Appellant was injured in a single car accident September 4, 1983 at approximately 4:55
a.m. while driving on Tropicana Avenue in Las Vegas. Her vehicle crossed two lanes of
traffic, struck a light pole, and ended up in the dirt portion of a parking lot.
lot. The left side of appellant's vehicle was damaged.
1
Medicaid personnel responding to the
accident had difficulty in removing appellant from the car.
Michael Cranson, a traffic officer for Metropolitan Police Department, investigated the
accident. Appellant was pinned inside the car when Officer Cranson arrived at the accident
scene. Paramedics were working to extricate her from the driver's compartment, and the
officer did not speak to her at that time. He said, She was obviously injured. Although he
could not recall specifically any comments made by her at the scene, he said her speech was
slurred, her eyes were red and he could smell the odor of an alcoholic beverage on her breath.
Appellant was taken by ambulance to Desert Springs Hospital where she was treated for
leg and arm injuries, a torn rib cage, internal injuries and a broken pelvis. Appellant had
apparently lost consciousness at the accident scene or while in the ambulance. Skull X-rays
were taken at the hospital. Blood and urine tests were administered and when blood was
discovered in her urine, she was given an intravenous pyelogram in which dye was put into
the blood for an X-ray study of the kidneys. 50 miligrams of Demerol and 50 miligrams of
Phenergan were administered to appellant in the emergency room. Dr. Thorne Butler testified
that Demerol is an analgesic or pain killer, and that Phenergan is a phenothiazine derivative
primarily used as a mood relaxer. Both drugs act as depressants on the central nervous
system.
Officer Cranson did not consult with hospital personnel about appellant's condition or
treatment, but went directly to the room where she was confined. Appellant testified that she
was sleeping when the officer entered. Cranson did not recall whether appellant was awake or
asleep but did say, She may have had her eyes closed.
The officer said that based upon his experience as a police officer from past
investigations, he determined that appellant knew what day it was, that she was in the
hospital and understood what was going on around her. He advised her of her Implied
Consent and her Miranda warning at that time.
2
Officer Cranson testified that appellant
"kept requesting her mother repeatedly without acknowledging whether she would take
her blood or urine test."
____________________

1
The investigating officer testified that the accident report showed moderate to major damage to the car.

2
Officer Cranson testified that he had read the following statement of the implied consent law to her:
You are requested to submit to a chemical test to determine the alcoholic content and/or controlled
substance content of your blood. You have a choice of whether the test be of your blood, urine or breath
if available. A refusal would result in a revocation of your driving privilege. If this is your first refusal,
you will not be eligible for a driver's license, permit or privilege to drive for a period of one year. If
Officer Cranson testified that appellant kept requesting her mother repeatedly without
acknowledging whether she would take her blood or urine test. He further stated that
appellant was irritable, belligerent. She kept stating, I don't want to talk to any one. I want
to speak to my mother. I want my mother here.' He made no inquiry to determine that blood
and urine samples had in fact been taken from appellant while in the hospital. He admitted
that he might have become belligerent possibly because of her attitude. I'm only human.
3

Appellant testified that at the time of the accident she had no control over the car. A letter
was admitted in evidence from the shop manager of Pete Findlay Oldsmobile which stated
that when the car was towed there, it had no power steering belt which would have made it
impossible to steer.
Appellant testified that she could remember little of the accident and her contact with
Officer Cranson at the hospital. She stated that she was sleeping after receiving shots and that
He came in and started screaming at me, I had to take to sign a thing to take a test and I
said, I really didn't know what he was talking about at first, and then he says, you gotta
submit, you gotta sign a thing to a test. He was screaming and he said, and I said they
already stuck needles in me and I said, you're not sticking any in me. I just remember
saying I wouldn't take any more needles.
Appellant stated that officer Cranson left the room and then returned, at which time he
threw a paper on the bed. She testified that it was not her intention to refuse to submit to a
blood test; that she did not understand what was happening until several days later when she
read that thing he threw.
The only medical witness to testify was Dr. Thorne Butler,
4
a board certified pathologist
and forensic toxicologist whose qualifications were stipulated to for purposes of the
hearing. Dr. Butler stated,
____________________
you refused to submit to a test and previously had your license permit or privilege to drive suspended or
revoked for failing to submit to such a test within seven years, you will not be eligible for a license,
permit or privilege to drive for a period of three years.

3
A letter dated September 25, 1983 from another patient in the same room as appellant, Jean Jones, was
received in evidence. Ms. Jones wrote,
While in the hospital room with you at Desert Springs I overheard a very sarcastic and extremely rude
man giving you a hard time concerning your accident and your license. I could not believe anyone could
put that much stress on a person in that much pain and suffering that you were in that morning.

4
The emergency room physician who treated appellant was subpoenaed by her but failed to appear.
Appellant's attorney stated that: Dr. Homansky told us over the phone this morning that he would not be here,
period, even though he was requested to answer the subpoena.
board certified pathologist and forensic toxicologist whose qualifications were stipulated to
for purposes of the hearing. Dr. Butler stated,
It is my medical opinion then that Miss Higgins who had suffered a fractured pelvis and
was being treated for pain with demerol and a phenothiazine tranquilizer (phenergan)
would not be in any condition to give an intelligent response or to comprehend the
implied consent laws concerning the obtaining of a blood specimen for a blood alcohol
analysis.
Nevada's implied consent law requires drivers and those exerting actual physical control
over a vehicle while upon the highways or premises to which the public has access to submit
to a preliminary breath test or evidentiary test to determine if they are under the influence of
an intoxicating liquor or a controlled substance. See NRS 484.382 and NRS 484.383.
Individuals having an evidentiary blood alcohol level of .10 percent or more, or who are
directed by an officer to take a test but refuse, face revocation of driving privileges. See NRS
484.385(1).
The Department of Motor Vehicles revoked appellant's driving privileges because of her
failure to submit to the evidentiary test. See NRS 484.383(7) and NRS 484.384(1). While
appellant was given the opportunity to withdraw her consent, we conclude that based upon
the objective facts and circumstances, she was incapable of doing so.
Any person who is dead, unconscious, or otherwise in a condition rendering him
incapable of refusal shall be deemed not to have withdrawn his consent, and any such
test may be administered whether or not the person is informed that his failure to
submit to the test will result in the revocation of his privilege to drive a vehicle.
In State v. Campbell, 615 P.2d 190, 195 (Mont. 1980) the court observed:
Here, the officers observed that Campbell was seriously injured and in great pain, were
advised by a nurse that it would be better not to try to talk to him, and could not get him
to respond coherently to questions when they did talk with him. Given this evidence
available to the officers, it appears they properly determined that Campbell was in a
condition rendering him incapable of refusing to consent to a blood test.
Similarly, in State v. Morgan, 646 P.2d 1177, 1180 (Mont. 1982), the court stated: Even
though Morgan was conscious and apparently coherent, his physical condition was serious
enough as determined by his doctor to render him incapable of refusing to consent to a
blood test."
apparently coherent, his physical condition was serious enough as determined by his doctor to
render him incapable of refusing to consent to a blood test. See also Rossell v. City & Cty.
of Honolulu, 579 P.2d 663, 671 (Hawaii 1978) (giving as an example of incapacity a driver
who is conscious but in shock because of serious injuries and is unable to respond to an
officer's request to submit to a breath or blood test).
[Headnote 1]
Corroborating medical evidence is critical in evaluating whether a suspected individual
was incapable of withdrawing consent. See People v. Massong, 482 N.Y.S.2d 601, 602
(N.Y.App.Div. 1984); Com., Dept. of Transp., Etc. v. Michalec, 415 A.2d 921, 922
(Pa.Commw.Ct. 1980).
[Headnote 2]
In the case at bar, Officer Cranson, who apparently had no medical training, came to the
subjective conclusion that appellant was capable of refusing to submit to the test and revoked
her license. The only medical testimony was presented by Dr. Thorne Butler, who stated that
in his opinion appellant was not able to comprehend the implied consent law or give an
intelligent response. Considering the objective factors,
5
namely, the circumstances of the
accident, appellant's multiple serious injuries, sedated condition, and general incoherency,
along with uncontradicted medical testimony, we conclude that she was incapable of refusing
to submit to the required evidentiary test. Accordingly, we reverse the judgment of the district
court and remand for entry of an order restoring appellant's driving privileges in accordance
with the views expressed herein.
____________________

5
As Officer Cranson was still investigating the accident scene when appellant was being treated at the
emergency room, and it appears he did not speak with the hospital's medical personnel, he would not have
known the extent of the appellant's injuries or that she had been sedated.
____________
101 Nev. 536, 536 (1985) Jeaness v. Besnilian
CHARLES JEANESS and IRENE JEANESS, Appellants and Cross-Respondents, v. SIMON
BESNILIAN and GLENDA BESNILIAN, Respondents and Cross-Appellants.
No. 15415
September 24, 1985 706 P.2d 143
Appeal and cross-appeal from a judgment awarding respondents damages in a breach of
contract action; Second Judicial District Court, Washoe County; James J. Guinan, Judge.
Partner filed suit for breach of partnership agreement to purchase and operate cleaners in
district court and was awarded damages. Breaching partner appealed, and the Supreme Court
held that: (1) evidence was sufficient to support finding that breaching partner breached
partnership agreement; (2) partner seeking damages was entitled to half profits of businesses
while run by breaching partner alone; (3) partner seeking damages was entitled to half of
reduced share of profits made by breaching partner after sale of one-half interest in
businesses; (4) damage award of partner seeking damages was required to be reduced by
share of down payment on businesses; (5) award of prejudgment interest was improper; and
(6) trial court was correct to deduct amount of business' allowable depreciation in gross
income in determining net income breaching partner was liable for.
Affirmed as modified.
Beasley, Hamilton & Holden, Reno, for Appellants and Cross-Respondents.
John Sanchez and Richard L. Davenport, Reno, for Respondents and Cross-Appellants.
1. Partnership.
Evidence was sufficient to support finding that first partner breached oral partnership agreement to
purchase and operate cleaners.
2. Partnership; Specific Performance.
When a partner wrongfully repudiates partnership and converts assets of partnership to his own use and
benefit, excluded partner has a choice of alternative remedies, either specific enforcement of partnership
agreement or damages for breach of agreement.
3. Partnership.
Partner electing to sue for damages for breach of partnership agreement to purchase and operate cleaners
was entitled to recover any lost profits he suffered.
4. Partnership.
Partner seeking damages for breach of partnership agreement to purchase and operate cleaners
was entitled to half the profits of businesses which were subject of agreement during
period breaching partner ran businesses alone.
purchase and operate cleaners was entitled to half the profits of businesses which were subject of
agreement during period breaching partner ran businesses alone.
5. Partnership.
Partner seeking damages for breach of partnership agreement to purchase and operate cleaners was
entitled to half of the reduced share of profits breaching partner received from cleaning businesses after
breaching partner made a legitimate and apparently necessary decision to sell half the interest in cleaning
businesses to secure management and expertise needed to maintain operation and his share of profits
decreased by half.
6. Partnership.
In action for damages for breach of partnership agreement, expenses saved because of wrongful act of
breaching partner must be subtracted from any recovery by partner seeking damages.
7. Partnership.
Damage award to partner in action for breach of partnership agreement to purchase and operate cleaners
was required to be reduced by his share of down payment due on partnership businesses, where breaching
partner paid entire down payment.
8. Interest.
Award of prejudgment interest from date of service of summons and complaint in action for breach of
partnership agreement was improper where agreement between partners did not provide for definite sum of
money, and value of performance was not stated or ascertainable by mathematical calculation from
standard fixed in contract or from established market prices.
9. Partnership.
Trial court was correct in action for damages for breach of partnership agreement in deducting amount of
allowable depreciation from gross income of partnership cleaning businesses in determining net income
breaching partner was liable for, where majority of businesses' assets were fixtures of type which rapidly
depreciate, and breaching partner supplied most of risk capital for cleaning businesses' operation.
OPINION
Per Curiam:
In October, 1978, following previous negotiations, Charles Church (Church) offered both
Society Cleaners and Artist Cleaners to Simon Besnilian (Besnilian) for the sum of $350,000.
About the same time Charles Jeaness (Jeaness) had indicated to Besnilian that he had some
money he wanted to invest. Besnilian and Jeaness entered into negotiations with each other
and orally agreed to purchase the two cleaners together.
In early November, Besnilian and Jeaness informed Church of the agreement. With respect
to the $100,000 down payment required by Church, it was understood that each was to pay
the sum of $50,000. Subsequently, on December 26, 1978, Besnilian and Jeaness agreed
with Church, in writing, to purchase Society and Artist Cleaners.
and Jeaness agreed with Church, in writing, to purchase Society and Artist Cleaners.
Prior to the beginning of business operations, Jeaness paid Church the sum of $25,000 in
partial satisfaction of the required down payment. The balance was not due until February 23,
1979. Besnilian gave Jeaness a check on January 4, 1979, for $13,116.50. This sum
represented his half of the payment made and the additional sum represented his share of
expenses already incurred by Jeaness.
Several weeks later, a dispute arose between Jeaness and Besnilian. This dispute
eventually resulted in the cessation of their relationship. The lower court properly found that
Jeaness, by excluding Besnilian from the operation of the cleaning establishment, had
committed a breach of the oral partnership agreement.
On February 1, 1979, Jeaness went to the law offices of Gary Nelson and asked him to
prepare a letter advising Church that Jeaness had no intention of continuing his business
relationship with Besnilian. Shortly thereafter, Besnilian received the letter and, as a result, a
meeting between all parties was scheduled for February 4, 1979. On that date, counsel and all
parties met in an attempt to resolve the problems which existed between Jeaness and
Besnilian. After it became clear the relationship could not be salvaged, Church said he would
sell the business to either of them individually.
Following this meeting, on February 7, 1979, Besnilian's counsel wrote to Gary Nelson,
informing him that Besnilian was willing and able to proceed with the purchase of the
cleaners and, further, that he was prepared to deposit $37,500, which represented his half of
the down payment that was still owed.
On February 20, 1979, Besnilian filed suit against Jeaness and Church in the Washoe
County Court. Thereafter, Church sought authorization from the Washoe County District
Court to sell the cleaners to any third party. As a result of this communication, all parties
entered into an agreement on March 30, 1979, which provided, in substance, that Church
could sell the cleaners in order to keep them out of limbo and operational, but only to Mr. and
Mrs. Jeaness. In addition, each party agreed they would not interpose the agreement or the
terms and conditions thereof in support of a claim, as a defense, or in mitigation of damages.
On May 1, 1979, Church sold the cleaners to Mr. and Mrs. Jeaness on the same terms as
the December 26, 1978, agreement. Jeaness paid the down payment. Following the purchase,
Jeaness was the sole owner, and was so for approximately seven months. Needing assistance
to operate the cleaners, Jeaness conveyed a one-half interest in the cleaners to Dennis Church.
In return, Dennis Church managed both cleaners and furnished his assistance, knowledge
and expertise of the dry cleaning business.
Dennis Church managed both cleaners and furnished his assistance, knowledge and expertise
of the dry cleaning business.
On February 1, 1981, J. Cashew Corporation purchased the cleaners for $600,000. J.
Cashew made a $24,000 down payment, assumed various accounts payable, and executed a
promissory note to Jeaness and one to Dennis Church.
[Headnote 1]
The trial court awarded Besnilian damages against Jeaness under the breach of contract
claim. The lower court found Jeaness committed a breach of the oral partnership agreement
entered into with Besnilian to purchase and operate the cleaners. Because there is substantial
evidence in the record to support the findings and judgment of the district court in this regard,
we must affirm the lower court's decision. Udevco, Inc. v. Wagner, 100 Nev. 185, 678 P.2d
679 (1984). Nevertheless, the damage award to Besnilian in the amount of $112,500 was
improper. Fifty thousand dollars represented one-half the profits supposedly made during the
25 months of ownership by Jeaness and the $62,500 was to compensate Besnilian for
one-half the net profits realized by the sale to J. Cashew, discounted to present value. In
addition, the lower court awarded Besnilian prejudgment interest. Our review of the facts of
this case and the record convinces us that the lower court erroneously determined the amount
of damages to which Besnilian was entitled.
[Headnote 2]
Where a partner wrongfully repudiates the partnership and converts the assets of the
partnership to his own use and benefit, the excluded partner has a choice of alternative
remedies:
[H]e may waive the tort or breach and sue to specifically enforce the partnership or
joint venture agreement, including the remedy of a judicial dissolution and an
accounting and if necessary (as an auxiliary remedy) to impress a trust on
partnership or joint venture property, . . . or the victim may submit to the repudiation
and sue for damages for breach of the joint venture agreement (including profits
which might have been made) the same as any other action for damages for breach
of any other contract.
Gherman v. Colburn, 72 Cal.App.3d 544, 140 Cal.Rptr. 330, 343 (1977).
[Headnote 3]
At trial, Besnilian's counsel informed Judge Guinan that they were not seeking specific
enforcement of any partnership agreement. Besnilian elected to sue for damages for breach of
the agreement.
agreement. Obviously, Besnilian is entitled to recover any lost profits he has suffered.
Therefore, our inquiry must now be directed to the amount of lost profits Besnilian is entitled
to receive as damages.
[Headnotes 4, 5]
Between the period of January 1, 1979, to December 1, 1979, Jeaness was, in essence, the
sole owner of the cleaners. Besnilian was therefore entitled to, and was awarded, one-half of
the profits of the cleaners attributable to the operations of that period. However, as a result of
Jeaness' inexperience and need for assistance in operating the cleaners, a legitimate and
apparently necessary decision was made to sell a one-half interest in the cleaners to secure the
management and expertise needed to maintain the operation of the cleaners. Accordingly,
from the time of the sale, the profits Jeaness received were decreased by one-half. It would be
unjust to require Jeaness to forfeit his entire share of these profits to Besnilian despite the
bona fide management decision to sacrifice equity in order to maintain a profitable operation.
Hence, Besnilian's share of the profits must also be decreased by one-half after the transfer of
interest to Dennis Church. In other words, after Jeaness relinquished a one-half interest in the
cleaners, Besnilian was thereafter entitled to one-quarter of the profits realized by the
business.
The trial court determined that the cleaners netted approximately $4,000 a month.
Therefore, Besnilian is entitled to the sum of $2,000 per month or a total of $22,000 for the
eleven-month period when Jeaness was the sole owner of the business. With respect to the
remaining fourteen months for which damages are to be computed, the business ownership
was divided between Jeaness and Church. During the latter period, Besnilian was entitled to
one-half of Jeaness' profits, or one-quarter of the profits of the business. Besnilian is therefore
entitled to $14,000 for this period. Similarly, because Jeaness only owned a one-half interest
in the cleaners when they were sold, Besnilian's damage was $31,250, as opposed to the
$62,500 awarded by the trial court. Accordingly, the total amount of damages Besnilian
should receive for lost profits is $67,250.
[Headnotes 6, 7]
However, in an action such as this, the expenses saved because of the wrongful act of the
defendant must be subtracted from any recovery. 22 Am.Jur.2d Damages 178 at 253. The
record indicates that Jeaness paid the $100,000 down payment to Church. Thus, Besnilian did
not have to pay the sum of $37,500 which represented the remainder of his share of the down
payment. Therefore, Besnilian's damages must be reduced by that amount.
Finally, the trial court awarded Besnilian interest on the judgment from the date of service
of the summons and complaint at the rate of 8 percent per annum until July, 1981, and
thereafter at a rate of 12 percent per annum until July 15, 1983.
This Court reviewed in depth the question of the allowance of prejudgment interest in
Paradise Homes, Inc. v. Central Sur. & Ins. Corp., 84 Nev. 109, 437 P.2d 78 (1968). In
determining whether prejudgment interest should be allowed a two-fold standard was
suggested. First, three itmes must be determined to enable the trial courts to make an
approximate award of interest: (1) the rate of interest; (2) the time when it commences to run;
and (3) the amount of money to which the rate of interest must be applied. Second, the
interest runs from the time the money becomes due. The court explained:
The amount of money to which the interest rate will be applied must be determined by
the following factors: (1) if the contract breached provides for a definite sum of money,
that sum; (2) if the performance called for in the contract, the value of which is stated in
money or is ascertainable by mathematical calculation from a standard fixed in the
contract or from established market prices of the subject matter, that sum. Pre-judgment
interest shall be allowed on the amount of the debt or money value so determined, after
making all the deductions to which the defendant may be entitled.
Id. at 116-17.
[Headnote 8]
The agreement entered into between Jeaness and Besnilian did not provide for a definite
sum of money, the value of performance was not stated nor ascertainable by mathematical
calculation from a standard fixed in the contract or from established market prices. In effect,
the amount due was unknown and unascertainable until rendition of the judgment and
therefore did not become due until then. To award prejudgment interest in this case was
improper.
[Headnote 9]
As a final concern, we direct our attention to Besnilian's cross-appeal concerning the lower
court's alleged improper treatment of the businesses' allowable depreciation. We have
reviewed the record and are unable to say the lower court erred by deducting the amount of
depreciation from the gross income of the cleaning establishments in determining the net
income for which Jeaness was accountable. The circumstances surrounding this case do not
reflect that the trial court's finding, in this regard, is clearly erroneous. Accordingly, it will not
be set aside. Udevco, Inc. v. Wagner, 100 Nev. 185, 678 P.2d 679 (1984).
The premises upon which the cleaners were located were leased. Hence, the majority of
the businesses' assets were fixtures of the type which rapidly depreciate. Moreover, it was
Jeaness who supplied most of the risk capital for the cleaners' operation. Therefore, based
upon the circumstances of this case, we decline to hold the amount deducted for depreciation
should have been included as net income. See Stoner v. Stoner, 307 A.2d 146, 152 (Conn.
1972).
We have considered the remaining contentions of error addressed by the parties and
consider them to be without merit. In conclusion, Besnilian is entitled to $29,750 in damages.
Accordingly, with the exception of the issues disposed of herein, we affirm the remainder of
the lower court's decision.
____________
101 Nev. 542, 542 (1985) Wickliffe v. Sunrise Hospital
PATRICIA A. WICKLIFFE, as Special Administratrix of the Estate of ANGELA R.
WICKLIFFE, Deceased, on Behalf of the Heirs of the Estate, and PATRICIA A.
WICKLIFFE, and JOHN C. WICKLIFFE, Individually, as Natural Parents of
Said Deceased Minor, Appellants, v. SUNRISE HOSPITAL, INC., a Nevada Corporation,
Respondent.
No. 15668
September 24, 1985 706 P.2d 1383
Appeal from a judgment for respondent in a wrongful death action. Eighth Judicial District
Court, Clark County; John F. Mendoza, Judge.
Parents sued hospital for wrongful death of teenage daughter who suffered respiratory
arrest while recovering from surgery. The district court rendered judgment for hospital, and
parents appealed. The Supreme Court, Mowbray, J., held that: (1) level of care to which
hospital must conform is a nationwide standard; (2) it was reversible error to exclude
testimony of parents' witness as to nationwide standard; and (3) parents should have been
allowed to present hospital records in same form as they were mailed.
J. R. Crockett, Jr., Ltd. and Jonathan C. Reed, Las Vegas, for Appellants.
Barker, Gillock & Perry and Kerry L. Earley, Las Vegas, for Respondent.
1. Hospitals.
A hospital is required to employ that degree of skill and care expected of a reasonably competent hospital
in the same or similar circumstances; level of care to which a hospital must conform is no longer subject to
narrow geographic limitations under the so-called locality rule but is instead a nationwide standard.
2. Evidence.
An expert witness who is familiar with the standard of care of a reasonably competent hospital in similar
circumstances wherever located may testify in a negligence action against the hospital or its employees; in
determining whether circumstances are similar a court should consider developments in the profession,
availability of special facilities and of personnel with additional training as well as any other considerations
relevant to the treatment in question.
3. Appeal and Error; Evidence.
In malpractice action based on alleged improper nursing care it was reversible error to exclude testimony
of nurse familiar with national nursing policies and procedures notwithstanding that nurse was not familiar
with practices in the locality.
4. Evidence.
Registered nurse who was certified in nursing specialties of intensive care, coronary care, emergency
room and advanced coronary life support, who was certified in quality assurance by American College of
Utilization Review Physicians and by the Joint Commission on Accreditation of Hospitals, who had been
conducting quality reviews of various hospitals in Philadelphia, Pennsylvania area for four years to
determine whether hospital satisfied national requirements for accreditation, who had been nursing
supervisor and head nurse of medical surgical unit at hospitals in New Jersey and who testified that she was
familiar with national nursing policies and procedures could testify as to national standard of recovery
room nursing care.
5. Evidence.
Registered nurse who was nursing supervisor at time plaintiffs' daughter had surgery and suffered
respiratory arrest could testify as part of parents' case-in-chief in wrongful death against hospital.
6. Evidence.
Testimony of registered nurse, who was nursing supervisor at time plaintiffs' daughter had surgery and
suffered respiratory arrest in recovery room, that rolodex specifying recovery room nursing procedures
was the recovery room procedural manual in effect at the time would suffice to authenticate the rolodex
and would constitute proper foundation for its admission. NRS 52.015, 52.025.
7. Trial.
Hospital records of deceased daughter's treatment, which records were furnished parents in two separate
mailings, should have been presented to jury, in wrongful death action, in same form as they were mailed;
fact that two pages which recorded child's brief stay in recovery room and events surrounding her
respiratory arrest were mailed separately from remainder of hospital records suggested that those two most
important pages were somehow treated differently and inferences arising from those facts were highly
relevant and jury should have been allowed to consider them when evaluating the contents of those pages.
8. Hospitals.
Instruction concerning nonliability of defendant hospital for consequences of treatment by patient's
physicians was not erroneous where the instruction was supported by the evidence in wrongful death action
based on alleged negligent hospital care while in postsurgery recovery room.
based on alleged negligent hospital care while in postsurgery recovery room.
OPINION
Appellants John and Patricia Wickliffe appeal from a judgment for respondent Sunrise
Hospital in an action for the wrongful death of their teen-aged daughter Angela. While
recovering from successful surgery at Sunrise, Angela suffered a respiratory arrest and died
twelve days later. We hold that the district court erred by excluding the testimony of the
Wickliffes' expert witness under the locality rule. We reverse and remand for a new trial
applying a national standard of care to Sunrise.
THE FACTS
At 7:40 a.m. on December 7, 1978, Angela Wickliffe underwent an operation at Sunrise
Hospital to correct the curvature or scoliosis of her spine, Angela was a healthy
thirteen-year-old. The operation, called a Harrington rod procedure, was performed by Dr.
James Ogilvie, his first surgical assistant, and Dr. William Kemp, an anesthesiologist. The
operation was uneventful and successful. At the end of surgery, at 9:40 a.m., Angela was
given narcan, a narcotic antagonist, to reverse the effects of the anesthesia she had received.
Once in the recovery room, at 9:50 a.m., Angela showed signs of delirium and began
thrashing about. Dr. Kemp orally ordered the recovery room nurse to give Angela 2
milligrams (mgs.) doses of morphine sulphate (morphine) until she calmed down. Morphine's
most common side effect is respiratory depression, i.e., a slowing down of breathing. Dr.
Kemp observed Angela respond favorably to the first 2 mgs. of morphine. Then, Dr. Kemp
left the recovery room to assist in another surgery. The nurse administered a total of 12 mgs.
of morphine over twenty minutes. Dr. Kemp testified that he did not expect the nurse to give
as much as 12 mgs. since two seemed to have an effect. Because Angela was still restless, the
nurse obtained permission from Dr. Kemp to give Angela valium and administered 1 mg. of
it. Dr. Ogilvie observed Angela in the recovery room at 10:30 a.m. and found her to be
recovering normally. He did not know at the time that she had been given narcan and
morphine after the operation. Dr. Ogilvie testified that Angela may have appeared normal
after such a large dose of morphine because the narcan was still in her system.
At 11:20 a.m., Angela was transferred from the recovery room to her room on the surgical
floor. The recovery room nurse gave the head nurse of the surgical floor a report on Angela's
condition. This report included the fact that Angela had been given 12 mgs. of morphine and
some valium in the recovery room. Patricia Wickliffe joined Angela in her room. Angela's
assigned nurse was at lunch so a patient care attendant
1
checked Angela's vital signs at 11:30
a.m. and immediately recorded or charted them. Vital signs include pulse, respiration,
blood pressure, temperature and the quality of the patient's breathing and consciousness.
Angela's vital signs were normal at this time. Dr. Ogilvie visited Angela in her room soon
afterwards and assessed her condition as good.
At noon, a lab technician drew a blood sample from Angela, as ordered by Dr. Ogilvie's
partner. Angela was awake enough to help the technician. Angela's assigned nurse refilled her
water pitcher at 12:15 p.m. The nurse noticed Angela was snoring. Snoring-like sounds, if
accompanied by other signs of distress, can be a sign of respiratory depression. The nurse
charted her observations two hours later. At 12:30 p.m., a nursing assistant brought Angela's
lunch tray into her room. Angela was snoring. The nursing assistant left the room to check to
make sure Angela was to have lunch. When she returned, the nursing assistant noticed Angela
was no longer snoring. Mrs. Wickliffe could not wake Angela. The nursing assistant
discovered Angela had no pulse and was not breathing and called for help. The head nurse ran
into the room and began cardiopulmonary resuscitation. Doctors were later able to revive
Angela to a comatose state. She never regained consciousness, however, and died from brain
damage from a lack of oxygen on December 19, 1978.
Dr. Ogilvie testified that Angela died from respiratory depression due to the administration
of morphine. Three other doctors testified they could not form an opinion as to the cause of
Angela's death.
Patricia and John Wickliffe filed suit against Sunrise for the wrongful death of their
daughter. The Wickliffes alleged negligence of the hospital employees, the nurses. The
Wickliffes did not sue Angela's doctors who were not hospital employees.
At trial, the Wickliffes sought to prove that Sunrise violated its own procedures and gave
Angela nursing care that fell below certain minimum standards in the profession. Specifically,
the Wickliffes attempted to establish that Sunrise's written procedures and the standard of
care for nursing in general required that the vital signs of a post-surgical patient be monitored
every fifteen minutes for the first hour the patient is back on the surgical floor.
____________________

1
A patient care attendant is not trained as a nurse. This particular attendant received three months training at
Sunrise.
fifteen minutes for the first hour the patient is back on the surgical floor. Angela's vital signs
were not checked between her return to the floor at 11:30 a.m. and the discovery of her
respiratory arrest at 12:40 p.m. The Wickliffes also alleged that the nurses failed to give
Angela the appropriate care under the special circumstances of her case. These circumstances
included the fact that she was given a substantial dose of morphine in the recovery room and
thereafter displayed symptoms of respiratory depression.
The Wickliffes were hampered in their efforts to prove the standard of care for
post-surgical patients in general and at Sunrise in particular by evidentiary rulings of the
district court. The testimony of Carolyn Sandler, R.N., an expert witness on nursing
procedures, was excluded in its entirety. The testimony of Marjorie Woods, R.N., a retired
nursing supervisor from Sunrise, was excluded from the Wickliffes' case-in-chief. In addition,
important and relevant documentary evidence was deemed inadmissible.
The jury returned a verdict for Sunrise. The Wickliffes appeal from the judgment entered
on this verdict. For the reasons set forth below, we reverse.
THE LAW
On appeal, the Wickliffes challenge the exclusion of their expert witness, Nurse Sandler.
At a hearing outside the presence of the jury, Nurse Sandler testified that in her opinion
Angela did not receive the minimal care due a post-surgical patient who had been given a
narcotic in the recovery room. According to Nurse Sandler's testimony, the national standard
of nursing care in 1978 required that a nurse observe a post-operative patient and take the
patient's vital signs every fifteen minutes for at least the first hour the patient is back on the
surgical floor.
2
Nurse Sandler based her opinion upon the level of care established by
standards promulgated by the American College of Utilization Review Physicians (ACURP)
and by the Joint Commission on Accreditation of Hospitals (JCAH) and from her own
familiarity with nursing procedures.
After three years of nursing school, Nurse Sandler received her degree as a registered
nurse in 1965. She was certified in the nursing specialties of intensive care, coronary care,
emergency room and advanced coronary life support. Nurse Sandler is also certified in quality
assurance by ACURP. At the time of trial, she had been conducting quality reviews of various
hospitals in the Philadelphia, Pennsylvania, area for four years. Her duties included
determining whether a hospital satisfied the national requirements for accreditation by
JCAH.
____________________

2
Because Angela's assigned nurse was at lunch when she returned to the surgical floor, a patient care
attendant took her vital signs at 11:30 a.m. No nurse or other personnel took Angela's vital signs again until
12:40 p.m.
included determining whether a hospital satisfied the national requirements for accreditation
by JCAH. Nurse Sandler has also been a nursing supervisor and the head nurse of a
medical-surgical unit at hospitals in New Jersey. She testified that she was familiar with
national nursing policies and procedures but not with nursing practices in Las Vegas in
particular.
The district court excluded Nurse Sandler's testimony under the so-called locality rule.
The locality rule provides that the medical treatment of a patient is measured against the
standard of care acceptable in the local community. See Waltz, The Rise and Gradual Fall of
the Locality Rule in Medical Malpractice Litigation, 18 De Paul Law Review 408, 409
(1969). Consequently, the locality rule was said to require that a medical witness seeking to
give opinion evidence in a malpractice action must first show his knowledge of the standards
prevailing in the particular locality. Orcutt v. Miller, 95 Nev. 408, 412, 595 P.2d 1191, 1193
(1979) (citing Lockart v. MacLean, 77 Nev. 210, 215, 361 P.2d 670, 673 (1961)). Nearly
twenty-five years ago this Court adopted the locality rule for expert witnesses in the fields of
medicine and surgery. Lockart, 77 Nev. at 215, 361 P.2d at 673. Presumably, the locality
rule applies to hospitals, although this Court has never expressly so held. The locality rule
was premised on the rationale that there exists gross inequality between physicians
practicing in large urban areas and those practicing in more remote rural communities. The
policy behind the rule was to prevent the small town practitioner from being held to the
standard of practice of the more sophisticated urban areas. Orcutt, 95 Nev. at 413, 595 P.2d
at 1194. Cf. Waltz, supra at 410.
More recently, this Court recognized that the reasons underlying the strict locality rule a
century ago simply do not justify its continued existence today. Orcutt, 95 Nev. at 413, 595
P.2d at 1194. In Orcutt, this Court overruled Lockart as it applied to physicians who were
board certified specialists. Citing advances in medical training and improvements in
communications, the Orcutt court held, in order to recover in a medical malpractice case, a
plaintiff must demonstrate that the defendant specialist failed to meet the standard of skill and
care expected of a reasonably competent practitioner in the same specialty wherever
practicing. 95 Nev. at 414, 595 P.2d at 1195. Thus, Orcutt adopted a national standard of
care, that is, a standard not limited by locality, for board certified specialists. See Annot. 99
A.L.R.3d 1133, 9, 10.
The progress in the medical profession which renders the locality rule inappropriate for
board certified specialists likewise affects hospitals. The largely standardized education of
doctors means that all hospitals are staffed by physicians with similar training. Hospitals, as
well as other health care practitioners, are informed of the latest medical advances with
ever-increasing swiftness.
informed of the latest medical advances with ever-increasing swiftness. In addition, hospitals
are accredited by the JCAH, which establishes national standards to which all hospitals
seeking accreditation must conform. Shilkret v. Annapolis Emergency Hospital Ass'n. 349
A.2d 245, 254 (Md.App. 1975). We note that Sunrise has always been accredited by JCAH.
Nursing education and licensing is also standardized. Nurses are licensed after passing an
examination in the state where they wish to work and a national examination. A licensed
nurse in good standing in one state can practice in another without taking the second state's
local examination. For these and other reasons,
[i]t is doubtful today if there is any substantial difference from one locality to another in
the type of hospital services rendered. Hospitals must now be licensed and accredited.
They are subject to statutory regulation. . . . It is no longer justifiable, if indeed it ever
was, to limit a hospital's liability to that degree of care which is customarily practiced in
its own community.
Dickenson v. Mailliard, 175 N.W.2d 588, 596 (Iowa 1970). Rather, the factors discussed
above warrant the adoption of a [national] standard of care for hospitals. Shilkret, 349 A.2d
at 254.
[Headnotes 1, 2]
We hold, therefore, that a hospital is required to employ that degree of skill and care
expected of a reasonably competent hospital in the same or similar circumstances. Dickinson,
175 N.W.2d at 596-97; Shilkret, 349 A.2d at 254. Cf. Orcutt, 95 Nev. at 414, 595 P.2d at
1195. The level of care to which a hospital must conform is no longer subject to narrow
geographic limitations but is instead a nationwide standard. Thus, an expert witness who is
familiar with the standard of care of a reasonably competent hospital in similar circumstances
wherever located may testify in a negligence action against a hospital or its employees. In
determining whether circumstances are similar, the district court should consider
developments in the profession, availability of special facilities and of personnel with
additional training as well as any other considerations relevant to the treatment in question.
Shilkret, 349 A.2d at 254.
[Headnotes 3, 4]
Because the district court excluded Nurse Sandler's testimony under the locality rule, we
reverse and remand for a new trial applying a national standard. On remand, Nurse Sandler
may testify.
[Headnote 5]
The Wickliffes also contend that the district court erred in excluding the testimony of
Marjorie Woods, R.N., from their case-in-chief.
excluding the testimony of Marjorie Woods, R.N., from their case-in-chief. Nurse Woods was
the nursing supervisor at Sunrise from 1965 until her retirement in 1980. She was familiar
with procedures in effect at Sunrise in 1978, the year Angela had her surgery and suffered her
respiratory arrest. Nurse Woods' name was not on the pre-trial witness list. For this reason,
the district court limited her testimony to rebuttal. Because we reverse the judgment for
Sunrise on other grounds we need not determine whether this ruling was an abuse of the
district court's discretion. See generally Southern Pac. Co. v. Watkins, 83 Nev. 471, 435 P.2d
498 (1967). On remand, however, the court is instructed to permit Nurse Woods to testify
during the Wickliffes' case-in-chief.
[Headnote 6]
Nurse Woods' testimony was crucial to the admissibility of a rolodex file. The Wickliffes
alleged that the rolodex was one of Sunrise's policy and procedures manuals in 1978. A
portion of the rolodex entitled Post-Operative Care After the Recovery Room read as
follows: Check vital signs and record. Report any variation which would indicate change in
patient status. (Usually taken every 15 minutes x 4, then every hour x 4, if stable; more often
if necessary and as ordered by physician.) The rolodex was excluded for lack of foundation.
NRS 52.015.
3
According to an offer of proof, Nurse Woods would have testified that the
rolodex was the manual in effect in 1978. This testimony, if offered at the trial on remand,
would be sufficient to authenticate the rolodex under NRS 52.015. See NRS 52.025.
4
If
Nurse Woods is able to so testify, the district court should find that a proper foundation has
been laid and should admit the rolodex.
5

[Headnotes 7, 8]
Finally, we hold that the district court abused its discretion by excluding the Wickliffes'
Exhibits 12 and 13.
____________________

3
1. The requirement of authentication or identification as a condition precedent to admissibility is
satisfied by evidence or other showing sufficient to support a finding that the matter in question is what
its proponent claims.
2. The provisions of NRS 52.025 to 42.105, inclusive, are illustrative and not restrictive examples of
authentication or identification which conform to the requirements of this section.
3. Every authentication or identification is rebuttable by evidence or other showing sufficient to
support a contrary finding.

4
The testimony of a witness is sufficient for authentication or identification if he has personal knowledge
that a matter is what it is claimed to be.

5
Of course, the Wickliffes may lay a foundation for the admission of the rolodex by any other proper means
as well.
excluding the Wickliffes' Exhibits 12 and 13. See Southern Pac. Co. v. Watkins, supra.
Exhibit 12 was a photocopy of Angela's hospital records except for pages 114 and 123. The
pages comprising Exhibit 12 were mailed by Sunrise's custodian of records on December 18,
1978, pursuant to a subpoena received that day. Exhibit 13 consisted of pages 114 and 123.
These pages were mailed from the hospital on December 19, 1978, pursuant to the same
subpoena. Pages 114 and 123 were the only pages in Angela's records concerning her brief
stay on the surgical floor following her surgery. These pages, which overlap in time, record
the events surrounding Angela's respiratory arrest. Thus, they contained critical evidence of
the nursing care Angela received. The record does not reveal where pages 114 and 123 were
on December 18 or why they were not mailed along with the remainder of Angela's records.
6

The Wickliffes sought to admit Exhibits 12 and 13 in order to bring to the jury's attention
questions about how Angela's records were processed by Sunrise.
7
The fact that pages 114
and 123 were separated from the rest of her hospital records suggests that the two most
important pages were somehow treated differently. Inferences arising from these facts were
highly relevant. The jury should have been allowed to consider them when evaluating the
contents of pages 114 and 123. The Wickliffes should have been allowed to present the
hospital records to the jury in the same form as they were mailed from Sunrise. Of course,
Sunrise would be free to offer an explanation of the separate mailings. Exhibits 12 and 13
should have been admitted. On remand, the district court is instructed to admit them.
8

CONCLUSION
We conclude that the district court erred by excluding appellants' expert witness under the
locality rule. We hold that hospitals are subject to a national standard of care under similar
circumstances. We reverse and remand for a new trial consistent with this opinion.
____________________

6
Dr. Ogilvie testified that he had not seen page 114 when he prepared a final summary of Angela's case
following her death on December 19, 1978.

7
The Wickliffes' Exhibit 1 consisted of Angela's records as a whole.

8
We also hold that the district court did not err in giving Instruction 13-F because the instruction was
supported by the evidence. Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983). Instruction 13-F concerned
the nonliability of the hospital for the consequences of treatment by Angela's physicians.
____________
101 Nev. 551, 551 (1985) Verner v. Nevada Power Co.
BRADNEY RAY VERNER, Appellant, v. NEVADA POWER COMPANY, a Nevada
Corporation, Respondent.
No. 15520
September 25, 1985 706 P.2d 147
Appeal from judgment entered on a jury verdict in a personal injury action. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
Telephone lineman brought action against power company for personal injuries sustained
when lineman fell from power company's pole. The district court ordered a bifurcated trial, in
which the jury returned a special verdict for power company on liability issue, and lineman
appealed. The Supreme Court held that: (1) ordering separate trials of liability and damages
issues was a reversible error; (2) refusal to give statutorily mandated jury instruction on
contributory negligence was error; and (3) admission of copy of statute prohibiting tapping
into power lines with intent to steal power was error, as any probative value as to
foreseeability was outweighed by its prejudicial effect.
Leavitt & Leavitt, Las Vegas, for Appellant.
Beckley, Singleton, De Lanoy & Jemison, and Sherman B. Mayor and Franny A. Forsman,
Las Vegas, for Respondent.
1. Trial.
To justify a separate trial on issue of liability, such issue must be separate and distinct from issue of
damages; where nature of injuries has an important bearing on issue of liability, separate trial should not be
ordered. NRCP 42(b).
2. Trial.
Party moving for separate trials on liability and damages issues must demonstrate that bifurcated trial is
clearly necessary to lessen costs and expedite litigation. NRCP 42(b).
3. Appeal and Error; Trial.
Ordering separate trials of liability and damages issues in personal injury action by telephone lineman
against power company on ground of economy of time was reversible error; issues of liability and damages
were inextricably interrelated, and bifurcation resulted in cursory presentation of lineman's injuries, which
power company used in arguing that lineman had not recovered from his amnesia resulting from accident
but had instead fabricated his testimony regarding accident. NRCP 42(b).
4. Trial.
Contributory negligence statute, NRS 41.141, subd. 2, directing trial judge to give specified jury
instruction regarding contributory negligence if requested by any party at trial, requires judge to give
specified instruction so requested, and this requirement applies regardless of
whether trial is bifurcated or whether a special verdict is used.
specified instruction so requested, and this requirement applies regardless of whether trial is bifurcated or
whether a special verdict is used.
5. Appeal and Error; Electricity.
Refusal to give jury instruction on contributory negligence prescribed by NRS 41.141, subd. 2 after
telephone lineman requested such instruction be given in liability phase of bifurcated trial of lineman's
personal injury action against power company was reversible error.
6. Electricity.
Statute, NRS 704.800, prohibiting tapping into power lines within intent to steal power, did not create
standard of care relevant to action by telephone lineman against power company for personal injuries
sustained when lineman fell off power company's pole after having attached homemade extension cord to
power lines to power his tools.
7. Electricity.
Refusal to instruct jury that telephone lineman's violation of statute, NRS 704.800, prohibiting tapping
into power lines with intent to steal power, was negligence per se was correct; lineman brought action
against power company for injuries sustained when he fell from power company's pole after having
attached a handmade extension cord to power lines to power his tools.
8. Evidence.
Admission of copy of statute, NRS 704.800 prohibiting tapping into a power line with intent to steal
power, into action by telephone lineman against power company for personal injuries sustained when
lineman fell from power company's pole as relevant to foreseeability was error, as any probative value of
statute was outweighed by its prejudicial effect; prior to his fall, lineman had attached handmade extension
cord to power line in order to power his tools.
OPINION
Per Curiam:
This is an appeal from a judgment entered on a jury verdict in a personal injury action in
favor of respondent, Nevada Power Company. The jury returned a special verdict finding
appellant Bradney Ray Verner 53 percent negligent in an accident, thus barring him from any
recovery. Appellant makes numerous assignments of error on appeal. Having determined that
the lower court erred in matters dispositive of this appeal, we reversed and remand for a new
trial.
On August 18, 1980, Bradney Ray Verner (Verner) was 29 years old and was employed as
a lineman for Centel Telephone (Centel). He and his partner were lowering the Centel lines to
make room for cable TV lines. The pole on which Verner suffered his injuries was owned by
respondent Nevada Power Company (Nevada Power), but jointly used by both utilities, and
had been installed in 1953.
The primary or main power line was supported at the top of this pole, but a vertical line
connected it to the transformer
1
located below the secondary power lines.
____________________

1
The transformer changes the 7200 volts transmitted by the primaries into 110 volt units to be transmitted by
the secondaries.
located below the secondary power lines. (Modern practice, made possible by lighter
transformers, is to locate transformers above the secondaries near the top of a pole.) The
vertical line, also carrying 7200 volts, formed a drip loop before attaching to the transformer
to allow water to drip off so it would not flow into the transformer. As a result of this
configuration of the transformer and the vertical line from the primary, the drip loop was the
lowest (in height) power bearing line on the pole. Normally, the primaries are the furthermost
off the ground and the secondaries are the power bearing lines closest to the ground. The
7200 volt drip loop was also partially insulated, as secondaries are while primaries usually are
not.
2
Thus, the drip loop was similar to a secondary in its location on the pole and its
appearance.
After making a visual inspection of the pole, Verner began climbing it. He climbed up to
the telephone lines, then continued climbing up to the secondaries which carry 110 volts to
individual houses. Verner then attached a handmade extension cord or pigtail to the
secondary. Pigtails supply power to linemen to run their power tools while working on poles.
Pigtails were not officially authorized by either Centel or Nevada Power; the evidence at trial
was conflicting whether they are unofficially tolerated. Linemen were instructed to use
approved extension cords running from a generator in the truck to the pole. When, as in this
case, the pole is in a backyard easement and the extension cord on the truck is too short, it is
more convenient to use a pigtail than to get a longer extension or to use hand tools.
Verner's accident happened as he was descending the pole back to the level of the phone
lines. At trial, Verner testified that he remembered that he suffered a gaff cutout
3
with his
left leg in mid-stride and his arms around the pole. The gaff on Verner's right foot slipped,
and he fell several feet as he fought to reestablish a position on the pole. In his struggle to
regain his balance, his left foot swung out and touched a grounded communication line. At
the same time, his left shoulder touched the drip loop of the primary power line carrying 7200
volts. Because Verner was touching both lines simultaneously the 7200 volts traveled through
his body, shocking him severely. Verner was seriously burned on his left shoulder, arm and
shoulder blade and the bottom of his left foot was burned off. The shock threw Verner off the
pole, and he fell 17 feet to the ground severing his spine. As a result of his injuries, Verner is
now a paraplegic, permanently paralyzed from the chest down, and confined to a
wheelchair.
____________________

2
If not grounded, a lineman could touch a secondary wearing only leather gloves while rubber gloves are
required to work with primaries.

3
The gaff is the steel climbing spike upon the climber's boot instep. A gaff cutout is when the gaff slips out
of the pole because of a crack or rotten spot in the pole.
permanently paralyzed from the chest down, and confined to a wheelchair.
At trial, Nevada Power made a motion for separate trials on the issues of liability and
damages on the basis that evidence of damages would prejudice the findings concerning
liability. NRCP 42(b).
4
The district court ordered separate trials as an economy of time. On
appeal, Verner argues that the district court abused its discretion in bifurcating this trial
because the issues of liability and damages were inextricably intertwined. We agree.
Verner asserts that medical testimony regarding his burn patterns was necessary to show
how his accident occurred. He also claims that medical testimony concerning his temporary
loss of memory following the accident and later recovery of it was necessary to preserve his
credibility. Due to the bifurcation of trials, the trial court allowed only limited medical
testimony. These limitations resulted in a cursory, almost cryptic, presentation of Verner's
injuries. In its final argument, Nevada Power used this restricted review of Verner's injuries to
challenge the limited medical testimony. Nevada Power argued that Verner did not recover
from his amnesia, but had, instead, fabricated his testimony regarding how the accident took
place.
[Headnotes 1-3]
To justify a separate trial on the issue of liability, the issue of liability must be separate and
distinct from the issue of damages. State ex rel. Perry v. Sawyer, 500 P.2d 1052 (Or. 1972).
Where the nature of the injuries has an important bearing on the issue of liability, a separate
trial should not be ordered. Williams v. Adams, 362 N.Y.S.2d 68 (N.Y. 1974). Further, the
movant must demonstrate that a bifurcated trial is clearly necessary to lessen costs and
expedite the litigation. Perry, supra. The trial court bifurcated the trial as an economy of
time, although it was asserted that the damage portion would only have taken approximately
two additional days of trial time. More significantly, the issues of liability and damages were
inextricably interrelated. The bifurcation of trial prejudiced Verner's ability to present his case
on the issue of liability. The district court abused its discretion in ordering separate trials.
Perry, supra; Williams, supra. See also, Brown v. General Motors Corporation, 407 P.2d 461
(Wash. 1965). We reverse and remand for a nonbifurcated trial.
On appeal, Verner also asserts that the district court erred in its refusal to give Proposed
Instruction I.5 This instruction is essentially the instruction a district court is required to
give pursuant to NRS 41.141{2){a), if requested.6 The district court recognized that NRS
41.141{2){a) was mandatory but considered the instruction unnecessary in a bifurcated
trial.
____________________

4
NRCP 42(b) provides:
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive
to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or
third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims,
third-party claims, or issues, always preserving inviolate the right of trial by jury.
refusal to give Proposed Instruction I.
5
This instruction is essentially the instruction a district
court is required to give pursuant to NRS 41.141(2)(a), if requested.
6
The district court
recognized that NRS 41.141(2)(a) was mandatory but considered the instruction unnecessary
in a bifurcated trial. Nevada Power argues that this instruction is required where there is a
general verdict, but cannot be given where, as in the instant case, a special verdict is used. We
disagree.
[Headnotes 4, 5]
The language in NRS 41.141(2) is plain and unambiguous. A reading of NRS 41.141
makes clear that no limitation is imposed upon this requirement either because of a bifurcated
trial or a special verdict.
____________________

5
Proposed Instruction I reads as follows:
The Plaintiff may not recover damages if his contributory negligence has contributed more to his
injury than the negligence of the Defendant. However, if the Plaintiff is negligent, the Plaintiff may still
recover a reduced sum so long as his contributory negligence was not greater than the negligence of the
Defendant.
You shall return a special verdict indicating the percentage of negligence attributable to each party.
The percentage of negligence attributable to the Plaintiff shall reduce the amount of such recovery by
the proportionate amount of such negligence and the reduction will be made by the Court.

6
1. In any action to recover damages for death or injury to persons or for injury to property in which
contributory negligence may be asserted as a defense, the contributory negligence of the plaintiff or his
decedent does not bar a recovery if that negligence was not greater than the negligence or gross
negligence of the person or persons against whom recovery is sought, but any damages allowed must be
diminished in proportion to the amount of negligence attributable to the person seeking recovery or his
decedent.
2. In those cases, the judge may and when requested by any party shall instruct the jury that:
(a) The plaintiff may not recover if his contributory negligence or that of his decedent has contributed
more to the injury than the negligence of the defendant or the combined negligence of multiple
defendants.
(b) If the jury determines the plaintiff is entitled to recover, it shall return:
(1) By general verdict the total amount of damages the plaintiff would be entitled to recover
without regard to his contributory negligence.
(2) A special verdict indicating the percentage of negligence attributable to each party.
(3) By general verdict the net sum determined to be recoverable by the plaintiff.
3. Where recovery is allowed against more than one defendant in such an action, the defendants are
jointly and severally liable to the plaintiff, except that a defendant whose negligence is less than that of
the plaintiff or his decedent is not jointly liable and is severally liable to the plaintiff only for that portion
of the judgment which represents the percentage of negligence attributable to him.
special verdict. The legislative directive is clear: the district court must, upon request, give
such an instruction to the jury. City of Las Vegas v. Macchiaverna, 99 Nev. 256, 661 P.2d
879 (1983); Peair v. Home Ass'n of Enola Legion No. 751, 430 A.2d 665 (Pa. 1977). The
district court's refusal to do so violated NRS 41.141(2)(a) and constitutes error. We decline to
hold this error harmless, since any determination as to what the jury would have decided had
it been properly instructed would be pure speculation. On remand, the district court is
instructed to give to the jury, upon request, an instruction based upon NRS 41.141(2)(a).
[Headnotes 6-8]
Verner further contends that the district court erred when it admitted into evidence a copy
of NRS 704.800 which makes it unlawful to tap into a power line with the intent to steal
power.
7
The district court correctly ruled that the statute did not create a standard of care
relevant to the case at bar and refused to instruct the jury that a violation of NRS 704.800 was
negligence per se. See Sagebrush Ltd. v. Carson City, 99 Nev. 204, 660 P.2d 1013 (1983).
But the district court did allow a copy of the statute to be admitted into evidence as relevant
to the issue of foreseeability. This was error. Any probative value was outweighed by its
prejudicial effect. See, Allen v. Blanks, 384 So.2d 63 (Miss. 1980). On remand, the court is
instructed to exclude the admission of NRS 704.800.
Accordingly, we conclude that the district court abused its discretion in ordering separate
trials on the issues of liability and damages. We reverse and remand for a new, nonbifurcated
trial consistent with this opinion.
Springer, C. J., Gunderson, Steffen, and Young, JJ., and Griffin, D. J.,
8
concur.
____________________

7
NRS 704.800 provides, in pertinent part
1. Every person who willfully, and with intent to injure or defraud:
(a) Opens, breaks into, taps or connects with any pipe, flume, ditch, conduit, reservoir, wire, meter or
other apparatus belonging to or used by any water, gas, irrigation, electric or power company or
corporation, or belonging to or used by any other person, persons or association, or by the state, or by any
county, city, district or municipality, and takes and removes therefrom or allows to flow or be taken or be
removed therefrom any water, gas, electricity or power belonging to another . . . is guilty of a public
offense, as prescribed in NRS 193.155, proportionate to the value of the property removed. . . .

8
The Honorable Michael R. Griffin, Judge of the First Judicial District, was designated by the Governor to sit
in place of Justice John C. Mowbray, who voluntarily disqualified himself. Nev. Const., art. 6, 4.
____________
101 Nev. 557, 557 (1985) Pacific Pools Constr. v. McClain's Concrete
PACIFIC POOLS CONSTRUCTION COMPANY, Appel-
lant, v. McCLAIN'S CONCRETE, INC., Respondent.
No. 15191
September 30, 1985 706 P.2d 849
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
Subcontractor filed suit for breach of contract. The district court awarded summary
judgment in favor of subcontractor, and contractor appealed. The Supreme Court held that:
(1) the issue of interest on debt was genuine issue of material fact, precluding summary
judgment, and (2) Internal Revenue Service penalties were unforeseeable damages and
therefore trial court erred in awarding summary judgment for that amount.
Johnson, Pilkington & Reynolds, and George W. Foley, Jr., Las Vegas, for Appellant.
Apple, Zervas & Gewerter, and Gary D. Watson, Las Vegas, for Respondent.
1. Judgment.
Whether contractor had agreed to 18 percent annual percentage rate on amounts due under contract to
subcontractor was genuine material issue of fact, precluding summary judgment for subcontractor on its
claim for prejudgment interest. NRS 99.040.
2. Interest.
Subcontractor's invoices to contractor which indicated monthly interest of 1.5 percent were insufficient to
satisfy requirement that there be express written agreement fixing rate of interest agreed upon by contractor
and subcontractor so as to entitle subcontractor to receive more than 12 percent prejudgment interest on
amounts due under subcontract. NRS. 99.040.
Amount withheld from employees' wages for taxes immediately becomes property of federal government
and employer holds it as trustee for federal government. 26 U.S.C.A. 3402.
Presumption arises on payment of wages by employer that appropriate amount has actually been withheld
for income taxes. 26 U.S.C.A. 3402.
If employer's funds are insufficient to pay its employees' net wages and to pay proper withholding taxes,
employer must prefer United States over employees and reduce amount of wages paid by an amount
sufficient to leave funds for payment of withholding taxes. 26 U.S.C.A. 3402.
6. Damages.
Internal Revenue Service penalties imposed upon subcontractor for failure to pay withholding tax
from employees' wages were unforeseeable element of damages resulting from
contractor's failure to pay amounts due under subcontract and were not direct result
of contractor's breach and, thus, could not be recovered by subcontractor.
failure to pay withholding tax from employees' wages were unforeseeable element of damages resulting
from contractor's failure to pay amounts due under subcontract and were not direct result of contractor's
breach and, thus, could not be recovered by subcontractor.
OPINION
Per Curiam:
This is an appeal from a summary judgment. We have determined that the grant of
summary judgment was partially improper as a matter of law. Accordingly, we affirm in part,
reverse in part, and remand with instructions.
The following facts are not disputed. Respondent McClain's Concrete, Inc. (McClain)
performed subcontracting work for appellant Pacific Pools Construction Company (Pacific)
from 1977 to 1981. Pacific failed to compensate McClain for the work done between August
and November, 1981. In March of 1982, McClain contacted the State Board of Contractors to
obtain assistance in collecting the debt. With the help of the Board's intervention, the parties
reached a new agreement that provided that the debt would be paid in monthly installments of
at least $500.00. Pacific made partial payment, but in August, 1982, the outstanding debt,
according to McClain, was still in excess of $11,000.00.
1
Consequently, McClain
commenced an action in district court to recover the unpaid balance. On June 29,1983, the
district court granted summary judgment against Pacific and awarded McClain $18,041.01 in
damages. The three elements making up the damages award are as follows: (1) $7,334.81, the
principal amount of the debt; (2) $3,888.31, interest at 18 percent per annum through August
16, 1982, the date of the filing of the complaint; and (3) $6,817.89, the amount of tax
penalties imposed against McClain for its failure to pay its federal withholding taxes.
2
The
district court also awarded McClain attorney's fees and interest on the entire judgment at 12
percent per annum beginning on August 16, 1982, the date of the filing of the complaint.
Pacific appealed.
____________________

1
This figure includes the principal amount of the outstanding debt plus interest at 1.5 percent per month, or
18 percent per annum.

2
These figures do not match the figures quoted in the briefs on appeal. However, the figures quoted in the
briefs do not add up to the amount awarded by the district court. Although the district court did not indicate in its
order how the total damage award of $18,041.01 was computed, it appears that the district court relied on the
affidavit of Patrick C. McClain, President of McClains's Concrete, Inc., as a basis for the award. The figures
quoted in the text are taken from that affidavit. On remand the district court is instructed to make a clear
determination of the precise amounts to be awarded as principal, interest, or other damages.
On appeal, Pacific admits that it owes McClain an outstanding debt of $7,334.81. Further,
Pacific does not challenge the award of attorney's fees or the interest charged against the
judgment. Accordingly, these portions of the judgment will be affirmed. However, Pacific
contends that the district court erred by awarding McClain interest on the principal debt
amount at 18 percent per annum and by awarding McClain the amount of the tax penalties
imposed by the Internal Revenue Service because of McClain's failure to pay its withholding
taxes. We agree.
Summary judgment is appropriate only where no genuine issue of fact remains for trial and
one party is entitled to judgment as a matter of law. NRCP 56(c); see Zuni Constr. Co. v.
Great Am. Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970). Further, it is well established that a
litigant has the right to a trial where the slightest doubt as to the facts exists. Nehls v.
Leonard, 97 Nev. 325, 630 P.2d 258 (1981). In addition, in deciding whether summary
judgment is appropriate, the evidence must be viewed in the light most favorable to the party
against whom summary judgment is sought, and the factual allegations of that party must be
presumed correct. See Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075
(1983). Finally, the burden of establishing the non-existence of any genuine issue of fact is on
the party moving for summary judgment. Hoffmeister Cabinets of Nev. v. Bivins, 87 Nev.
282, 486 P.2d 57 (1971). With this standard in mind, we turn to Pacific's contentions.
Pacific first contends that the district court could not find as a matter of law that McClain
was entitled to 18 percent prejudgment interest on the outstanding debt. We note initially that
the district court did not expressly award prejudgment interest at the rate of 18 percent per
annum on the outstanding debt. Instead, $3,888.31 of the amount awarded as damages
represents interest charged by McClain on its invoices at 1.5 percent per month from the time
monies became due until August 16, 1982, the date of the filing of the complaint. The only
interest award made by the district court was an award of interest at 12 percent per annum on
the judgment from and after August 16, 1982. This award is not challenged by Pacific.
[Headnote 1]
Pacific argues that it was improper for the damages award to include an amount which
represents interest at 18 percent per annum because Pacific did not agree to an 18 percent
interest charge. McClain asserts, on the other hand, that the 18 percent interest charge
represents the common custom and usage in the construction industry, and that the district
court, therefore, could find as a matter of law that McClain was entitled to 18 percent interest.
NRS 99.040 provides: When there is no express contract in writing fixing a different rate of
interest, interest must be allowed at the rate of 12 percent per annum. . . ."
interest must be allowed at the rate of 12 percent per annum. . . . (Emphasis added.)
McClain admits that the written agreement of the parties does not include a provision for an
18 percent per annum interest charge. However, McClain argues that invoices sent to Pacific
had included the 1.5 percent per month charge and that Pacific had acknowledged receipt of
the invoices. Thus, McClain contends that these invoices evidence an agreement between the
parties to the 18 percent interest charge. In his affidavit in opposition to the motion for
summary judgment, however, Pacific's president denied that Pacific had agreed to the 18
percent interest charge.
[Headnote 2]
Although it may be argued, as Pacific does, that this difference of opinion is a sufficient
material issue of fact to preclude the granting of summary judgment, we conclude as a matter
of law that under the circumstances of this case McClain's invoices are insufficient to satisfy
the written contract requirement of NRS 99.040. Consequently, McClain is only entitled to 12
percent interest on the amounts owed from the time they became due regardless of the
custom and usage in the industry. See NRS 99.040. Therefore, that portion of the judgment
that represents prejudgment interest at the rate of 18 percent per annum must be reversed.
However, because it is impossible on the record before us to determine the amount of interest
due, we must remand the case to the district court for that determination.
Pacific next contends that McClain was not entitled as a matter of law to receive as
damages the amount of tax penalties assessed against McClain for McClain's failure to pay its
withholding taxes. McClain asserts that because Pacific failed to pay its bills, McClain was
left short of cash and could not meet its federal withholding tax obligations. As a result,
penalties were imposed on McClain by the IRS. McClain further asserts that Pacific knew
that McClain needed the amounts owed to meet its tax burden and that, therefore, the
penalties were a foreseeable result of Pacific's breach of contract. McClain's reasoning is
unsound.
[Headnotes 3-6]
Under I.R.C. 3402 (1954), a duty is imposed on all employers to withhold from the
wages of their employees an amount to be determined in accordance with the IRS regulations
as income taxes. The amount withheld immediately becomes the property of the federal
government and the employer holds it as trustee for the federal government. United States v.
Hill, 368 F.2d 617 (5th Cir. 1966); P. C. Pfeiffer Co. v. The Pacific Star, 183 F.Supp. 932
(E.D.Va. 1960). These amounts must be remitted to the federal government, and the failure to
do so is a violation of federal law. Further, a presumption arises on the payment of wages by
an employer that an appropriate amount has actually been withheld.
wages by an employer that an appropriate amount has actually been withheld. United States v.
Abrahams, 312 F.Supp. 1035 (S.D.N.Y. 1970). Failure to actually withhold the appropriate
funds is a violation of federal law. In addition, if an employer's funds are insufficient to pay
its employees' net wages and to pay proper withholding taxes, the employer must prefer the
United States over its workers and reduce the amount of wages paid by an amount sufficient
to leave funds for payment of the withholding taxes. Sorenson v. United States, 521 F.2d 325
(9th Cir. 1975). Therefore, no penalties could have been imposed upon McClain for failure to
pay withholding taxes unless McClain directly violated federal tax law. We conclude,
therefore, as a matter of law, that Pacific could not be expected to have foreseen that McClain
would violate federal law, and that the tax penalties were not a direct result of Pacific's
breach. See Daniel v. Hilton Hotels Corp., 98 Nev. 113, 115-16, 642 P.2d 1086, 1087 (1982).
3
Accordingly, it was error for the district court to have granted summary judgment in favor
of McClain on this issue.
Having concluded as a matter of law that summary judgment was improperly granted with
respect to the two items discussed above, we reverse the judgment of the district court on
these two issues and remand the case to the district court for a determination of the amount of
prejudgment interest that should be awarded. In all other respects, the judgment is affirmed.
Springer, C. J., Mowbray, Gunderson, and Steffen, JJ., and Zenoff, S. J.,
4
concur.
____________________

3
McClain argues that a new agreement between the parties was reached as a result of the State Board of
Contractors' intervention and that this new agreement was an accord. Because there has been no satisfaction,
McClain argues that the new agreement is an executory accord. The point of this argument seems to be that at
least at the time of the alleged accord, the tax penalties were foreseeable damages in the event of a breach. We
disagree. The conclusion that the tax penalties were not foreseeable as a matter of law applies regardless of
whether McClain's suit is based on the original contract or the new agreement.

4
The Governor designated the Honorable David Zenoff, Senior Justice, to participate in this case. Nev.
Const., art. 6 4.
____________
101 Nev. 562, 562 (1985) Miranda v. State
ROBERTO HERNANDEZ MIRANDA, Appellant, v.
No. 14553
October 7, 1985 707 P.2d 1121
Appeal from judgment of conviction of first degree murder with the use of a deadly
weapon, robbery with the use of a deadly weapon and grand larceny, and from the imposition
of the death penalty; Eighth Judicial District Court, Clark County, Addeliar D. Guy, Judge.
Defendant was convicted in the district court of first degree murder with use of deadly
weapon, robbery with use of deadly weapon, and grand larceny, and he appealed. The
Supreme Court, Steffen, J., held that: (1) witness' statements were not of an inherently
trustworthy nature and were inadmissible; (2) defendant was not prejudiced by error in failure
to admit transcribed statements of witness; (3) sufficient evidence existed for state's use of
aggravating circumstance; (4) defendant was not prejudiced by prosecutor's reference to his
nationality and mode of entry into country or by reference to executive pardon; and (5)
imposition of death sentence was not disproportionate.
Affirmed.
Zenoff, Sr. J., dissented.
Morgan D. Harris, Public Defender, and Thomas W. Rigsby, Deputy Public Defender,
Clark County, for Appellant.
1. Criminal Law.
Unavailable declarant's statements to police officer indicating that he had not gone to victim's home with
defendant and another and that he knew nothing of the murder were not of an inherently trustworthy nature
and were not made under special circumstances which might have given rise to strong assurances of
accuracy but were made to police at a time when declarant was a potential suspect in crime; thus,
statements were inadmissible. NRS 51.315, subd. 1.
2. Criminal Law.
Business records exception to hearsay rule generally permits a party to introduce
into evidence reports made during regularly conducted course of business. NRS 51.315, subd. 1.
3. Criminal Law.
Business records exception to hearsay rule does not itself permit party to introduce into evidence actual
contents of out-of-court statement given to police by witness to crime concerning events of the crime itself.
NRS 51.135, subd. 1.
4. Criminal Law.
Any statement given by witness to police officer is hearsay and must be independently admissible under
separate and distinct exception to hearsay rule.
5. Criminal Law.
Transcribed statements witness made to police were not admissible under business records exception to
hearsay rule.
6. Criminal Law.
Witness' out-of-court statements to police which were inconsistent with his trial testimony were
admissible as substantive evidence under statutory exception [NRS 51.035, subd. 2(a)] to hearsay rule
which permits introduction of prior inconsistent statements made by a testifying witness; however, failure
to admit those statements did not prejudice defendant since the statements would not have served to
exculpate defendant, jury was made fully aware of inconsistencies in question, and defendant was given
sufficient opportunity to impeach witness' credibility in that regard.
7. Criminal Law.
The prosecution is not required to present direct evidence of defendant's state of mind as it existed during
commission of crime, jury may infer existence of particular state of mind from circumstances disclosed by
evidence.
8. Homicide.
Circumstantial evidence that defendant had gone to victim's home with a pair of gloves with intent to
avoid leaving fingerprints behind him when he searched victim's home for valuables and that defendant was
actually found in home searching for valuables supported conclusion that defendant had gone to victim's
home intending to rob him and that murder had occurred during the course of robbery; thus, sufficient
evidence existed for state's use of aggravating circumstance in an attempt to persuade jury to impose death
sentence. NRS 200.030, subd. 4, 200.033, 200.033, subd. 4.
9. Homicide.
Underlying felony in felony-murder case does not merge with murder conviction; therefore, it was
permissible for the state to use underlying felony as an aggravating circumstance in penalty phase of trial.
10. Criminal Law.
Prosecutor's reference at penalty phase of trial to defendant's nationality and mode of entering the
country, and to executive pardon, did not rise to the level of plain error mandating new penalty hearing.
11. Criminal Law.
The jury may be instructed on possibility of executive clemency without offending the Constitution or
statutory principles.
12. Criminal Law.
Failure of district court to submit special verdict form to jury, without more, did not constitute reversible
error.
13. Homicide.
Considering that defendant violently stabbed victim and thereafter, wearing gloves, went about taking
victim's property, imposition of death sentence was not disproportionate to penalty imposed in similar cases
in state and was not imposed under the influence of passion, prejudice or any arbitrary factor.
OPINION
Following a jury trial, appellant was convicted of one count each of first degree murder
with the use of a deadly weapon, robbery with the use of a deadly weapon and grand larceny.
Following a separate penalty hearing, the jury imposed the death sentence on appellant for his
first degree murder conviction. Appellant now appeals from the judgment of conviction and
from the imposition of the death sentence. For the reasons set forth below, we affirm the
judgment of conviction and the imposition of the death sentence.
THE FACTS
At Miranda's jury trial, Fernando Cabrera, an acquaintance of Miranda, testified that on the
evening of August 8, 1981, Miranda asked him for a ride to the victim's home in Las Vegas.
According to Fernando, he drove Miranda to the victim's home, and waited in his car in front
of the victim's home for approximately one hour before entering the victim's home. When
Fernando entered the home, he saw the victim's body on the floor, and saw that appellant was
covered with blood and was holding a knife.
According to Fernando, when he entered the home Miranda advised him that he had gone
to the victim's home for drugs and that they tricked him. Miranda then told Fernando to
help him search the house for valuables. Because he apparently feared Miranda, Fernando
helped him search the house, and helped Miranda take a television set and stereo from the
victim's home. The two men also took a watch and ring from the victim, which Miranda told
Fernando to keep. Fernando testified that Miranda was wearing gloves while they searched
the victim's home.
Fernando also testified that Miranda approached him the next day, and again asked him for
a ride to the victim's home, this time to take the victim's truck and to dispose of some
incriminating evidence Miranda thought might have been left in the home. Fernando drove
Miranda to the victim's home, along with a third party, Emmett Anderson, whom the state
was unable to locate prior to trial. Apparently because Miranda did not know how to drive a
manual transmission, Fernando drove the truck to Fernando's apartment, with Miranda and
Anderson following behind him in Fernando's car.
The victim's body was found on August 10, 1981, by friends of the victim, who
immediately called the police. All witnesses agreed that the victim's apartment was in a state
of disarray, and several witnesses testified that various items of the victim's property were
missing. Police determined that the victim had been stabbed in the chest by a large knife
and had died as a result of a punctured lung sometime thereafter.
stabbed in the chest by a large knife and had died as a result of a punctured lung sometime
thereafter.
Following the above events, Miranda apparently fled to Los Angeles. David Cabrera
testified at Miranda's trial that while Miranda was in Los Angeles, he saw what appeared to
be a bloodstained shirt in Miranda's suitcase. David Cabrera also testified that Miranda told
him he left Las Vegas because he had killed a man during the course of a narcotics
transaction.
On his own behalf, Miranda presented several witnesses who testified that Fernando
Cabrera had told them that Fernando had actually been the one who committed the murder.
Several of Miranda's witnesses also testified that they had seen Fernando in blood-stained
clothing shortly after the murder occurred.
Following the guilt phase of Miranda's trial, the jury found him guilty of one count each of
first degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon
and grand larceny. At the penalty phase of Miranda's trial, the jury sentenced Miranda to
death for the first degree murder conviction. The district court also sentenced Miranda to two
consecutive fifteen year prison sentences for the conviction of robbery with the use of a
deadly weapon, and a ten year concurrent sentence for the grand larceny conviction. Miranda
now appeals from each of these convictions and sentences.
THE GUILT PHASE
Miranda asserts that the district court erred at the guilt phase of his trial by refusing to
admit into evidence an out-of-court statement made by Emmett Anderson, the person who
Fernando Cabrera claims accompanied Miranda and Fernando to the victim's home the day
after the murder. Anderson was not available to testify at trial, and Miranda therefore
attempted to introduce into evidence a statement made by Anderson to the police prior to trial
indicating that he had not gone to the victim's home with Miranda and Cabrera and that he
knew nothing of the murder. The district court refused to admit Anderson's statements on the
ground that they constituted inadmissible hearsay.
At trial and again on appeal, Miranda argues that the district court should have admitted
Anderson's statements pursuant to NRS 51.315(1). This statute permits a district court to
admit the out-of-court statement of a non-testifying party, when the declarant is not available
to testify at trial and when the nature of the statement itself and/or the special circumstances
under which it was made offer strong assurances of accuracy. See also Woods v. State, 101
Nev. 128, 696 P.2d 464 (1985); Johnstone v. State, 92 Nev. 241, 548 P.2d 1362 (1976).
[Headnote 1]
Anderson's statements, however, were not of an inherently trustworthy nature and were
not made under special circumstances which might have given rise to strong assurances
of accuracy.
trustworthy nature and were not made under special circumstances which might have given
rise to strong assurances of accuracy. The statements consisted of Anderson's denial of his
own involvement in criminal activity, and were made to police at a time when Anderson was
a potential suspect in the crime. Accordingly, the statements were self-serving in nature and
unreliable for purposes of admission under NRS 51.315(1). The district court therefore did
not err in excluding these statements.
Miranda also contends that the district court erred in excluding from evidence certain
transcribed statements Fernando Cabrera made to police prior to trial, many of which were
inconsistent with Fernando's trial testimony. The district court excluded the transcribed
statements on the ground that they constituted inadmissible hearsay.
[Headnotes 2-5]
At trial and again on appeal, Miranda contends that the district court should have admitted
the transcribed statements under the business records exception to the hearsay rule
contained in NRS 51.135(1).
1
The business records exception to the hearsay rule generally
permits a party to introduce into evidence reports made during the regularly conducted course
of business. Therefore, the police report itself, which was made when Fernando gave his
statement to police, would have been admissible as substantive evidence to demonstrate such
things as the date on which the report was made or the fact that the statement was actually
taken. See United States v. Smith, 521 F.2d 957, 964 (D.C. Cir. 1975). Nevertheless, the
business records exception does not itself permit a party to introduce into evidence the actual
contents of an out-of-court statement given to police by a witness to a crime concerning the
events of the crime itself. Id.; see Frias v. Valle, 101 Nev. 219, 698 P.2d 875 (1985). Any
statement given by a witness to a police officer is itself hearsay and must itself be
independently admissible under a separate and distinct exception to the hearsay rule. See
United States v. Smith, supra; see also NRS 51.365 (hearsay included within hearsay is not
excluded under the hearsay rule if each part of the statement is independently admissible
under an exception to the hearsay rule).
____________________

1
NRS 51.135(1) provides as follows:
1. A memorandum, report, record or data compilation, in any form, of acts, events, conditions,
opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with
knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian
or other qualified witness, is not inadmissible under the hearsay rule unless the source of information or
the method or circumstances of preparation indicate lack of trustworthiness.
[Headnote 6]
Although Miranda failed to make this argument either at trial or in his briefs on appeal, to
the extent that Fernando's out-of-court statements to police were inconsistent with his trial
testimony, they were independently admissible as substantive evidence under NRS
51.035(2)(a), the statutory exception to the hearsay rule which permits the introduction of
prior inconsistent statements made by a testifying witness.
2
See also Levi v. State, 95 Nev.
746, 748-49, 602 P.2d 189 (1979). Accordingly, the district court should have admitted any
transcribed statements made by Fernando that were inconsistent with his trial testimony.
We conclude, however, that Miranda was not prejudiced by this error. The prior
inconsistent statements given by Fernando Cabrera would not have served to exculpate
Miranda. Instead, the inconsistencies in question pertained primarily to the sequence of
events surrounding the commission of the offense; at best, Miranda might have used the
inconsistent statements to impeach Fernando's overall credibility as a witness. Miranda,
however, was given a full opportunity to accomplish this at his trial, when the district court
permitted him to extensively cross-examine Fernando concerning his prior inconsistent
statements. Accordingly, since the jury was made fully aware of the inconsistencies in
question and since Miranda was given a sufficient opportunity to impeach Fernando's
credibility in this regard, we conclude that Miranda was not prejudiced by the district court's
decision not to admit the actual transcribed statements.
We have reviewed Miranda's remaining contentions concerning the guilt phase of his trial
and conclude that they are without merit. Accordingly, we now turn to consider Miranda's
challenges to the penalty phase of his trial.
THE PENALTY PHASE
At the penalty phase of Miranda's trial, the state argued the existence of only one
aggravating circumstance in its attempt to persuade the jury to impose the death sentence. See
NRS 200.030(4).
3
Specifically, the state argued that the murder had been committed during
the course of a robbery.
____________________

2
NRS 51.035(2)(a) provides that:
Hearsay means a statement offered in evidence to prove the truth of the matter asserted unless:
. . .
2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is:
(a) inconsistent with his testimony. . . .

3
Every person convicted of murder in the first degree shall be punished:
been committed during the course of a robbery. See NRS 200.033(4).
4
The district court
subsequently instructed the jury on this aggravating circumstance, and the jury returned a
special verdict form indicating that it had bound the one aggravating circumstance to exist.
Miranda contends that the district court erred by permitting the jury to use the fact of the
robbery as an aggravating circumstance for two reasons. First, Miranda contends that the state
failed to present sufficient evidence that the murder was actually committed during the course
of the robbery. Miranda argues that all of the evidence presented at trial indicated that he
went to the victim's home for the sole purpose of consummating a drug transaction, and that
the murder occurred when the drug transaction failed. Miranda contends that the evidence
clearly established that he formulated the intent to rob the victim only after the murder had
already been completed. Miranda therefore reasons that the murder did not occur in the
course of the robbery itself and that the state should not have been permitted to use the
existence of the robbery as an aggravating circumstance. We disagree.
[Headnotes 7, 8]
The prosecution is not required to present direct evidence of a defendant's state of mind as
it existed during the commission of a crime, and the jury may infer the existence of a
particular state of mind from the circumstances disclosed by the evidence. See Larsen v.
State, 86 Nev. 451, 470 P.2d 417 (1970). The only direct evidence presented at Miranda's trial
concerning his intent was Miranda's own statements to Fernando Cabrera and David Cabrera
indicating that he went to the victim's home for the purpose of consummating a drug deal
and that he had somehow been tricked during the transaction. These statements, however,
were self-serving in nature and the jury was free to disregard them. See White v. State, 95
Nev. 881, 603 P.2d 1063 (1979) (credibility of a witness's testimony is within the exclusive
province of the jury).
The circumstantial evidence presented at Miranda's trial fully supported a conclusion that
Miranda had gone to the victim's home intending to rob him and that the murder had
occurred during the course of the robbery.
____________________
circumstances.

4
NRS 200.033 provides in part that:
The only circumstances by which murder of the first degree may be aggravated are:
. . .
4. The murder was committed while the person was engaged, alone or with others, in the commission
of or an attempt to commit . . . any robbery. . . .
supported a conclusion that Miranda had gone to the victim's home intending to rob him and
that the murder had occurred during the course of the robbery. Specifically, the jury could
have concluded that Miranda had gone to the victim's home with a pair of gloves with the
intent to avoid leaving fingerprints behind when he searched the victim's home for valuables.
Further, the jury could have inferred from the fact that Fernando Cabrera actually found
Miranda in the home searching for valuables, that Miranda had gone to the victim's home to
rob him and that the murder had occurred during the course of the robbery. Accordingly,
sufficient evidence existed for the state's use of this aggravating circumstance.
5

[Headnote 9]
Miranda alternatively contends that the state nevertheless should not have been permitted
to use the existence of the robbery as an aggravating circumstance, because the robbery had
been used as the underlying felony in the guilt phase of his trial to obtain his first degree
murder conviction under a felony-murder theory of guilt. As we recently held in Petrocelli v.
State, 101 Nev. 46, 692 P.2d 503 (1985), however, under Nevada law, the underlying felony
in a felony-murder case does not merge with the murder conviction, and it is therefore
permissible for the state to use the underlying felony as an aggravating circumstance in the
penalty phase of the defendant's trial.
Although we conclude that the district court did not err in permitting the jury to consider
this aggravating circumstance, we must still consider whether the jury improperly imposed
the death sentence under the influence of passion, prejudice, or any other arbitrary factor. See
generally Furman v. Georgia, 408 U.S. 238 (1972); Ybarra v. State, 100 Nev. 167, 679 P.2d
797 (1984); NRS 177.055(2). In this regard, Miranda primarily argues that the jury's
sentencing deliberations were tainted by two improper comments made by the prosecutor
during the prosecutor's closing arguments at the penalty phase of Miranda's trial.
[Headnote 10]
Miranda first contends that he was prejudiced by the prosecutor's reference to his
nationality and mode of entry into this country.
6
Second, Miranda argues that the prosecutor
committed misconduct by referring to Richard Nixon's pardon, thereby seeking to inflame
the passions and prejudices of the jury on the issue of executing clemency.7 In neither
instance did defense counsel interpose any objection to the prosecutor's remarks.
____________________

5
For similar reasons, we have rejected Miranda's contention that the evidence presented during the guilt
phase of his trial was not sufficient to support the jury's finding of guilt on the robbery count.

6
During voir dire of a venireman, defense counsel noted that Miranda was a Cuban who didn't speak English.
Moreover, he referred to the substantial unfavorable publicity about the immigration of Cubans into America
and stated he was sure the venireman had heard some bad things and hopefully
misconduct by referring to Richard Nixon's pardon, thereby seeking to inflame the passions
and prejudices of the jury on the issue of executing clemency.
7
In neither instance did
defense counsel interpose any objection to the prosecutor's remarks. While we do not
condone the prosecutor's comments or view them as model trial conduct, we are unpersuaded
that the comments rose to the level of plain error mandating a new penalty hearing.
Citing United States v. Frady, 456 U.S. 152, 163 n. 14 (1982, the U.S. Supreme Court in
United States v. Young, 470 U.S. ___, 105 S.Ct. 1038, 1047 (1985), declared that the plain
error exception to the contemporaneous objection rule is to be used sparingly, solely in those
circumstances in which a miscarriage of justice would otherwise result.' Moreover, the
Young court said that [r]eviewing courts are not to use the plain error doctrine to consider
trial court errors not meriting appellate review absent timely objectiona practice which we
have criticized as extravagant protection.' Id., 105 S.Ct. at 1047 (citation and footnote
omitted).
Turning first to the prosecutor's reference to Miranda having come to this country in a
flotilla, it may be argued fairly that defense counsel opened the subject during voir dire, and
in fact voiced to the venireman, who was retained as a juror, his hope that the venireman had
heard some good things as well as the bad concerning the migration of Cubans to this
country.
____________________
some good things on the subject. He then concluded by asking the question: Do you think because he is a
Cuban that he is any more likely to have committed a crime than you or I? The response, of course, was in the
negative. During the prosecutor's closing argument, he said, without objection:
Mr. Rigsby [defense counsel] made a great point during the voir dire of making sure that you would not
consider the fact that Roberto Hernandez Miranda is Cuban in your deliberationsand I don't think you
shouldbut only from an objective point of view, that being that he came over here on a flotilla, and he
hasn't been here too long, and in the short time that he has been here, he has amassed two
convictionsours and the burglary. That is all we know of Roberto Miranda's life. He certainly has a
significant criminal history for the length of time he has been here.

7
The record reflects the following remarks by the prosecutor after reading the jury instruction concerning
executive clemency:
Everybody knows that people can be pardonedlook at Richard Nixonbut not just by the
governor, it also includes actions by the State Board of Pardons in commuting or reducing a defendant's
punishment of life without the possibility of parole.
There is a department that considers these things. That department is the State Board of Pardons.
So I caution you not to shy away from something that you feel you should do simply because you feel
that the defendant can be taken off the streets for the rest of his natural life. That may or may not be the
case.
bad concerning the migration of Cubans to this country. The prosecutor did not expressly cast
the equivocal noun flotilla in an unfavorable light, but instead emphasized the degree of
Miranda's criminal activity during his brief period of residence in this country. Absent a trial
objection by defense counsel, we do not consider the context of the prosecutor's remark to be
prejudicial to the jury's deliberations.
[Headnote 11]
In considering the prosecutor's conduct in approaching the subject of executive clemency,
we note that Miranda's trial occurred prior to our decision in Petrocelli v. State, 101 Nev. 46,
692 P.2d 503 (1985). We therefore view this issue from the more broad perspective of
California v. Ramos, 463 U.S. 992 (1983), rather than the narrower constraints of Petrocelli.
Under either case, however, a jury may be instructed on the possibility of executive clemency
without offending constitutional or statutory principles. We expect, however, that the
prospective standard enunciated in Petrocelli will eliminate prosecutorial comments of the
type presented here. Under Petrocelli, a jury may be given the executive clemency instruction
authorized by that decision and none other. The latter instruction directs the jury not to
speculate as to whether a sentence once given may later be changed by operation of the
processes of executive clemency. In the instant case, the prosecutor sought to focus the jury's
attention on Miranda's prospects for executive clemency by referring to the presidential
pardon accorded Richard Nixon. While disapproving of the prosecutor's attempt to thus
influence the jury, we do not view the remark to be of sufficient gravity to warrant review
under the category of plain error. Defense counsel was not provoked to the point of objecting
to the comment and indeed, may have concluded that reference to the nonviolent behavior
involved in Nixon's pardon would provide the jury with no impetus for imposing the ultimate
sentence on Miranda's crime of violence and murder. Again, the Young court, quoting with
approval from a concurring opinion in Johnson v. United States, 318 U.S. 189, 202 (1943)
observed that:
In reviewing criminal cases, it is particularly important for appellate courts to relive
the whole trial imaginatively and not to extract from episodes in isolation abstract
questions of evidence and procedure. To turn a criminal trial into a quest for error no
more promotes the ends of justice than to acquiesce in low standards of criminal
prosecution. United States v. Young, supra, 105 S.Ct. at 1047.
In reviewing the record before us, we cannot perceive a fundamental lack of fairness or a
miscarriage of justice emanating from the foregoing prosecutorial improprieties.
the foregoing prosecutorial improprieties. Viewed from the vantage point of the entire
proceeding, Miranda was fairly tried.
[Headnote 12]
Miranda's position concerning the failure of the district court to submit a special verdict
form to the jury is without merit. We have previously held that the absence of such a form,
without more, does not constitute reversible error. See Nevius v. State, 101 Nev. 238, 699
P.2d 1053 (1985).
PROPORTIONALITY REVIEW
[Headnote 13]
Finally, we have reviewed Miranda's death sentence as required by NRS 177.055(2)(d) to
determine whether Miranda's death sentence is disproportionate to the penalty imposed in
similar cases in this state, considering both the crime and the defendant. We conclude that it
is not disproportionate.
The facts elicited at trial reveal that Miranda violently stabbed his victim and thereafter,
wearing gloves, went about taking the victim's property. Considering the circumstances of
Miranda's crime and the lack of any mitigating factor upon which a determination of
disproportionality might be based, we conclude that the sentence of death was fairly imposed.
See Wilson v. State, 101 Nev. 452, 705 P.2d 151 (1985); Snow v. State, 101 Nev. 439, 705
P.2d 632 (1985); Farmer v. State, 101 Nev. 419, 705 P.2d 149 (1985); McKenna v. State, 101
Nev. 338, 705 P.2d 614 (1985).
We further conclude that the sentence of death was not imposed under the influence of
passion, prejudice or any arbitrary factor, as revealed by the record. Accordingly, the sentence
of death is affirmed.
8

Springer, C. J., and Mowbray and Gunderson, JJ., concur.
Zenoff, Sr. J., dissenting:
I respectfully dissent.
I find the statement of facts and conclusions of law by the other members of the court
acceptable with regard to the guilt phase and some factors of the penalty phase. However, I do
not at all agree that the remarks of the prosecutor were not prejudicial even though we wish
they hadn't been said.
We have always realized that to a jury the influence of the government, as represented by
the prosecutor, is existent. It is seldom possible, however, to measure its strength, and it
would not be unfair to say that many people adopt the position that if the government
says it is so, it must be true.
____________________

8
The Governor designated The Honorable David Zenoff, Senior Justice, to participate in the decision of this
matter pursuant to Nev. Const., art. 6, 4. The Honorable Justice Cliff Young did not participate in the
disposition of this appeal.
seldom possible, however, to measure its strength, and it would not be unfair to say that many
people adopt the position that if the government says it is so, it must be true.
In a case such as this, we cannot assess the degree of that influence with any real accuracy.
One can only surmise that the prosecutor's references to the unpopular pardon of Richard
Nixon, and the tremendously unpopular influx of Cubans at the particular time, were reflected
in the prosecutor's presentation so that the buttering of his words was lost by his tone of
voice.
No trial can be perfect, but with a life at stake it would seem that a reduction of the penalty
by this court to life in prison without possibility of parole would be more appropriate.
____________
101 Nev. 573, 573 (1985) Jones v. State
ROBERT CHARLES JONES, Appellant, v. THE
No. 12844
October 17, 1985 707 P.2d 1128
Appeal from judgment of conviction of first degree murder and imposition of the death
penalty following jury trial. Eighth Judicial District Court, Clark County; James A. Brennan,
Judge.
Defendant was found guilty in the district court of first degree murder and sentenced to
death. Defendant appealed. The Supreme Court held: (1) failure to give Carter instruction
regarding defendant's failure to testify was harmless beyond a reasonable doubt; (2)
prosecutorial misconduct involving appeal to jury to be fair to victim was not prejudicial; (3)
trial court did not err in admitting testimony of victims of defendant's prior felonious assaults
at penalty phase of trial; and (4) jury may have imposed death sentence arbitrarily and under
influence of passion.
Judgment of conviction affirmed; death sentence vacated and cause remanded for
new penalty hearing.
Jeffrey D. Sobel, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, James
Tufteland, Deputy, Douglas McCarthy, Deputy, and Scott S. Mitchell, Deputy, Las Vegas, for
Respondent.
1. Criminal Law.
Defendant demonstrated good cause for failing to request a cautionary instruction regarding his failure to
testify, where at time of defendant's trial such a request would have been inconsistent with
current law.
101 Nev. 573, 574 (1985) Jones v. State
ant's trial such a request would have been inconsistent with current law. NRS 175.181, subd. 1.
2. Criminal Law.
Failure to give Carter instruction consisting of cautionary instruction regarding defendant's failure to
testify was harmless error, where evidence of defendant's guilt was overwhelming, only real dispute
centered on degree of defendant's intoxication upon which jury was adequately instructed, and substantial
evidence existed to support finding that defendant was capable of premeditation.
3. Criminal Law.
Prosecutorial misconduct can and will result in reversal of convictions when it denies defendants their
right to fair trial.
4. Criminal Law.
Prosecutorial misconduct consisting of remark to jury at conclusion of guilt phase of trial pleading with
jury to be fair to victim was harmless, where remark was immediately objected to and ordered stricken
from record, and evidence of defendant's guilt was overwhelming.
5. Criminal Law.
Trial court did not err in admitting testimony from victims of defendant's three prior felonious assaults at
penalty phase of trial, even though defendant offered to stipulate to the convictions, where testimony was
relevant to defendant's character.
6. Criminal Law.
Although defendant's participation in drafting of challenged instructions would ordinarily preclude
appellate review, reviewing court may hear issues not raised below in appropriate cases.
7. Criminal Law.
In a capital case where record is sufficiently developed to provide an adequate basis for review and to
determine that fundamental rights are implicated, it is appropriate to hear a constitutional question for first
time on appeal.
8. Criminal Law.
State may not misinform jurors about the possibility of clemency in death sentences and jury may not be
misled into believing that commutation of a death sentence is impossible.
9. Criminal Law.
Jury may have imposed death sentence arbitrarily and under influence of passion where prosecutor
misinformed jury that pardons board did not have power to commute a death sentence and hence may have
misled jury, and therefore case was remanded for new penalty hearing before a newly empaneled jury.
OPINION
Per Curiam:
A jury found Robert Jones guilty of first degree murder and sentenced him to death. Jones
challenges both the conviction and the imposition of the death sentence in this appeal. For the
reasons set forth below, we affirm the conviction but set aside the death sentence and remand
for a new penalty hearing.
101 Nev. 573, 575 (1985) Jones v. State
THE FACTS
In the early hours of September 29, 1978 an argument erupted in the Chy Inn Bar between
Jones and Rayfield Brown. Another bar patron, Bobby Lee Robinson, testified that he tried to
put an end to the argument by buying everybody a drink. Jones picked up the bottle of vodka
Robinson had purchased for him, drank the contents, and then handed the bottle to Robinson.
Robinson put the bottle back on the bar counter and moved away to play some records.
Approximately three minutes later Jones walked out of the bar, returned with a handgun,
pointed it to Brown's head and fired the gun. Brown died shortly thereafter of the gunshot
would to the head.
Jones left the bar before police arrived. He returned to his uncle's house, where he resided,
and told a cousin that he had shot a man at a bar. Jones attempted to flee to Massachusetts by
bus but was arrested enroute in Vail, Colorado.
The degree of Jones' intoxication was disputed during the trial. Defense counsel argued
that Jones could not be guilty of first degree murder because he was severely intoxicated at
the time of the shooting. Jones' uncle testified that Jones was intoxicated at 12:30 a.m.,
several hours before the confrontation at the bar. Another defense witness testified that Jones
was stumbling over shrubbery and appeared to be drunk at about 6:00 a.m., approximately
one to two hours after the shooting. Eyewitnesses to the murder testified that Jones' gait and
speech were normal, and that he did not appear drunk. The evidence also indicated that Jones
managed to bury the gun and walk home via an inconspicuous route, indicating that Jones
was capable of premeditating the murder.
After the jury found Jones guilty of first degree murder, the prosecutor presented evidence
of Jones' previous convictions at the penalty hearing as aggravating circumstances warranting
the imposition of the death penalty.
Jones offered evidence in mitigation from his mother and Clark County jail officials.
Jones' mother testified that he had had trouble in school, was illiterate, had a low I.Q., and
that he offered to donate his kidney when hers failed. According to jail personnel, Jones had
been a model prisoner during his incarceration before trial. After a brief deliberation the jury
sentenced Jones to death.
THE GUILT PHASE
The Cautionary Instruction
Jones first contends that the district court prejudicially erred in not giving a cautionary
instruction that no inference could be drawn from his failure to testify.
101 Nev. 573, 576 (1985) Jones v. State
drawn from his failure to testify. State trial courts have a constitutional obligation to give a
cautionary instruction, upon proper request, to minimize the danger that the jury will give
evidentiary weight to a defendant's failure to testify. Carter v. Kentucky, 450 U.S. 288, 305
(1981). Jones did not request a cautionary instruction, nor did he request a related instruction
authorized by NRS 175.181(1).
Jones argues that a Carter violation occurred at his trial despite his failure to request the
cautionary instruction. He contends that he was prevented from requesting a cautionary
instruction by NRS 175.181(1) which the trial judge read to him while advising him of his
right not to testify. NRS 175.181(1) provides:
No instruction shall be given relative to the failure of the person charged with the
commission of crime or offense to testify, except, upon the request of the person so
charged, the court shall instruct the jury that, in accordance with a right guaranteed by
the constitution, no person can be compelled, in a criminal action, to be a witness
against himself.
We have previously recognized the futility of objecting to an instruction whose validity
has been consistently upheld. See St. Pierre v. State, 96 Nev. 887, 620 P.2d 1240 (1980). In
St. Pierre we cited with approval federal authority which excused the failure to request jury
instructions which, at the time of . . . trial, would have been inconsistent with the law as it
then existed. See United States v. Wanger, 426 F.2d 1360 (9th Cir. 1970); St. Pierre, 96
Nev. at 892. We therefore proceed to analyze this issue under St. Pierre's two prong analysis
focusing on (1) whether Jones had good cause for failing to request the cautionary instruction
and (2) whether Jones has suffered prejudice to his substantial rights.
[Headnote 1]
Jones has demonstrated good cause for his failure to request the instruction. Until Carter
compelled state courts to give a cautionary instruction, if requested, we consistently held that
an instruction elaborating on the language of NRS 175.181 was properly rejected. See
Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976); McNeeley v. State, 81 Nev. 633, 409
P.2d 135 (1965). Jones' failure to request the instruction was therefore caused by firmly
established caselaw which suggested the futility of such a request. As we stated in St. Pierre,
[t]here is no requirement that a defendant or his trial counsel be clairvoyant. 96 Nev. at
892.
Although Jones had good cause for failing to request a Carter instruction, we conclude
that the absence of the instruction has not prejudiced his substantial rights. A Carter error is
evaluated under the harmless error standard of Chapman v. California, 3S6 U.S. 1S {1967).
See Franklin v. State, 9S Nev. 266, 270
101 Nev. 573, 577 (1985) Jones v. State
under the harmless error standard of Chapman v. California, 386 U.S. 18 (1967). See Franklin
v. State, 98 Nev. 266, 270, 646 P.2d 543 (1982). In Chapman the High Court determined that
a violation of a defendant's Fifth Amendment privilege would not mandate automatic
reversal: [T]here may be some constitutional errors which . . . are so unimportant and
insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not
requiring the automatic reversal of the conviction. 386 U.S. at 22.
[Headnote 2]
After reviewing the evidence of Jones' guilt under this standard, we conclude that any
prejudice to Jones resulting from the failure to give the cautionary instruction was harmless
beyond a reasonable doubt. Evidence of Jones' guilt is overwhelming. Several eyewitnesses
identified Jones as the killer. His counsel admitted in closing argument that Jones was the
man who killed Brown. The only real dispute centered on the degree of Jones' intoxication.
The jury was adequately instructed on this issue, and there was substantial evidence to
support a finding that Jones was capable of premeditation. Given the overwhelming evidence
of Jones' guilt, we conclude that the absence of a Carter instruction did not have any
measurable impact on the jury's deliberations.
At the conclusion of the guilt phase of the trial the prosecutor, Bradley Richardson,
pleaded with the jury to be fair to the victim in this case.
1
Defense counsel objected to the
remark, and the trial judge ordered it stricken from the record. Respondent now concedes that
the remark was improper. See Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967) (prosecutor's
emotional appeal to consider victim's family improper). Our task, therefore, is to determine
whether the prosecutor's misconduct was prejudicial to Jones, denying him a fair trial. See
Moser v. State, 92 Nev. 809, 814, 544 P.2d 424 (1975); Pacheco v. State, 82 Nev. 172, 179,
414 P.2d 100 (1966).
[Headnotes 3, 4]
Prosecutorial misconduct can and will result in the reversal of convictions when it denies
defendants their right to a fair trial. See McGuire v. State, 100 Nev. 153, 677 P.2d 1060
(1984). In McGuire we reversed the convictions of two defendants because of the extreme
and outrageous nature of the misconduct involved.
____________________

1
Jones raises several other instances of prosecutorial misconduct in his brief. We reject those contentions as
unmeritorious and not deserving of discussion here.
101 Nev. 573, 578 (1985) Jones v. State
Because we conclude that the misconduct in this case was much less egregious than the
misconduct in the McGuire cases, we affirm Jones' conviction. Richardson's appeal to the
jury to be fair to the victim in this case was immediately objected to and ordered stricken
from the record:
When you took your oath, you were voirdired or questioned and asked whether you
could be fair and impartial to both sides. And I recall you all qualifying with a yes, that
you would be fair to both sides.
That includes the State of Nevada.
That would also include the victim in this case; who, of course, is not
Mr. Amundson: Objection, Your Honor.
The Court: The objection is sustained.
Stricken.
(Emphasis added.) Given the overwhelming evidence of Jones' guilt we conclude that this
comment was not prejudicial. Nothing in McGuire requires us to abandon the harmless error
rule, and we decline to do so now. Cf. Moser v. State, 91 Nev. 809, 815, 544 P.2d 424 (1975)
(Gunderson, C. J., concurring).
THE PENALTY PHASE
Evidence of Prior Convictions
Jones contends that the district court erred in admitting evidence concerning his three prior
felony convictions. He argues that testimony from the victims of his three prior felonious
assaults was unduly prejudicial in light of defense counsel's offer to stipulate to the
convictions. We reject this contention.
[Headnote 5]
It is well established in Nevada that evidence of prior convictions is admissible at penalty
hearings when relevant and credible and not dubious or tenuous. See Biondi v. State, 101
Nev. 252, 699 P.2d 1062 (1985); Allen v. State, 99 Nev. 485, 488, 665 P.2d 238 (1983). See
also NRS 175.552. Although details of prior crimes undoubtably have a greater impact on a
jury than a bare record conviction, their admission may aid the trier in assessing the character
of a defendant. A defendant's character and his record are relevant factors to be considered
by a jury in imposing a penalty for a capital crime. . . . Allen, 99 Nev. at 488. See also
Woodson v. North Carolina, 428 U.S. 280 (1976). We conclude that the testimony presented
at trial detailing the facts of Jones' prior convictions was relevant to Jones' character and
therefore properly admitted by the district court.
2
Executive Clemency Instructions
____________________

2
Furthermore, we note that detailed information regarding prior convictions may work to the benefit of a
defendant as well as to his detriment. For
101 Nev. 573, 579 (1985) Jones v. State
During the penalty phase of the trial, the trial court read to the jury the following
instructions:
Instruction 5
In such a case, the jury is instructed to consider the aggravating circumstances, if
any, to determine whether the aggravating circumstances justify the imposition of a
death penalty.
Otherwise, the punishment imposed shall be imprisonment in the State Prison for
life with or without the possibility of parole.
You are instructed that the sentence of life imprisonment without the possibility of
parole does not exclude executive clemency.
If the punishment is fixed at life imprisonment with the possibility of parole,
eligibility for parole begins when a minimum of ten years has been served.
Instruction 6
Executive clemency involves an act of pardon which is evidenced by an executive
order signed by the Governor absolving a defendant from the guilt of his criminal act
and completely exempting him from the pains and penalties imposed on him by law.
Executive clemency also includes action by the State Board of Pardons in commuting
or reducing a defendant's punishment of life without the possibility of parole to life
with the possibility of parole, or action by the State Board of Pardons in shortening the
time a defendant is eligible for parole.
Executive clemency cannot be granted in any case unless there is a majority vote for
clemency by a Pardons Board consisting of the Governor, the Attorney General, and the
five Justices of the Nevada Supreme Court.
3
{Footnote added.)
____________________
example, in this case, after the state introduced evidence of Jones' three prior convictions, one in Mississippi and
the other two in Massachusetts, Jones' mother testified that the 1968 Mississippi conviction was the subject of a
civil rights investigation. According to Mrs. Jones, her son was stopped by a group of white policemen as he
crossed the Covington County line from Charles County. Covington County is a dry county; Jones apparently
had gone to Charles County to visit a bar. The police forced Jones to drive his car to a nearby graveyard instead
of taking him to jail. They then poured gasoline on the car while Jones was still inside and then ignited the gas,
trapping Jones inside. Jones, fearful for his life and severely burned, forced his way out of the car, hit one of the
officers and ran through the woods to his aunt's house. Jones was subsequently convicted for felonious assault of
a police officer and sentenced to serve four years in the Mississippi State Penitentiary. This was the first time
Jones was in trouble with the law.

3
During the first oral argument in this case, we discovered that these
101 Nev. 573, 580 (1985) Jones v. State
(Footnote added.)
This court, sua sponte,
4
raised the issue of whether an instruction concerning the
possibility of executive clemency for a sentence of life imprisonment without possibility of
parole constituted reversible error. We delayed our decision in this case and reordered
argument pending the United States Supreme Court's decision in California v. Ramos, 463
U.S. 992, 103 S.Ct. 3446 (1983).
[Headnotes 6, 7]
Although appellant's participation in the drafting of the challenged instructions would
ordinarily preclude appellate review, Kearney v. State, 97 Nev. 127, 625 P.2d 93 (1981);
Bonacci v. State, 96 Nev. 894, 620 P.2d 1244 (1980); Van Valkenberg v. State, 95 Nev. 317,
594 P.2d 707 (1979); McCall v. State, 92 Nev. 556, 540 P.2d 95 (1975), we may hear issues
not raised below in appropriate cases. See, e.g., St. Pierre v. State, 96 Nev. 887, 620 P.2d
1240 (1980); Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980); Hudson v. State, 92 Nev.
84, 545 P.2d 1163 (1976). In a capital case where the record is sufficiently developed to
provide an adequate basis for review and to demonstrate that fundamental rights are
implicated, it is appropriate to hear a constitutional question for the first time on appeal. Cf.
Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980) (second degree murder; record not
developed).
Ramos was decided adversely to Jones' contention that Instructions 5 and 6 regarding the
possibility of clemency and parole constituted reversible error. In Petrocelli v. State, 101 Nev.
46, 692 P.2d 503 (1985) we relied on Ramos in stating: We hold that the instruction
regarding the possibility of pardon or parole is relevant to the defendant's sentence. 101 Nev.
at 55.
In his closing remarks, however, the prosecutor elaborated on the language of these
instructions and misstated the law.
5
The prosecutor's comments misled the jury about the
commutation powers of the pardons board:
Look at Jury Instruction No. 6. Write this down, so you can remember it.
You might want to look at it when you're deliberating.
Even if a person is put into prison with Life Without the Possibility of Parole, there
is always the possibility of executive clemency, which means there is always the
possibility the defendant can have his sentence commuted from Life Without the
Possibility to Life With the Possibility of Parole.
____________________
instructions were the result of a compromise between counsel. This compromise yielded a unique set of
instructions. Apparently, Jury Instructions 5 and 6 are the amalgamation of NRS 175.554 and 175.161(7).

4
Pursuant to an order issued by this court, the parties submitted supplemental briefs addressing the impact of
People v. Ramos, 639 P.2d 908 (1982), rev'd, California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446 (1983).

5
We also note that Instruction 6 itself was inaccurate. It failed to correctly state that the governor has veto
power over any majority vote for pardon.
101 Nev. 573, 581 (1985) Jones v. State
Possibility of Parole, there is always the possibility of executive clemency, which
means there is always the possibility the defendant can have his sentence commuted
from Life Without the Possibility to Life With the Possibility of Parole.
And he can also then receive parole on this matter.
And that is why, if there's any possibility of this gentleman getting out and getting
back into the society of decent, law-abiding, normalnormally reacting humansthere
should be no possibility for this man to ever get out.
And, since there is a possibility, with Life Without, the State urges the death penalty.
(Emphasis added.)
[Headnote 8]
Although the Federal Constitution does not require a jury to be informed that death
sentences, as well as life sentences, may be commuted, Ramos, 463 U.S. at ___, 103 S.Ct. at
3458, the jury may not be misled into believing that commutation of a death sentence is
impossible. In Petrocelli, 101 Nev. at 57, we reaffirmed our holdings in Summers v. State, 86
Nev. 210, 467 P.2d 98 (1970), Serrano v. State, 84 Nev. 676, 447 P.2d 497 (1968), and Bean
v. State, 81 Nev. 25, 398 P.2d 251 (1965), cert. denied, Bean v. Nevada, 384 U.S. 1012
(1966) regarding the following proposition: An instruction that discusses parole in a murder
case is proper if the jury is not misled and so long as it does not enlarge upon the matter of
parole such as requirements for eligibility, how the scheme works, etc. Summers, 86 Nev. at
213 (emphasis added). Although the court in Bean did not find the prosecutor's comments
prejudicial to the defendant, it recognized that remarks about [clemency] may get out of
hand and sometimes result in prejudice. 81 Nev. at 35. Here, the prosecutor essentially told
the jury that, because the pardons board might commute a life sentence without the possibility
of parole, they must impose the death penalty to ensure that Jones would not be released. We
conclude that the jury was misled into thinking that death sentences may not be commuted.
Our holding that the state may not misinform jurors about the possibility of clemency in death
sentences does not run afoul of the decision in Ramos. Ramos merely held that the jury need
not be informed about the possibility of pardon of death sentences; it did not sanction
misleading the jury into believing that death sentences were unpardonable. Ramos, 463 U.S.
at 1012, 103 S.Ct. at 3459. The Court specifically noted that the Federal Constitution does
not prohibit an instruction regarding the . . . power to commute a death sentence. Id. at
1012 n. 27, 103 S.Ct. at 3458 n. 27.
[Headnote 9]
We are required to determine whether a death sentence has been imposed under the
influence of passion, prejudice or any arbitrary factor.
101 Nev. 573, 582 (1985) Jones v. State
been imposed under the influence of passion, prejudice or any arbitrary factor. NRS
177.055(2)(c). We conclude that the jury may well have imposed the death sentence in this
case arbitrarily and under the influence of passion. Cf. Caldwell v. Mississippi,
___
U.S.
___
, 105 S.Ct. 2633, 2647 (1985) (prosecutor's misleading statement regarding appellate
review created unacceptable risk that death sentence imposed arbitrarily or capriciously)
(O'Connor, J., concurring). The legislature reenacted Nevada's death penalty statute with
modifications in 1977 after the United States Supreme Court upheld a capital sentencing
scheme in Gregg v. Georgia, 428 U.S. 153 (1976). See NRS 200.030; 1977 Nev. Stats. ch.
430, 82, at 865; ch. 585, 1, at 1542. Our examination of all cases reported since 1977
reveals that the State of Nevada has not imposed a sentence of death in a first degree murder
case similar to the one at hand, but reserves capital sentencing for cases which exhibit a high
degree of premeditation coupled with aggravating circumstances such as brutality, torture or
depravity. In contrast, Jones' victim died almost immediately from a single shot to the head.
Jones did not enter the bar intending to kill Brown; only after becoming antagonized did
Jones leave to obtain the murder weapon. Given the barroom-confrontation setting of this
crime, it is possible that the jury's sentencing decision was influenced by improper factors.
We conclude that the prosecutor's misstatement of the powers of the pardons board may have
convinced the jury that the only way to keep Jones off the street was to kill him. If the jury
did consider the possibility of pardon or commutation in its deliberations, it is possible that
their mistaken belief that death sentences were unreviewable influenced their decision. We
cannot say that the jury would have imposed the death sentence if the prosecutor had not
implied that death sentences were not commutable. Therefore, we vacate the death sentence
and remand for a penalty hearing before a newly empaneled jury. At the new penalty hearing
the district court may instruct the jury on the possibility of executive clemency only as
authorized by our decision in Petrocelli.
If the newly empaneled jury opts to impose another death sentence on Jones, we will
review the sentence at that time for proportionality as required by NRS 177.055(2)(d).
6
We
decline to do so now because we conclude that an objective, reasonable jury, supplied with
accurate, not misleading, information, may well decide not to impose a death sentence
under the facts presented here.
____________________

6
NRS 177.055(2)(d) was recently amended to abolish the proportionality review requirement. (1985) Nev.
Stats. ch. 527, 1, at 1597-1598. This amendment is inapplicable in this case since Jones' crime was committed
before the amendment took effect. See Wilson v. State, 101 Nev. 452, 705 P.2d 151 (1985).
101 Nev. 573, 583 (1985) Jones v. State
well decide not to impose a death sentence under the facts presented here.
Jones' remaining assignments of error are held to be without merit. We affirm the
judgment of conviction, vacate the death sentence and remand for a new penalty hearing.
____________
101 Nev. 583, 583 (1985) Kroeger Properties v. Board County Comm'rs
KROEGER PROPERTIES & DEVELOPMENT, INC., a Nevada Corporation, and
KROEGER PROPERTIES, INC., a California Corporation, Appellants, v. THE BOARD OF
COUNTY COMMISSIONERS, and THE TREASURER AND EX-OFFICIO TRUSTEE OF
THE COUNTY OF DOUGLAS, STATE OF NEVADA, Respondents.
No. 15624
October 17, 1985 707 P.2d 544
Appeal from summary judgment in favor of respondents, Board of County
Commissioners; Ninth Judicial District Court, Douglas County; Norman C. Robison, Judge.
Corporate landowners brought action against county officials to set aside tax sale of
corporations' real property on ground of lack of notice to them of sale. County officials
moved for summary judgment, claiming action was barred by res judicata and collateral
estoppel, and the district court granted summary judgment. Corporations appealed. The
Supreme Court held that: (1) county officials bore burden of proving that issue of notice had
been litigated in prior litigation which it sought to use as bar, and (2) genuine issue of
material fact existed so as to preclude summary judgment.
Joseph I. Cronin, Minden, for Appellants.
Brent Kolvet, District Attorney, Stephen C. Balkenbush, Chief Deputy District Attorney,
Douglas County, for Respondents.
1. Judgment.
County officials, who sought to sustain tax sale despite landowners' claim of lack of notice of sale on
ground of res judicata or collateral estoppel based on earlier lawsuit, bore burden of proving that the issue
of notice had been litigated in the prior lawsuit.
2. Judgment.
Genuine issue of material fact existed as to whether issue of notice to landowners of sale of property had
been litigated in prior action which county officials sought to use as res judicata or collateral
estoppel bar to then-current action, so as to preclude summary judgment for officials
in action by landowners to set aside tax sale.
county officials sought to use as res judicata or collateral estoppel bar to then-current action, so as to
preclude summary judgment for officials in action by landowners to set aside tax sale.
OPINION
Per Curiam:
On December 15, 1977, the Douglas County Treasurer held a tax sale and sold Lot 63 and
Lot 75 of Kingsbury Village Unit No. 5. The owner of that property, appellant Kroeger
Properties and Development, Inc. (Kroeger), filed a complaint against the Board of County
Commissioners, the treasurer, and the ex-officio trustee of Douglas County (Douglas
County), alleging that the sales of Lots 63 and 75 were illegal and void because of
noncompliance with Nevada statutes. Specifically, Kroeger alleged it did not receive the
notice of sale required by NRS 361.565.
Douglas County filed a motion for summary judgment claiming that the present action was
barred by res judicata and collateral estoppel. Douglas County alleged that the parties had
previously litigated the issue of notice in an earlier lawsuit. The district court agreed and
granted summary judgment in favor of Douglas County.
NRCP 56 authorizes a summary judgment only where there are no genuine issues of
material facts and the moving party is entitled to a judgment as a matter of law. Johnson v.
Steel, Incorporated, 100 Nev. 181, 183, 678 P.2d 676, 678 (1984).
[Headnote 1]
Douglas County bore the burden of proving that the issue of notice had been litigated.
Kroeger's verified pleading in the earlier lawsuit states that notice was received as to all the
property Kroeger owns. However, Kroeger claims the previous litigation did not involve Lots
63 and 75. Although the district court in the earlier litigation found that Douglas County sent
the requisite notice to Kroeger on all Douglas County properties owned by Kroeger, there is
no specific finding that notice was sent on Lots 63 and 75. Additionally, Douglas County
admitted in a response to request for admissions that the requisite notice for the sale of Lots
63 and 75 had not been sent to Kroeger. This admission was not withdrawn when Douglas
County amended its answer to assert the defenses of res judicata and collateral estoppel.
[Headnote 2]
In determining whether a summary judgment is proper, the non-moving party is entitled
to have the evidence and all inferences therefrom accepted as true. Johnson v. Steel,
Incorporated, 100 Nev. at 183, 678 P.2d at 677; see also Nehls v. Leonard, 97 Nev. 325
Leonard, 97 Nev. 325, 630 P.2d 258 (1981). Looking at the facts in a light most favorable to
Kroeger, there still exists a genuine issue as to the fact of notice. Accordingly, the judgment
of the district court is reversed and the case is remanded for trial.
____________
101 Nev. 585, 585 (1985) Cole v. State
CARROLL EDWARD COLE, Appellant, v.
No. 16070
October 22, 1985 707 P.2d 545
Appeal from a plea of guilty to first degree murder and imposition of the death penalty;
Eighth Judicial District Court, Clark County; Myron E. Leavitt, Richard J. Legarza and
Norman C. Robison, Judges.
Defendant was convicted on plea of guilty to first degree murder in district court and was
sentenced to die. Defendant refused to file an appeal of his sentence, and Supreme Court
ordered counsel appointed for him to resolve question as to whether defendant's waiver of
appellate review was valid. The Supreme Court held that: (1) defendant's waiver of appellate
review was valid, and (2) defendant's death sentence conformed to statutory requirements.
Affirmed.
Edward G. Marshall, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, Robert J. Miller, District Attorney, Clark
1. Criminal Law.
Defendant who received death penalty for first degree murder conviction was competent to decide that no
appeal of sentence be filed on his behalf, where court appointed attorney's affidavit stated that defendant
stated in clear and unequivocal language that he desired that no appeal of death penalty sentence be
pursued and that his case should be expedited through court system. NRS 177.055.
2. Criminal Law.
Failure of first degree murder defendant sentenced to death penalty to meet deadline for review of death
penalty sentence was purposeful, with intent to waive right to appeal and full knowledge of consequences
of that decision, where evidence showed defendant told his attorney that he did not want to pursue an
appeal, but wanted his case to be expedited through court system. NRS 177.055, 177.066.
3. Criminal Law.
Notwithstanding defendant's attempted waiver of appellate review of death sentence, appellate
review of whether evidence supported finding of aggravating circumstances, whether
death sentence was imposed under influence of passion, prejudice, or any arbitrary
factor, and whether death sentence was excessive or disproportionate to penalty
imposed in similar cases in state, considering both crime and defendant, was
required.
101 Nev. 585, 586 (1985) Cole v. State
of death sentence, appellate review of whether evidence supported finding of aggravating circumstances,
whether death sentence was imposed under influence of passion, prejudice, or any arbitrary factor, and
whether death sentence was excessive or disproportionate to penalty imposed in similar cases in state,
considering both crime and defendant, was required. NRS 177.055.
4. Homicide.
In reviewing death sentence of defendant convicted of first degree murder, finding that defendant's three
murder convictions from Texas, guilty plea and judgment of conviction of Las Vegas murder, and
conviction of assault with intent to kill in Missouri, were aggravating circumstances, was supported.
5. Homicide.
In reviewing death sentence of defendant convicted of first degree murder, there was no indication that
death sentence was imposed under influence of passion, prejudice, or any arbitrary factor, where great care
was taken to insure that defendant was given sentence based on facts of law, and trial judge appointed
amicus counsel for court in addition to defendant's standby counsel.
6. Homicide.
Death sentence for defendant convicted of first degree murder was not excessive or disproportionate to
crime or defendant, where defendant admitted he strangled victim after engaging in sexual intercourse with
her, had no remorse for this murder or other murders he committed, and freely admitted that he would kill
again if given the opportunity.
OPINION
Per Curiam:
Carroll Edward Cole, convicted on a plea of guilty to first degree murder, has been
sentenced to die. Cole refused to file an appeal of his sentence, and this court ordered counsel
appointed for him to resolve any question as to whether Cole's waiver of appellate review was
valid. We conclude that Cole's waiver was valid and that his death sentence conforms with
the requirements of the laws of this state.
Cole was charged with the first degree murder of Marie Cushman in Las Vegas. On advice
of counsel Cole entered a plea of not guilty by reason of insanity. Cole was examined by
several psychiatrists, all of whom agreed that Cole was not insane at the time of the crime and
also that he was mentally competent to be tried. Thereafter Cole changed his plea to guilty of
first degree murder.
At Cole's insistence and after extensive questioning as required by Faretta v. California,
442 U.S. 806 (1975), the district court allowed Cole to proceed to the penalty hearing without
counsel. Nevertheless, the district court appointed standby counsel for Cole should he wish
consultation at any time prior to or during the hearing. The district court also appointed
separate counsel to serve as amicus curiae for the three-judge sentencing panel.
101 Nev. 585, 587 (1985) Cole v. State
At the sentencing hearing Cole refused to object to any evidence offered against him.
Furthermore, Cole refused to present any mitigating circumstances and objected when the
amicus counsel attempted to do so.
From Cole's own admissions he has killed at least 13 people. He expresses no remorse for
these murders and freely admits that, given the opportunity, he would kill again:
I was drunk, but that's still not an excuse. I was in my right mind. I knew exactly what I
was doing and I'm not sorry for what I did and I have no remorse.
. . . .
This has been a very frightening experience for me because I know that I would kill
again and everything like this. And it seems anymore no woman is safe with me.
Cole also admitted that if given a prison sentence instead of death, he would make every
effort to escape because: I don't think anybody likes to do the rest of their time in a
penitentiary. . . .
Cole expressly requested that he be sentenced to die. After the statutory penalty hearing
the three judge panel made the following findings:
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:
I. That the defendant, Carroll Edward Cole, was found guilty and convicted by a
jury in the State of Texas of the murder of Sally Thompson, a human being, by
strangling her with his hands.
II. That the defendant, Carroll Edward Cole, was found guilty by a jury and
convicted in the State of Texas of the murder of Dorothy King, a human being, by
strangling her with his hands.
III. That the defendant, Carroll Edward Cole, was found guilty by a jury and
convicted in the State of Texas of the murder of Wanda Faye Roberts, a human being,
by strangling her with his hands.
IV. That the defendant, Carroll Edward Cole, pled guilty in the State of Nevada to
the crime of murder of Kathlyn J. Blum, a human being, by strangling her with his
hands, and a judgment of conviction was entered therein.
V. That the defendant, Carroll Edward Cole, pled guilty in the State of Missouri to
assault with intent to kill and was convicted of attempting to strangle Virginia Rowden,
a human being.
Further, the undersigned judges, and each of them, find that there has been an
absence of any mitigating circumstances set forth in NRS 200.035.
101 Nev. 585, 588 (1985) Cole v. State
that there has been an absence of any mitigating circumstances set forth in NRS
200.035.
The undersigned judges, and each of them, state therefore and find beyond a
reasonable doubt, that there are no mitigating circumstances sufficient to outweigh the
aggravating circumstances found as set forth above.
Now, therefore, good cause appearing, the undersigned judges having a unanimous
vote therefore, set and impose upon Carroll Edward Cole, a sentence of Death, said
sentence to be imposed and executed pursuant to law.
On October 12, 1984, the court entered a judgment of conviction and sentence of death. As
stated above, Cole failed to appeal his conviction or sentence. On April 25, 1985, this court
entered an order directing the district court to appoint counsel for Cole to address the issue
whether Cole had validly waived his right to appellate review. Attorney Edward G. Marshall
was then appointed and has filed a comprehensive brief with this court.
Whether Cole has validly waived his right to appellate review.
The threshold issue in this appeal concerns Cole's obvious desire not to engage in any
activity (particularly an appeal) which might delay or prevent his execution. In order to stand,
Cole's decision to forego any appeal of his death sentence must be shown to be intelligently
made and with full comprehension of its ramifications.
From the record it appears that Cole is a fairly intelligent individual with a penchant for
murdering women. Two psychiatrists have found him to have been sane at the time of the
murder which constitutes the basis of this appeal. Those psychiatrists also found Cole to be
mentally competent at the time of their examination.
Much of the brief filed by Attorney Marshall is comprised of an affidavit by that attorney.
In that affidavit the attorney states that he has had extensive discussions with Cole and found
him to be consistent in his desire to be executed. In clear and unequivocal language Cole
confirmed to Marshall that he did indeed desire that no appeal whatever be pursued as to his
murder conviction with a death penalty sentence, but that his case be expedited through the
court system (Affidavit of counsel, App. Opn. Brf., 15, 16).
[Headnote 1]
There should be no question that Cole was competent to decide, and did indeed decide,
that no appeal be filed on his behalf. The version of NRS 177.055 in effect at the time of
Cole's crime and sentencing reads as follows: 177.055 Automatic appeal in certain
cases; mandatory review of death sentence by supreme court.
101 Nev. 585, 589 (1985) Cole v. State
177.055 Automatic appeal in certain cases; mandatory review of death sentence by
supreme court.
1. When upon a plea of not guilty or not guilty by reason of insanity a judgment of
death is entered, an appeal is deemed automatically taken by the defendant without any
action by him or his counsel, unless the defendant or his counsel affirmatively waives
the appeal within 30 days after the rendition of the judgment.
2. Whether or not the defendant or his counsel affirmatively waives the appeal, the
sentence shall 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 or disproportionate to the penalty
imposed in similar cases in this state, considering both the crime and the defendant.
3. The supreme court, when reviewing a death sentence, may:
(a) Affirm the sentence of death;
(b) Set the sentence aside and remand the case for a new penalty hearing:
(1) If the original penalty hearing was before a jury, before a newly empaneled
jury; or
(2) If the original penalty hearing was before a panel of judges, before a panel of
three district judges which shall consist, insofar as possible, of the members of the
original panel; or
(c) Set aside the sentence of death and impose the sentence of imprisonment for life
without possibility of parole.
[Headnote 2]
As review of the first paragraph reveals, a party who had pleaded not guilty or not guilty
by reason of insanity may waive his or her appeal by an affirmative action. This paragraph
makes no reference to a party that has pleaded guilty, but it is logical to infer that such a party
would, at a minimum, have the same right to waive appellate review. NRS 177.066 provides
that in actions not covered by NRS 177.055, a party has thirty days to appeal a judgment to
this court. Certainly Cole missed that deadline. We conclude that he did so purposely, with
the intent to waive his right to appeal and with full knowledge of the consequences of that
decision.
101 Nev. 585, 590 (1985) Cole v. State
[Headnote 3]
Although this court's order required only that Cole's appointed counsel brief the question
of whether Cole's waiver of appeal was valid, it appears that this court must inquire further.
Paragraph 2 of NRS 177.055 requires this court to review certain issues where a judgment of
death has been entered, regardless of an attempted waiver of appellate review.
Whether the evidence supports the finding of an aggravating circumstance or circumstances.
[Headnote 4]
As the sole aggravating circumstance the sentencing panel found, pursuant to NRS
200.033(2), 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.
The panel then enumerated three murder convictions of Cole from Texas, a guilty plea and
judgment of conviction of a separate Las Vegas murder, and a conviction of assault with
intent to kill in Missouri. The panel failed to find any mitigating circumstances. The record
supports the panel's findings in regard to both the aggravating circumstances and the absence
of mitigation.
Whether the sentence of death was imposed under the influence of passion, prejudice or any
arbitrary factor.
[Headnote 5]
There is no indication that any impermissible factor influenced the panel's decision.
Indeed, great care was taken to insure that Cole was given a sentence based on the facts and
law. The trial judge even went so far as to appoint an amicus counsel for the court, in addition
to Cole's standby counsel.
Whether the sentence of death is excessive or disproportionate to the penalty imposed in
similar cases in this state, considering both the crime and the defendant.
[Headnote 6]
Cole admits that after he and the victim went to a motel room they engaged in sexual
intercourse and he then strangled her with his hands and a piece of cord he had in his pants
pocket. He has no remorse for this murder or any of the many others he has committed.
Except for an eight or nine-year-old childhood companion, all of Cole's victims have been
women. Cole has freely admitted that he would kill again if given the opportunity. In refusing
to allow the trial court's amicus counsel to put on mitigating evidence, Cole stated: There's
nothing good about me. Counsel appointed for this appeal states: I am now in my 27th year
of the practice of law before the Nevada Bar, including wide experience in numerous
homicide cases.
101 Nev. 585, 591 (1985) Cole v. State
I am now in my 27th year of the practice of law before the Nevada Bar, including wide
experience in numerous homicide cases. Never before have I seen or known a man who
so justly deserves to die or who so completely wants and desires to have the penalty of
death executed upon him, as punishment for his crimes generally and more specifically
for the murder he committed in this state.
We conclude that the sentence of death in this case is neither excessive nor
disproportionate to the crime or defendant. See Deutscher v. State, 95 Nev. 669, 601 P.2d 407
(1979); Bishop v. State, 95 Nev. 511, 597 P.2d 273 (1979). Based on the foregoing we hereby
affirm Cole's conviction of first degree murder and sentence of death.
____________
101 Nev. 591, 591 (1985) Boyle v. Board of Trustees
DARLEEN R. BOYLE, Appellant, v. BOARD OF TRUSTEES OF THE CLARK COUNTY
SCHOOL DISTRICT, Respondent.
No. 15740
October 22, 1985 707 P.2d 1135
Appeal from judgment of the district court affirming a decision of the Clark County Board
of School Trustees to dismiss appellant from her teaching position; Eighth Judicial District
Court, Clark County; Stephen Huffaker, Judge.
Tenured teacher filed suit challenging her dismissal. The district court upheld the school
board's decision. Teacher appealed. The Supreme Court held that: (1) the failure of the board
to act and give the tenured teacher notification of its decision not to renew her employment
prior to April 1 gave the teacher the statutory right to be reemployed for the upcoming school
year; (2) the statute governing statutory grounds for dismissal of tenured teacher at anytime
did not apply; and (3) the decision of the board that it did not wish to reemploy the teacher for
the 1983-84 school year gave the teacher sufficient notice, before April 1, 1983, that her
employment would not be continued, even though the board could not act retroactively with
respect to 1982-1983 school year.
Schreck, Sloan, Bernhard and Jones, Las Vegas, for Appellant.
Thomas J. Moore, Las Vegas, for Respondent.
1. Schools.
Failure of board of trustees to notify tenured teacher of non-renewal of employment by April 1 gave
teacher statutory [NRS 391.3196] right to be employed by school district for ensuing school year.
2. Schools.
Section [NRS 391.3916, subd. 1] making automatic renewal provisions inapplicable to tenured teacher
who, as of April 1, has been recommended to be dismissed did not apply where recommendation of
dismissal came after April 1.
3. Schools.
Teacher who had been renewed on April 1 could still be subject to dismissal proceedings if found to be
guilty of serious immoral or criminal conduct. NRS 391.312, 391.3196, subd. 1.
4. Schools.
Statute [NRS 391.312] providing that teacher may be subject to immediate dismissal for immorality,
physical or mental incapacity or justifiable decrease in number of positions due to decreased student
enrollment or district reorganization or conviction of felony or crime involving moral turpitude did not
apply to teacher whose dismissal was on ground of alleged incompetency.
5. Schools.
Decision of school board to terminate teacher's employment after 1982-1983 school year provided
sufficient notice to teacher that school district no longer desired to retain her in its employ, even though
board could not retroactively terminate teacher's employment for 1982-1983 year where notice was not
given prior to April 1, 1982 as required by statute [NRS 391.314, subd. 1] governing reemployment of
postprobationary teachers.
OPINION
Per Curiam:
Darleen Boyle, an elementary school teacher of 19 years experience, was dismissed by the
school board from her tenured position with the Clark County School District. Boyle
challenged the board's action in district court, and, after an adverse decision, brings this
appeal.
After a long period of apparently satisfactory performance, charges attacking Boyle's
competency to teach erupted in her nineteenth year of service. Whether adequate cause exists
for her removal is not before us as Boyle's counsel acknowledges that there is evidence in the
record, which, if believed, would provide cause for dismissal. Our task is limited to
determining whether Boyle's dismissal was carried out in conformance with the procedure
mandated by state law for dismissing a tenured teacher.
Boyle was first informed on September 30, 1981, that her performance as a teacher was
unsatisfactory. Her principal gave her a written notice that she had failed to comply with
lesson plan requirements, failed to supervise students in her charge and failed to report to her
duty location on specified dates.
to report to her duty location on specified dates. Boyle was repeatedly notified that her failure
to prepare lesson plans and to employ certain teaching skills and concepts was unsatisfactory.
On December 2, 1981, Boyle was warned that unless she demonstrated improvement by
March 3, 1982, she would be recommended for non-renewal of her contract or for dismissal.
On December 7, 1981, a special assistance team was formed to aid Boyle in improving her
performance and to evaluate her progress. Throughout December and January evaluations of
Boyle's work continued to be unfavorable. Because of a work-related injury Boyle was absent
from work from February 18, 1982, through April 26, 1982. Although she had been given
only until March 3 to improve her performance, no recommendation regarding Boyle's
reemployment was made until after she returned to work in April.
On June 1, 1982, the special assistance team, in accordance with NRS 391.314(1),
recommended Boyle's dismissal. Boyle was afforded a hearing before a hearing officer who
also concluded that she should be dismissed. The superintendent of schools concurred in the
hearing officer's recommendation, and the board of trustees dismissed Boyle on January 27,
1983. The board gave retroactive effect to its decision by making it effective as of June 3,
1982, the last day of the 1981-82 school year.
[Headnote 1]
As a result of the special assistance team's decision to forestall making its recommendation
of dismissal until after Boyle's return to work from her injury related absence, the critical
reemployment date of April 1 passed without Boyle's having received notice of her status for
the upcoming year. NRS 391.31961 categorically requires the board of trustees to notify
teachers in writing on or before April 1 of each year concerning their employment for the
ensuing year; failure to notify results in automatic reemployment.
____________________

1
391.3196 Reemployment of postprobationary employees: Procedure.
1. On or before April 1 of each year, the board of trustees shall notify postprobationary employees in
their employ, in writing, by certified mail or by delivery of the employee's contract, concerning their
reemployment for the ensuing year. If the board, or the person designated by it, fails to notify a
postprobationary employee who has been employed by a school district of his status for the ensuing year,
the employee shall be deemed to be reemployed for the ensuing year under the same terms and conditions
under which he is employed for the current year.
2. This section does not apply to any certificated employee who has been recommended to be
demoted, dismissed or not reemployed if such proceedings have commenced and no final decision has
been made by the board. A certificated employee may be demoted or dismissed for grounds set forth in
NRS 391.312 after he had been notified that he is to be reemployed for the ensuing year.
(Emphasis added.)
writing on or before April 1 of each year concerning their employment for the ensuing year;
failure to notify results in automatic reemployment. Because of the board of trustee's failure
to act and to give Boyle notification of its decision prior to April 1, 1982, she had a statutory
right to be employed by the Clark County School District for the ensuing year, which is to
say the school year September, 1982 through June, 1983.
[Headnote 2]
The school district relies on subparagraph 2 of NRS 391.3196 to support the validity of the
dismissal processes which it followed. Subparagraph 2 contains two sentences. The first
sentence makes the automatic April 1 renewal provisions of NRS 391.3196(1) inapplicable to
a teacher who, on the April 1 date, has already been recommended to be dismissed. Since the
recommendation of dismissal in this case did not come until June 3, 1982, this provision has
no application to Boyle's right to reemployment for the 1982-83 school year.
[Headnotes 3, 4]
The second sentence of subparagraph 2 provides that a teacher may be dismissed on
statutory grounds after he had been notified that he is to be reemployed for the ensuing
year. We read that language to mean that even after receiving the April 1 notice of contract
renewal a teacher may still be subject to dismissal proceedings. For example, a teacher who
had been renewed on April 1 could still be subject to dismissal proceedings if found to be
guilty of serious immoral or criminal conduct. NRS 391.312 expressly provides that a teacher
may be subject to immediate dismissal for immorality, physical or mental incapacity or a
justifiable decrease in the number of positions due to a decreased student enrollment or
district organization or conviction of a felony or of a crime involving moral turpitude. These
statutory grounds of moral, physical and mental unfitness and economic exigency are
clearly intended to be available at any time even, as stated in subparagraph 2, after he has
been notified that he is to be reemployed for the ensuing year. Because Boyle was not
dismissed on any of these statutory grounds, this part of the statute has no application to her.
[Headnote 5]
We must next consider what effect the January 27, 1983, decision of the board had on
Boyle's right to employment after the 1982-83 school year. Notwithstanding its attempt at
retroactivity, which we have held void above, that decision certainly constituted notice to
Boyle that the school district no longer desired to retain her in its employ. In addition, Boyle
had prior actual notice of that fact and had been afforded a hearing. The hearing adduced
evidence which Boyle's counsel readily admits constitutes sufficient cause for
non-renewal of her contract.
hearing adduced evidence which Boyle's counsel readily admits constitutes sufficient cause
for non-renewal of her contract. We therefore conclude that Boyle was duly notified that she
would not be rehired for the 1983-84 school year.
We hold that Boyle's dismissal was improper. We further hold that the decision of the
board of trustees on January 27, 1983, not to rehire Boyle was effective to provide her with
notice that she would not be rehired for the following year, 1983-84.
The judgment of the trial court is reversed and remanded with instructions that the
appellant, Darleen Boyle, receive all salary and emoluments, including pension rights, due to
her for the 1982-83 school year.
____________
101 Nev. 595, 595 (1985) Home Savings v. General Electric
HOME SAVINGS ASSOCIATION, Appellant, v. GENERAL ELECTRIC CREDIT
CORPORATION, Respondent.
No. 14333
October 22, 1985 708 P.2d 280
Appeal from judgment awarding proceeds of sale and from order denying a new trial.
Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Inventory financer of mobile home retailer sought declaratory relief against retail financer,
where both parties claimed priority interest in proceeds of sale of mobile home units. The
district court determined that inventory financer had priority over all units and awarded its
proceeds of sale, and retail financer appealed. The Supreme Court held that: (1) inventory
financer had priority on all mobile home units repossessed by retail financer and returned to
retailer for resale; (2) inventory financer had priority on mobile home unit which was subject
of sham sale; and (3) retail financer had priority on mobile home unit which was sold in
ordinary course of business and not returned to retailer.
Robison, Lyle, Belaustegui & Robb, Reno, for Appellant.
Hawkins, Rhodes & Sharp, Reno, for Respondent.
1. Principal and Agent.
Rights of retail financer of mobile home units as they related to priority of inventory financer were
unaffected by fraud allegedly perpetrated by retail financer's employees and mobile home unit retailer,
since manager of retail financer was acting within scope of apparent authority in
authorizing transfer of mobile home units to retailer's lot as part of repossession,
where there was no suggestion that inventory financer was other than innocent third
party.
manager of retail financer was acting within scope of apparent authority in authorizing transfer of mobile
home units to retailer's lot as part of repossession, where there was no suggestion that inventory financer
was other than innocent third party.
2. Principal and Agent.
Principal may be bound by acts of agent as to third parties who have no reason to know of agent's
improper conduct even when agent acts for own motives and without benefit to principal.
Mobile home units repossessed by retail financer and consigned to retailer for resale became part of
retailer's inventory, subject to inventory financer's security interest. NRS 104.9109, subd. 4.
Goods consigned for resale to person who deals in goods of kind involved are deemed to be on sale or
return and, hence, subject to claims of creditors, regardless of whether consignment is intended for security,
where NRS 104.2326, subd. 3, relating to exempting consignment sales from claims of creditors, is not
complied with.
Security interest means an interest in personal property which secures payment or performance of an
obligation. NRS 104.1201, subd. 37.
Reservation of title is not a security interest unless consignment is intended as security. NRS
104.1201, subd. 37, 104.2326.
District court's decision that sales agreement relating to resale by retailer of mobile home units which
were repossessed by retail financer was consignment not intended as security was supported by substantial
evidence, though sales agreement provided that retail financer would retain title to units until they were
resold, where there was evidence that rights and duties of parties under sales agreement were inconsistent
with rights and duties under security agreement.
Retail financer was required to comply with NRS 104.2326, 104.9114, relating to consignment sales,
to protect its interest in used mobile home units which it repossessed and delivered to retailer for resale,
since consignment was not intended as security, and upon retail financer's failure to do so, inventory
financer had priority in proceeds. NRS 482.433, 489.581, 104.9302, subd. 3(b).
Substantial evidence supported trial court's conclusion that transaction involving mobile home unit was
sham sale, that did not terminate inventory financer's interest, where buyer did not make down payment
to retailer or take possession of unit, unit was not delivered to buyer, buyer made no installment payments
to retail financer, and there was no transfer of title to retail financer.
Inventory financer was entitled to proceeds from sale of unit rather than retail financer, where it appeared
that unit was subject of sham sale. NRS 104.9306, subd. 2, 104.9307, subd. 1.
When inventory financer authorizes sale by dealer out of inventory of mobile home unit in which financer
had security interest, or alternatively when sale is made to buyer in ordinary course of business, the
vehicle is taken free and clear of inventory financer's security interest.
vehicle is taken free and clear of inventory financer's security interest. NRS 104.9306, subd. 2,
104.9307, subd. 1, 104.9308, subd. 2.
Purchaser of chattel paper who gives new value and takes possession of it in ordinary course of business
has priority over security interest in chattel paper which is claimed merely as proceeds of inventory. NRS
104.9308.
13. Sales.
An agreement to purchase, deferring delivery until certain contract terms are met, does not negate
conclusion that there has been a sale nor does it deprive buyer of status as buyer in ordinary course.
NRS 104.2401.
Trial court's holding that sale of mobile home unit was not authorized by inventory financer was clearly
erroneous, and therefore, financer's interest was severed at moment of sale, where agreement between
retailer and inventory financer explicitly authorized retailer to sell all inventory in normal course of
business, and transaction involved sale of unit from inventory to retail customer.
Retail financer's claim to mobile home unit had priority over claims of inventory financer since inventory
financer's interest in mobile home unit was terminated at sale, where security agreement between inventory
financer and retailer explicitly authorized retailer to sell all inventory in normal course of business and
transaction involved sale of unit from inventory to retail customer. NRS 104.9306, 104.9308.
OPINION
Per Curiam:
This case involves the resolution of a priority interest dispute in the proceeds of the sale of
twenty-one mobile home units. Respondent General Electric Credit Corporation (GECC) had
seized the units as part of the inventory of Northern Nevada Mobile Home Brokers, Inc.
(Northern Nevada) upon its discovery of Northern Nevada's breach of its inventory financing
agreement with GECC. In a declaratory relief action brought against appellant Home Savings
Association (HSA), both GECC and HSA claimed priority in the units by virtue of their
perfected security interests. The district court held that GECC had priority and awarded
GECC the proceeds of the sale. This appeal ensued.
THE FACTS
Northern Nevada sold new and used mobile home units. GECC financed inventory
purchases of Northern Nevada pursuant to several 1976 security agreements which granted
GECC a security interest in all inventory, new and used, presently owned and hereafter
acquired, together with all proceeds of the sale or other disposition thereof . . . and all chattel
paper covering the property above described together with any such property returned to
or repossessed by the Debtor."
above described together with any such property returned to or repossessed by the Debtor.
Financing statements covering such property were properly filed by GECC in 1976, and
GECC acquired a perfected security interest in all of Northern Nevada's new and
after-acquired inventory and proceeds. The security agreements further provided that
Northern Nevada had the right to sell the inventory financed by GECC in the normal course
of its business, with repayment to be made to GECC on sale, or within 90 days.
HSA financed consumer purchases of mobile home units from Northern Nevada. In each
case, where financing was approved, Home Savings would pay to Northern Nevada the total
purchase price recited as remaining to be paid on a consumer installment sales contract and
security agreement. In return, HSA acquired the rights of Northern Nevada under the contract
and security agreement. HSA would then obtain title as secured party, through the
Department of Motor Vehicles, or, later, the Manufactured Housing Division.
In early 1980, GECC learned that Northern Nevada had sold a substantial number of units
out of trust, i.e., without payment of the proceeds to GECC. In fact, GECC estimated that
as a result of such sales, Northern Nevada was then indebted to it for approximately
$450,000.00. This debt was secured in part by the perfected security interest in all mobile
home units that were part of Northern Nevada's inventory. As a result of Northern Nevada's
default, GECC and Northern Nevada executed an agreement whereby Northern Nevada
surrendered possession of its inventory, equipment, and other tangible personal property to
GECC for liquidation to satisfy the debt.
On February 13, 1980, GECC asserted its security interest by repossessing the new and
used mobile home units which it considered part of the inventory of Northern Nevada. When
GECC asserted its security interest by repossessing the units, HSA objected to GECC's
seizure of twenty-one mobile home units to which HSA asserted a prior interest. Nineteen of
these units were located on a storage lot belonging to Northern Nevada and located at the
corner of Yori and Wrondel streets in Reno. HSA had previously repossessed these units
pursuant to its retail security agreements. HSA held either a Department of Vehicles
Certificate of Title, describing it as legal owner, or a Certificate of Ownership issued by the
state Manufactured Housing Division, describing HSA as lienholder. HSA and Northern
Nevada had executed a Mobile Home Repossession Sales and Financing Agreement (Sales
Agreement) pursuant to which HSA delivered repossessed units to Northern Nevada for
resale. The Yori/Wrondel lot contained those used mobile home units which were held for
reconditioning and immediate or ultimate sale by Northern Nevada on behalf of various
retail financers, including HSA.
held for reconditioning and immediate or ultimate sale by Northern Nevada on behalf of
various retail financers, including HSA.
One of the remaining two mobile homes, the so-called Veach unit, was located on a
sales lot at the time GECC asserted a possessory interest in the inventory. The final unit, the
Del Rio unit, was located off Northern Nevada's premises on a residential lot. The Del Rio
unit was eventually sold by private sale.
GECC filed a declaratory relief action against HSA, and HSA responded with a
counterclaim for conversion. Pursuant to court order the twenty units in Northern Nevada's
possession were sold in a manner agreed upon by the parties, and the proceeds placed in an
escrow account. At the conclusion of the nonjury trial, the district court rendered judgment in
favor of GECC and ordered disbursement of the court-ordered sale proceeds to GECC. The
district court held that GECC was entitled as well to the proceeds from the sale of the Del Rio
unit. HSA moved to alter or amend judgment, or alternatively for a new trial.
1
The district
court denied the motions. HSA appeals contending its claim to the proceeds has priority
pursuant to its compliance with the title provisions of NRS Chapter 482 or Chapter 489 and
its status as retail financer of consumers who are buyers in the ordinary course of business.
UNITS ON YORI/WRONDEL LOT
The evidence indicates that the units on the storage lot at Yori and Wrondel were there as a
result of repossessions by various retail financers including HSA. The trial court determined
upon substantial evidence that the nineteen units in question were placed on the lot by
direction of HSA's mobile home department manager, James Biglieri, for resale pursuant to
the Sales Agreement between HSA and Northern Nevada. At trial GECC asserted, and the
district court agreed, that these units were part of Northern Nevada's inventory and that
GECC as inventory financer had a perfected security interest in after-acquired inventory. The
district court held that GECC had priority over the interest of HSA in the same units under
applicable provisions of the Uniform Commercial Code. The district court also held that the
Sales Agreement was a consignment not intended as security, and, therefore, HSA was
obliged to protect its interests against a competing secured creditor by taking the steps
required of consignors under NRS 104.2326.
____________________

1
HSA appeals the trial court's dismissal of the motion for a new trial. HSA's contention is without merit. The
granting or denying of a new trial is largely discretionary with the trial court, and that court's determination will
not be reversed on appeal unless abuse of discretion is clearly shown. Quilici v. Battaglia, 78 Nev. 413, 374 P.2d
887 (1962).
signors under NRS 104.2326. Since HSA failed to do so, the district court held that GECC's
security interest had priority.
On appeal, HSA contends that it should not be bound by the transaction through which
Northern Nevada came into possession of the used units, since the repossessions were
effected by representatives of Northern Nevada and HSA's employees as part of a scheme to
defraud HSA. Ordinarily, the decision to replace the units on Northern Nevada's lot was
within the authority and responsibility of HSA's manager of the mobile home department.
There was evidence, however, that only four of these repossessions were internally reported
by Biglieri to HSA management. HSA management was also unaware that Northern Nevada
was paying on a substantial number of contracts on which consumers had defaulted. An
assistant to Biglieri testified that she and Biglieri were involved in a scheme in which they
collected secret payoffs from Northern Nevada for each consumer installment sales contract
which HSA finance. HSA management began to unravel the scheme in late 1979. In early
1980 HSA's Vice President-Administrator in charge of its mobile home department, and its
Vice President and Internal Auditor, visited the Yori/Wrondel lot to inspect the units. At this
time, HSA did nothing to indicate that the consignment of the units was contrary to HSA and
Northern Nevada's Sales Agreement.
[Headnotes 1, 2]
Accepting the truth of appellant's assertion in this regard, we see no basis for holding that
the rights of HSA vis-a-vis GECC should be affected by fraud perpetrated by HSA employees
and Northern Nevada. There has never been a suggestion that GECC was other than an
innocent third party, which had itself suffered from the fraudulent and unscrupulous conduct
of the same dealer. Biglieri, as manager of the mobile home department for HSA, was acting
within the scope of his inherent authority in authorizing transfer of the mobile home units to
the Northern Nevada lot. HSA, as principal, may be bound by the acts of its agent as to third
parties who have no reason to know of the agent's improper conduct. This is so even when the
agent acts for his own motives and without benefit to his principal. See Nevada Nat'l Bank v.
Gold Star Meat Co., 89 Nev. 427, 514 P.2d 651 (1973); Dougherty v. Wells Fargo & Co., 7
Nev. 368 (1872). See also Restatement (Second) Agency, 8A; 112, comment C, at 292,
and 165 (1958).
Alternatively, HSA contends it is a perfected secured creditor by virtue of its compliance
with NRS Chapters 482 and 489, and thus has priority over GECC's interest. Further, HSA
contends that the subsequent Sales Agreement does not alter this result due to the fact that the
transaction was a consignment intended as security, and HSA retains its original perfected
status pursuant to NRS 4S2.432 and NRS 4S9.5S1.
security, and HSA retains its original perfected status pursuant to NRS 482.432 and NRS
489.581.
In NRS Chapter 489, now applicable to mobile homes, as well as Chapter 482, which was
applicable to the majority of the earlier purchases, the legislature has specified that
compliance with applicable title provisions is sufficient for the perfection and release of a
security interest in a mobile home and for exemption from the requirement of filing a
financing statement under the provisions of paragraph (b) of subsection 3 of NRS 104.9302.
NRS 482.432 and NRS 489.581.
2
HSA, as retail financer, originally had, as to these units, a
perfected security interest. But in all other respects, however, the rights and duties of the
debtor and secured party are governed by the Uniform Commercial CodeSecured
Transactions to the extent applicable. Id. Thus, NRS 482.432 and NRS 489.581 do not
provide the exclusive means to perfect a security interest in a mobile home unit. NRS
482.433, NRS 489.581 and NRS 104.9302(3)(b). When HSA consigned the nineteen units to
Northern Nevada for resale, the transaction was subject to other applicable provisions of the
Uniform Commercial Code.
[Headnotes 3, 4]
HSA and Northern Nevada executed a Sales Agreement that covered nineteen of the units
on the Yori/Wrondel lot. Under this Sales Agreement, HSA conveyed repossessed units to
Northern Nevada on consignment for resale. Northern Nevada testified that the used units on
the Yori/Wrondel lot were held there for immediate or ultimate resale. These units were then
part of Northern Nevada's inventory. NRS 104.9109(4). Pursuant to NRS 104.2326, which
governs consignment sales, the nineteen
____________________

2
Compliance with the applicable provisions of NRS 482.423 to 482.431, inclusive, is sufficient for the
perfection and release of a security interest in a vehicle and for exemption from the requirement of filing
of a financing statement under the provisions of paragraph (b) of subsection 3 of NRS 104.9302. In all
other respects the rights and duties of the debtor and secured party are governed by units are deemed
to be on the Uniform Commercial CodeSecured Transactions and chapter 97 of NRS to the extent
applicable.
Compliance with the provisions of this chapter relating to a security interest in a manufactured home,
mobile home or commercial coach is sufficient for the perfection and release of that security interest and
for exemption from the requirement of filing a financing statement under the provisions of paragraph (b)
of subsection 3 of NRS 104.9302. In all other respects the rights and duties of the debtor and secured
party are governed by the Uniform Commercial CodeSecured Transactions and chapter 97 of NRS to
the extent applicable.
units are deemed to be on sale or return and, hence, subject to the claims of the buyer's
creditors where NRS 104.2326(3) is not complied with, whether or not the consignment is
intended for security.
3

The purpose of NRS 104.2326(3) is to provide the methods by which HSA could protect
its interest in the units against an inventory secured creditor of Northern Nevada. HSA failed
to qualify for this protection under NRS 104.2326(3)(a) or (b). HSA contends that this Sales
Agreement was a consignment intended as security. HSA further contends that the perfection
of its interest pursuant to NRS Chapters 482 or 489, then satisfies the requirements of NRS
104.2326(3)(c). We disagree.
[Headnotes 5, 6]
Security interest means an interest in personal property which secures payment or
performance of an obligation. NRS 104.1201(37). Unless a consignment is intended as
security, reservation of title is not a security interest but a consignment is in any event
subject to the provisions on consignment sales (NRS 104.2326). Id. The district court found
that the Sales Agreement did not evince an intent that the consignment was intended as
security. We agree.
[Headnote 7]
While the Sales Agreement provides that HSA will retain title to the units until they are
resold, there is no showing that the parties intended this consignment to be a security
interest.
____________________

3
1. Unless otherwise agreed, if delivered goods may be returned by the buyer even though they
conform to the contract, the transaction is:
* * * * *
(b) A sale or return if the goods are delivered primarily for resale.
2. Except as provided in subsection 3, goods held on approval are not subject to the claims of the
buyer's creditors until acceptance; goods held on sale or return are subject to such claims while in the
buyer's possession.
3. Where goods are delivered to a person for sale and such person maintains a place of business at
which he deals in goods of the kind involved, under a name other than the name of the person making
delivery, then with respect to claims of creditors of the person conducting the business the goods are
deemed to be on sale or return. The provisions of this subsection are applicable even though an
agreement purports to reserve title to the person making delivery until payment or resale or uses such
words as on consignment or on memorandum. However, this subsection is not applicable if the
person making delivery:
(a) Complies with an applicable law providing for a consignor's interest or the like to be evidenced by
a sign; or
(b) Establishes that the person conducting the business is generally known by his creditors to be
substantially engaged in selling the goods of others; or
(c) Complies with the filing provisions of the article on secured transactions (article 9).
to the units until they are resold, there is no showing that the parties intended this
consignment to be a security interest. Paragraph A of the Sales Agreement, entitled Intent,
states:
[t]he intent or objective of both parties concerned is to collectively work together on a
continuing program to liquidate or resell repossessed mobile homes at the least amount
of loss or cost to both lender and dealer. . . .
The clear intent of the Sales Agreement was the resale of repossessed units by Northern
Nevada for HSA. There is no indication in the Sales Agreement that Northern Nevada was
absolutely obligated to HSA for the price of the consigned goods at the time of
consignment. Nor was there any indication that Northern Nevada could not return unsold
goods to HSA at any time. Under the Sales Agreement, HSA was permitted access to
Northern Nevada's lot to inspect the units. The record indicates that HSA exercised this right.
Moreover, HSA set the release or purchase price to the dealer for each unit. HSA retained
responsibility for all insurance costs for units while on Northern Nevada's lots, as well as
relocation costs, park rents, lot rents, penalties and back taxes. Thus, there is no indication
that the intent of the parties was to effect a consignment intended for security. See Winship,
The True Consignment Under the Uniform Commercial Code, and Related Peccadilloes, 29
Southwestern Law Journal 825 (1975); Duesenberg, Consignments Under the UCC: A
Commentary on Emerging Principles, 26 The Business Lawyer 565 (1970-71). There is
substantial evidence supporting the district court's decision that the Sales Agreement was a
consignment not intended as security. We will not disturb this finding on appeal. Udevco v.
Wagner, 100 Nev. 185, 678 P.2d 679 (1984).
[Headnote 8]
As discussed supra, the title provisions of either NRS 482.432 or NRS 489.581 are not the
exclusive means to perfect a security interest. Since the consignment was not intended as
security, in the case at bar HSA's compliance with NRS 104.2326 and NRS 104.9114 was the
required method to protect its interest in the used units.
4
NRS 482.433, NRS 489.581 and
NRS 104.9302{3){b).
____________________

4
1. A person who delivers goods under a consignment which is not a security interest and who would
be required to file under this article by paragraph (c) of subsection 3 of NRS 104.2326 has priority over a
secured party who is or becomes a creditor of the consignee and who would have a perfected security
interest in the goods if they were the property of the consignee, and also has priority with respect to
identifiable cash proceeds received on or before delivery of the goods to a buyer, if:
104.9302(3)(b). HSA failed to comply with NRS 104.9114 and, hence, failed to satisfy the
protective provisions of NRS 104.2326(3). The nineteen units on Northern Nevada's
Yori/Wrondel lot were subject to GECC's claims as an inventory secured creditor.
The district court correctly held that GECC's security interest had priority over HSA's
interest.
THE DEL RIO UNIT
The so-called Del Rio Unit was purportedly sold to Barbara Del Rio pursuant to an
installment sales contract for which HSA paid Northern Nevada the recited amount of the
remaining purchase price. At the time of the seizure of Northern Nevada's inventory by
GECC, the unit was on a residential site. The district court held that Barbara Del Rio never
purchased the unit, and hence HSA's interest was void. On appeal, HSA contends Del Rio's
status as a buyer in the ordinary course of business cuts off GECC's security interest. NRS
104.9307(1).
[Headnote 9]
The evidence indicates that Barbara Del Rio never made the down payment to Northern
Nevada. Northern Nevada's president testified that Del Rio paid some monies, but did not
complete the down payment, and the deal fell through. He also testified that payments to
HSA on the contract were made by Northern Nevada. Del Rio did not take possession of the
unit. The unit was never delivered to Del Rio. Nor did she make any installment payments to
HSA. There was testimony by Biglieri's assistant and an HSA officer regarding the
irregularities in the application. There was no transfer of title to HSA. Subsequent to this
transaction, there was a second installment sales contract signed by Donald and Virginia
Leverett for the same unit. Eventually, GECC itself financed this sale to the Leveretts.
____________________
(a) The consignor complies with the filing provision of the article on sales with respect to
consignments (paragraph (c) of subsection 3 of NRS 104.2326) before the consignee receives possession
of the goods; and
(b) The consignor gives notification in writing to the holder of the security interest if the holder has
filed a financing statement covering the same type of goods before the date of the filing made by the
consignor; and
(c) The holder of the security interest receives the notification within 5 years before the consignee
receives possession of the goods; and
(d) The notification states that the consignor expects to deliver goods on consignment to the
consignee, describing the goods by item or type.
2. In the case of a consignment which is not a security interest and in which the requirements of the
preceding subsection have not been met, a person who delivers goods to another is subordinate to a
person who would have a perfected security interest in the goods if they were the property of the debtor.
GECC itself financed this sale to the Leveretts. A Certificate of Ownership was issued listing
the Leveretts as owners and GECC as lienholder. The Leveretts later rescinded the contract,
and the unit was repossessed by GECC and resold. There was substantial evidence upon
which the trial court could have concluded that the Del Rio transaction was a sham sale.
Where a district court has made a determination on the basis of conflicting evidence, we will
not disturb that determination if it is supported by substantial evidence. Kulick v. Albers
Incorporated, 91 Nev. 134, 532 P.2d 603 (1975).
[Headnote 10]
In such circumstances, where it appears that there has not been a buyer at all, neither
NRS 104.9306(2), which requires a buyer for a sale, nor NRS 104.9307(1), which
requires a buyer in the ordinary course, come into play. See First Nat. Bank, Etc. v. Ford
Motor Credit, 646 P.2d 1057 (Kan. 1982). Thus, HSA cannot prevail, and the district court
correctly ruled that GECC was entitled to the proceeds with regard to this unit.
THE VEACH UNIT
The Veach unit was located on one of Northern Nevada's sales lots, rather than the storage
lot, when GECC seized the inventory of Northern Nevada. The district court found that the
Veach transaction did not constitute a sale or disposition authorized by GECC in the security
agreement. The district court held that pursuant to NRS 104.9306(2) GECC's interest in the
Veach unit had not been terminated, and HSA's interest was not entitled to priority.
5
We
disagree.
Jack and Trudy Veach executed an installment sales contract and security agreement with
Northern Nevada for the purchase of a 1978 Governor mobile home unit. The unit was
financed through HSA which had purchased the chattel papers from Northern Nevada for
$15,631.50. A Certificate of Title issued October 3, 1979 and listed the Veaches as owners
and HSA as lienholder. The Veach unit was still on Northern Nevada's sales lot when GECC
repossessed Northern Nevada's inventory. The Veach unit was eventually sold with the other
units seized by GECC but claimed by HSA. The proceeds were placed in escrow.
At trial there was conflicting evidence over the amount of the down payment the Veaches
actually made.
____________________

5
Except where this article otherwise provides, a security interest continues in collateral notwithstanding
sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in
the security agreement or otherwise, and also continues in any identifiable proceeds including collections
received by the debtor.
down payment the Veaches actually made. Northern Nevada employees testified that because
the full down payment had not been made, they never delivered the unit. Trudy Veach
testified that they did not take actual delivery of the unit because they did not yet have a
residential lot on which to install it. Trudy Veach testified that the unit was still on Northern
Nevada's lot for the Veaches' convenience and that Northern Nevada informed them that the
unit could remain on the lot until the Veaches were able to find a location on which to install
it. The Veaches signed a separate delivery receipt indicating that the unit had been delivered
and set up to their satisfaction, when in fact it had not. The Veaches made timely monthly
payments to HSA on their installment agreement beginning in October, 1979 and continuing
for the next six months. The Veaches stopped making payments when they went to Northern
Nevada's lot to see our trailer and it had GECC's receivership sign in its window. Whatever
unresolved details regarding the down payment may have existed between the Veaches and
Northern Nevada, the record reveals that the Veaches intended to purchase and believed that
they had purchased and owned the unit and were in the process of fulfilling the terms of the
sales contract. The Veaches acted in good faith and were unaware that any portion of this
transaction may have been in violation of Northern Nevada's security agreement with GECC.
NRS 104.1201(9); NRS 104.1201(19); See generally Martin Marietta Corp. v. N.J. Nat.
Bank, 612 F.2d 745 (3rd Cir. 1979). When the Veaches became aware that the unit was in
receivership to GECC however, they stopped their payments to HSA, advised HSA that they
were defaulting on their sales contract and permitted HSA to repossess the unit in satisfaction
of the debt.
[Headnotes 11, 12]
Where an inventory financer, such as GECC, authorizes sale by a dealer out of inventory
of a mobile home unit in which the financer has a security interest, or alternatively where a
sale is made to a buyer in the ordinary course of business, the vehicle is taken free and clear
of the inventory financer's security interest. NRS 104.9306(2); NRS 104.9307(1); NRS
104.9308(2). See Bank of Beulah v. Chase, 231 N.W.2d 738 (N.D. 1975). A purchaser of
chattel paper, such as HSA, who gives new value and takes possession of it in the ordinary
course of his business has priority over a security interest in chattel paper which is claimed
merely as proceeds of inventory. NRS 104.9308. The interest of the retail financer then has
priority over the security interest of the inventory financer. See Bank of Beulah v. Chase,
supra, Rex Financial Corp. v. Great Western Bank & Trust, 532 P.2d 558 (Ariz.App. 1975);
Chrysler Credit Corp. v. Sharp, 288 N.Y.S.2d 525 (N.Y.Sup. 1968).
[Headnote 13]
NRS 104.2103(a) provides that a buyer is a person who buys or contracts to buy goods.
According to NRS 104.2106(1), [a] sale' consists in the passing of title from the seller to the
buyer for a price (NRS 104.2401). The Code then explicitly provides, pursuant to NRS
104.2401(3), that [u]nless otherwise explicitly agreed where delivery is to be made without
moving the goods: (a) If the seller is to deliver a document of title, title passes at the time
when and the place where he delivers such documents. Thus an agreement to purchase,
deferring delivery until certain contract terms are met, does not negate the conclusion that
there has been a sale nor does it deprive the buyer the status of buyer in the ordinary
course. See Serra v. Ford Motor Credit Co. et al., 463 A.2d 142 (R.I. 1983); Chrysler Credit
Corp. v. Sharp, supra. See also Intern. Harvester Credit v. Associates Fin. Serv., 211 S.E.2d
430 (Ga.App. 1974).
With regard to the interest of GECC, NRS 104.9306(2) provides that, unless the article
otherwise provides, a security interest continues in collateral notwithstanding sale, exchange
or other disposition thereof unless the disposition was authorized by the secured party in the
security agreement or otherwise. . . . (Emphasis added.) Thus, if the sale was authorized,
the lender's interest is severed at the moment of sale, and the buyer acquires full rights in the
collateral. In addition, any secured party claiming through the buyer takes free of the original
security interest. Bazelon, The Priority Rules of Article Nine, 62 Cornell L. Rev. 834, 941
(1976-77). See Crystal State Bank v. Columbia Heights State Bank, 203 N.W.2d 389 (Minn.
1973).
[Headnote 14]
In this case, the security agreement between Northern Nevada and GECC explicitly
authorized the debtor to sell all inventory financed by GECC in the normal course of its
business. The Veach transaction was a sale of a unit from its inventory to a retail consumer.
Northern Nevada was undisputably a seller of mobile home units. In selling mobile home
units to consumers, such as the Veaches, Northern Nevada was precisely engaged in the
normal course of its business. See White and Summers, Uniform Commercial Code,
25-12, 1980 Ed. The trial court's holding that the sale was unauthorized was clearly
erroneous. Avery v. Gilliam, 97 Nev. 181, 182, 625 P.2d 1166, 1168 (1981); London
Overseas, Ltd. v. Harris, 92 Nev. 62, 64, 544 P.2d 1202, 1203 (1976).
Thus, the sale of the mobile home unit to the Veaches terminated the interest of GECC in
the mobile home itself. We are not persuaded that the existence of any irregularities on the
part of the dealer or the consumer in their dealings with HSA should alter this result. Cf. Serra
v. Ford Motor Co. et al., supra; Chrysler Credit Corp. v.
Chrysler Credit Corp. v. Sharp, supra. See R. Skilton, Buyer in Ordinary Course of Business
Under Article 9 of the Uniform Commercial Code, 1974 Wis.L.Rev. 1, 76-88.
[Headnote 15]
Upon the sale of the mobile home to the Veaches, GECC's security interest shifted from
the unit itself to the proceeds of such sale. As the retail financer, HSA's claim to the Veach
unit had priority over any claims that GECC might assert. NRS 104.9306; NRS 104.9308.
This conclusion is dispositive of the issue of HSA's priority, and we need not decide whether
the district court erroneously held that the Veaches were not buyers in the ordinary course of
business. Finance America Com. Corp. v. Econo Coach, 454 N.E.2d 1127 (Ill.App. 2 Dist.
1983); In re Frank Meador Leasing, Inc., 6 B.R. 910 (Va. 1980). Accordingly, appellant, with
the sole security interest in the unit, was entitled to its possession on the Veaches' default.
Therefore, appellant is entitled to the proceeds of its subsequent sale. The district court erred
in awarding the proceeds of the sale of the Veach unit to GECC.
CONCLUSION
We reverse that part of the judgment below that awards the proceeds of the Veach unit to
GECC and remand for entry of judgment consistent herewith. The judgment of the district
court is affirmed in all other respects.
____________
101 Nev. 608, 608 (1985) State v. Rhodig
STATE OF NEVADA, Appellant, v. RUSSELL
D. RHODIG, Respondent.
No. 15677
October 22, 1985 707 P.2d 549
Appeal from a judgment of acquittal; Second Judicial District Court, Washoe County;
William N. Forman, Judge.
After jury convicted a sworn deputy city marshall of misconduct of a public official, the
district court entered a judgment of acquittal on the ground that the evidence was legally
insufficient on the element of knowledge. State appealed. The Supreme Court held that the
marshal's knowledge that he received payment for official services not actually rendered was
established by his signature on arrest warrants of individuals with whom he had no conduct
and, therefore, the trial court erred in entering a judgment of acquittal.
[Rehearing denied February 20, 1986] Brian McKay, Attorney General, Carson City, Mills
Lane, District Attorney, Edward B.
Brian McKay, Attorney General, Carson City, Mills Lane, District Attorney, Edward B.
Horn, Deputy District Attorney, Jack G. Angaran, Deputy District Attorney, and Gary
Hatlestad, Deputy District Attorney, Reno, for Appellant.
Johnson & Adams, Reno, for Respondent.
Sworn deputy city marshal supervised by city marshal was public officer for purposes of statute
prohibiting public officers from receiving compensation for official service which has not been actually
rendered. NRS 193.019, subd. 16, 197.110.
2. Officers and Public Employees.
Evidence supported jury's determination that sworn deputy city marshal received compensation for
service of arrest warrants and that he did not actually perform official services for which he received
compensation. NRS 197.110.
Conviction of public officials for receiving compensation for official services not actually rendered
requires that officer have knowledge of payment for services not rendered, but does not require knowledge
that such act or omission is unlawful. NRS 193.017, 197.110.
4. Criminal Law.
State of mind need not be proved by positive or direct evidence, but may be inferred from conduct and
facts and circumstances disclosed by evidence.
Sworn deputy city marshal's knowledge that he received compensation for official services not actually
rendered was established by marshal's signature on arrest warrants for individuals who had no contact with
marshal. NRS 193.010, subd. 12, 197.110.
6. Criminal Law.
If evidence reasonably justifies jury's verdict, defendant's reference to inferences that are also consistent
with innocence will not warrant interference with verdict.
Evidence sustained jury's conclusion that sworn deputy city marshal acted with knowledge that he had not
served arrest warrants for which he received compensation and, therefore, trial court erred in entering
judgment of acquittal on ground of insufficient evidence of knowledge. NRS 175.381, 197.110.
OPINION
Per Curiam:
After a jury convicted defendant of misconduct of a public official, the court entered a
judgment of acquittal on the ground that the evidence was legally insufficient on the element
of knowledge. The State appeals, arguing the evidence is sufficient to support the jury's
conclusion that beyond a reasonable doubt defendant knew he was receiving compensation
for an official service which he did not actually render.
service which he did not actually render. We agree with the State and remand to the district
court to reinstate the jury verdict.
Defendant was employed as a Deputy City Marshal for the City of Reno (the City) in April
1981 to serve arrest warrants issued by the Municipal Court of the City. For each arrest
warrant served, the City paid defendant $10.00. As a predicate for payment, defendant was
required to make telephonic or physical contact with the subjects of outstanding warrants and
ask them to post bail or go to court.
On each of the original warrants for which defendant was paid in the April 2, 1981 pay
period, defendant signed the lower portion of the return of service which read: I HEREBY
CERTIFY that I received the within warrant on [date] and served the said Warrant by
arresting the within-named defendant [name] and bringing him into this Court this [date].
[signed] Marshal of the City of Reno. These documents, entitled Complaint and Warrant,
named an individual as a defendant, and cited a violation of the Municipal Code of the City.
The signature of a Municipal Judge of the City appears under an order for the arrest of the
subject of the warrant. Defendant received, endorsed and cashed a check for warrants served
in the April 2, 1981 pay period.
The majority of the persons named in the warrants credited to defendant for the April 2,
1981 pay period testified at trial that they had no contact with defendant in the process of
paying their warrants. After trial, the court entered an advisory verdict of not guilty on behalf
of defendant (NRS 175.381), but the jury nevertheless found defendant guilty. Thereafter, the
court granted defendant a judgment of acquittal and this appeal followed.
1

In reviewing the sufficiency of the evidence, the question is not whether the 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, 609 P.2d 309 (1980); see also Jackson v. Virginia,
443 U.S. 307 (1979). [A] jury may reasonably rely upon circumstantial evidence; to
conclude otherwise would mean that a criminal could commit a secret murder, destroy the
body of the victim, and escape punishment despite convincing circumstantial evidence
against him or
her. . . . Wilkins, 96 Nev. at 374, 609 P.2d at 313; see also Bolden v. State, 97 Nev. 71, 624
P.2d 20 (1981).
In convicting Rhodig, the jury must have found beyond a reasonable doubt that (1) at the
time of the commission of the offense, defendant was a public officer, (2) defendant asked for
or received compensation for an official service which he did not actually perform, and {3)
defendant acted with the knowledge that he was asking for or receiving compensation for
an official service which he did not actually render.2
____________________

1
In view of our disposition of this case, we need not decide whether the district court was empowered with
the jurisdiction to enter a judgment of acquittal.
received compensation for an official service which he did not actually perform, and (3)
defendant acted with the knowledge that he was asking for or receiving compensation for an
official service which he did not actually render.
2

[Headnotes 1, 2]
The evidence demonstrated that Rhodig, as a sworn Deputy City Marshal supervised by
the City Marshal, was a public officer. NRS 193.019 (definition of public officer); State v.
Thompson, 89 Nev. 320, 511 P.2d 1043 (1973). The jury properly could have concluded from
the evidence that defendant received compensation of $10.00 each for the service of the arrest
warrants credited in the April 2, 1981 payroll check, that defendant received compensation
for an official service. The testimony of the persons against whom the warrants were issued
evidenced a complete lack of contact with defendant, thereby supporting the jury's conclusion
that defendant did not actually perform the official services for which he received
compensation.
[Headnotes 3, 4]
The central dispute both at trial and on appeal, is whether there was sufficient evidence
that defendant knowingly accepted compensation for an official service which he did not
actually perform. A conviction under the statute requires that a defendant have knowledge of
payment for services not rendered, but the law does not require knowledge that such an act or
omission is unlawful. NRS 193.017. State of mind need not be proved by positive or direct
evidence, but may be inferred from conduct and the facts and circumstances disclosed by the
evidence. Larsen v. State, 86 Nev. 451, 470 P.2d 417 (1970).
[Headnote 5]
The State correctly argues that the element of knowledge is satisfied by proof that
defendant signed the arrest warrant for the pay period at issue. Defendant, an educated man
who was the principal of a local elementary school, was hired by the City for the sole purpose
of serving warrants. Defendant knew that to receive credit, he had to make contact with the
person named in the warrant and place his writing on the face of the warrant. Defendant's
signature appears on the bottom of the warrants submitted to the City Marshal's secretary
for payment by the finance department.
____________________

2
Every public officer who shall:
1. Ask or receive, directly or indirectly, any compensation, gratuity or reward, or promise thereof, for
omitting or deferring the performance of any official duty; or for any official service which has not been
actually rendered, except in case of charges for prospective costs or fees demandable in advance in a case
allowed by law . . . shall be guilty of a gross misdemeanor. . . .
submitted to the City Marshal's secretary for payment by the finance department. Respondent
argues that the absence of notations or initials at the top of the warrant document to
specifically reflect personal contact with the subject of the warrant refutes the existence of
defendant's knowledge. One witness testified that such notations or initials were evidence of
personal contact. However, defendant ignores that Myrna House, the City Marshal's secretary,
testified that a deputy's signature at the bottom of a warrant was sufficient without other
notation to indicate an official service for which payment was made. Additionally, we note
defendant's payroll check was endorsed and cashed shortly after it was received.
[Headnotes 6, 7]
If the evidence reasonably justifies the jury's verdict, respondent's reference to the
inferences that are also consistent with innocence will not warrant interference with the jury's
verdict. See Schino v. United States, 209 F.2d 67, 72 (9th Cir. 1954). The foregoing is
sufficient evidence to support both the jury's conclusion that defendant acted with knowledge
and its verdict of guilty. The action of the trial court in entering a judgment of acquittal on the
ground of insufficient evidence was improper.
The case is remanded to the district court with directions to set aside the judgment of
acquittal and to reinstate the jury verdict. See State v. Lewellyn, 266 P.261 (Utah 1928).
____________
101 Nev. 612, 612 (1985) Arnold v. Mt. Wheeler Power
JAMES A. ARNOLD, Appellant and Cross-Respondent, v. MT. WHEELER POWER
COMPANY, Respondent and Cross-Appellant.
No. 15896
October 22, 1985 707 P.2d 1137
Appeal and cross-appeal from a judgment rendered upon a jury verdict and from orders
denying a motion for additur, a motion for a new trial and a motion for expert witness fees;
Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Injured party sued power company in the district court for damages which occurred when
haystacker he was operating contacted overhead power line. Jury found each party fifty
percent negligent and assessed damages. Injured party moved for additur or in the alternative
for a new trial on issue of damages, which were denied. Both parties appealed. The Supreme
Court held that: {1) it was error to deny injured party's motion for additur as to award for
past damages; {2) award for future damages was not inadequate; {3) it was not error for
court to deny injured party's motion for excess witness fees; and {4) interest award
should have been at rate of eight percent per annum.
that: (1) it was error to deny injured party's motion for additur as to award for past damages;
(2) award for future damages was not inadequate; (3) it was not error for court to deny injured
party's motion for excess witness fees; and (4) interest award should have been at rate of eight
percent per annum.
Durney & Brennan, Reno, for Appellant and Cross-Respondent.
Barker, Gillock & Perry, Reno, for Respondent and Cross-Appellant.
1. Damages.
It was error for jury to award an amount for past damages which was exact amount of past medical
expenses incurred by injured plaintiff and which contained nothing for loss of limbs or for pain and
suffering and loss of earnings.
2. Damages.
Award of $1,000,000 for future damages was not clearly inadequate to injured party who was severely
electrocuted requiring amputation of both arms and parts of both feet.
3. Appeal and Error; Witnesses.
Amount of expert witness fees in each case is a matter within sound discretion of trial judge and will not
be disturbed unless found to be manifestly erroneous.
4. Witness.
Trial court did not err in denying motion for excess witness fees after hearing argument on
reasonableness and necessity of exert testimony. NRS 18.005, subd. 5.
5. Interest.
An interest rate of eight percent per annum and not twelve percent per annum should have been awarded
upon judgment for damages from an accident which occurred before July 1, 1981, effective date of statute
increasing interest rate to 12 percent. NRS 17.130, subd. 2.
OPINION
Per Curiam:
On October 4, 1980, appellant James A. Arnold was severely electrocuted when the
hay-stacker he was operating came in contact with respondent Mt. Wheeler Power Company's
14,000 volt overhead power line. Both of Mr. Arnold's arm and parts of both feet required
amputation. Doctors testified that as a result of the electrocution and the numerous surgeries
which followed, ninety percent of Mr. Arnold's body is covered with scars, and it is feared
that he will never again be able to walk.
Mr. Arnold brought suit against Mt. Wheeler Power Company seeking damages for his
personal injuries. The case was tried to a jury which, by special verdict, found Mr.
jury which, by special verdict, found Mr. Arnold and Mt. Wheeler each fifty percent
negligent. Damages were assessed at $1,256,066.38$256,066.38 representing past damages
and the remaining $1,000,000.00 future damages. The district court, pursuant to NRS
41.141(1),
1
reduced the damages to reflect the fifty percent negligence of each party. Interest
was assessed at the rate of twelve percent.
Subsequent to the verdict, Mr. Arnold brought a motion for additur or, in the alternative,
for a new trial on the issue of damages. Mr. Arnold also filed a motion for reimbursement of
expert witness fees. The district court denied both motions. This appeal and cross-appeal
followed.
Motion for Additur
The jury awarded Mr. Arnold $256,066.38 in damages for past injuries. This sum is the
exact amount of past medical expenses incurred by Mr. Arnold. Mr. Arnold asserts the award
is inadequate since it did not include any amount for loss of his limbs or for pain and
suffering or loss of earnings.
Nevada has recognized that,
when a limb is lost or severely disabled, the damage to the victim far exceeds just the
medical expenses and loss of earnings. An arm or a leg is an integral, functioning part
of the human body, and because its separation results in disability as well as pain and
suffering it is recognized that an award of medical expenses or an amount slightly over
the medical expenses . . . is inadequate.
Drummond v. Mid-West Growers, 91 Nev. 698, 713, 542 P.2d 198, 208 (1975).
[Headnotes 1, 2]
The jury awarded Mr. Arnold nothing for loss of limbs or for pain and suffering and loss
of earnings. Therefore, the award for past damages was inadequate and the order denying the
motion for additur is reversed.
2
Expert Witness Fees
Expert Witness Fees
____________________

1
decedent.

2
Mr. Arnold claims the award for future damages is also inadequate. After a review of the record we
conclude the award of $1,000,000.00 for future damages is not clearly inadequate.
Expert Witness Fees
[Headnote 3]
Mr. Arnold claims that the district court erred in denying his motion for excess witness
fees pursuant to NRS 18.005(5).
3
The amount of expert witness fees in each case is a matter
within the sound discretion of the trial judge and will not be disturbed unless found to be
manifestly erroneous.
[Headnote 4]
The record reveals that the district court heard argument on the reasonableness and
necessity of the expert testimony and considered these factors in ruling on the motion for
excess fees. The court, in its decision, found Mr. Arnold's argument lacked sufficient support
and denied the motion. This was not an abuse of the court's discretion. Therefore, the order
denying the motion for excess expert fees is affirmed.
Pre-Judgment Interest Rate
The district court awarded Mr. Arnold pre-judgment and post-judgment interest at the rate
of twelve percent per annum. Mt. Wheeler argues that interest should have been awarded at a
rate of eight percent.
The accident in this case occurred on October 4, 1980. At that time, NRS 17.130(2)
provided for interest at the rate of 8 percent per annum. On June 14, 1981, NRS 17.130(2)
was amended to allow for interest at the rate of 12 percent per annum. The statutory history
of this amendment reveals that the change became effective July 1, 1981, and applied to all
causes of action arising on or after July 1, 1981. 1981 Nev. Stats. ch. 739 2, 6 at 1858-59.
[Headnote 5]
In this case, the cause of action arose on October 4, 1980the date of the accident.
Therefore, interest should have been awarded at the rate of eight percent per annum until the
judgment is satisfied, as provided by statute on the date the cause of action arose.
Conclusion
We therefore reverse the order denying Arnold's motion for additur or, in the alternative,
for a new trial limited to the issue of damages, and we remand the case to the district
court with instructions to grant Mr.
____________________

3
For the purposes of NRS 18.010 to 18.150, inclusive, the term costs means:
5. Reasonable fees of not more than five expert witnesses in an amount of not more than $750 for
each witness, unless the court allows a larger fee after determining, pursuant to a hearing, that the
circumstances surrounding the expert's testimony were of such necessity as to require the larger fee.
additur or, in the alternative, for a new trial limited to the issue of damages, and we remand
the case to the district court with instructions to grant Mr. Arnold a new trial limited to the
issue of damages, unless Mt. Wheeler, within twenty days of the date of the filing of this
opinion, agrees to an additur to the judgment in the amount of $175,000.00.
4
See
Drummond, 91 Nev. at 713, 542 P.2d at 208. Additionally, the district court is instructed to
grant interest on the judgment at a rate of eight percent per annum. The order denying the
motion for excess expert fees is affirmed.
____________________

4
This court determined that the damages should be increased by $350,000.00, subject to the fifty percent
reduction to reflect the negligence of each party. NRS 41.141(1), see above, footnote 1.
____________
101 Nev. 616, 616 (1985) State, Dep't Mtr. Vehicles v. Lawlor
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant, v.
DARREN WAYNE LAWLOR, Respondent.
No. 16059
October 22, 1985 707 P.2d 1140
Appeal from district court's reversal of Department of Motor Vehicles Order of
Revocation; Second Judicial District Court, Washoe County; James J. Guinan, Judge.
Department of Motor Vehicles ordered suspension of driver's driving and registration
privileges for violating compulsory insurance law, and driver appealed. The district court
found that respondent was exempt from security and suspension requirements of compulsory
insurance law, and state appealed. The Supreme Court held that uninsured driver's filing
release from liability following automobile accident did not exempt driver from having his
driver and registration privileges suspended for violating compulsory insurance law.
Reversed.
Brian McKay, Attorney General, and Douglas Walther, Deputy Attorney General, Carson
City, for Appellant.
William L. Gardner, Reno, for Respondent.
1. Automobiles.
Purpose of compulsory insurance law [NRS 485.185, 485.326] is, as far as possible, to assure that
motor vehicles have continuous liability insurance and anyone who drives uninsured vehicle which is or
should be registered in state violates such law.
2. Automobiles.
Driver's filing release from liability following automobile accident did not exempt driver from having his
driving and registration privileges suspended for violating compulsory insurance law [NRS 485.185].
NRS 485.200, subd. 8, 485.326.
OPINION
Per Curiam:
This appeal presents the narrow question of whether an exemption to the financial
responsibility law is equally applicable to the compulsory insurance law.
Respondent was involved in a minor automobile accident on October 21, 1983. No one
was injured, but the automobile struck by respondent sustained $582.00 in damages. At the
time of the accident, respondent's automobile was uninsured. It had been in storage and
respondent was driving it to see a potential buyer.
Shortly after the accident, respondent purchased automobile insurance, and on November
21, 1983 he filed a release from liability with the Department of Motor Vehicles.
However, because respondent was driving an uninsured vehicle, he was in violation of
NRS 485.185,
1
Nevada's compulsory insurance law. NRS 485.185 requires drivers of motor
vehicles which are or should be registered in Nevada to continuously maintain security
against tort liability. The Department notified respondent that his driving and registration
privileges were being suspended pursuant to NRS 485.326,
2
the enforcement companion to
NRS 4S5.1S5.
____________________

1
NRS 485. 185 reads:
1. Every registered owner of a motor vehicle registered in this state and every owner of a motor
vehicle which is not registered in this state as required, shall continuously provide with respect to the
motor vehicle while it is either present or registered in this state, by a contract of insurance or by
qualifying as a self-insurer, security in the amounts set forth in NRS 485.105 as proof of financial
responsibility for payment of tort liabilities, arising from maintenance or use of the motor vehicle.
2. Security may be provided by a contract of insurance or by qualifying as a self-insurer in
compliance with this chapter.
3. Whenever an application for a driver's license or for registration of a vehicle is made by a person
required to maintain proof of financial responsibility by the state of his prior residency, he must file proof
with the division of his financial responsibility before he may obtain a license, and maintain it for the
period of time which that state requires. If he does not so maintain it, his license and registration must be
suspended.

2
NRS 485.326 reads:
The department of motor vehicles shall suspend the operation privileges and registration of any
person convicted of violating NRS 485.185. Those operating privileges and registration must remain sus-
ion to NRS 485.185. NRS 485.326 directs the Department to suspend the driving and
registration privileges of a driver convicted of violating NRS 485.185. Suspension continues
until the driver shows proof of financial responsibility. Resuspension occurs if proof of
financial responsibility is not maintained for a period of 3 years.
Respondent challenged the suspension contending that the release from liability he filed on
November 21, 1983 exempted him from having his driving and registration privileges
suspended for violating the compulsory insurance law. A Department hearing officer rejected
respondent's argument and affirmed the suspension pending compliance with NRS 485.326.
On appeal, the district court found that respondent was exempt from the security and
suspension requirements of NRS 485.326 by NRS 485.200(8).
3
Because we conclude that
NRS 485.200(8) does not provide an exemption to the enforcement provisions of the
compulsory insurance law, the decision of the district court must be reversed.
[Headnote 1]
NRS 484.185 is a compulsory insurance law. It requires owners of motor vehicles which
are or should be registered in Nevada to continuously maintain insurance, self-insurance or
security sufficient to satisfy tort liabilities from the maintenance or use of motor vehicles. The
purpose of this, as far as possible, is to assure that motor vehicles have continuous liability
insurance. Nationwide Mut. Ins. Co. v. Liberty Mut. Ins. Co., 401 N.Y.S.2d 676 (N.Y.Sup.Ct.
1976). Anyone who drives an uninsured vehicle which is or should be registered in Nevada
violates NRS 485.185.
____________________
pended until he shows proof of financial responsibility as set forth in NRS 485.307. He shall maintain
proof of financial responsibility for 3 years after the reinstatement of his operating privileges and
registration in accordance with the provisions of this chapter, and if he fails to do so those operating
privileges and registration must again be suspended.

3
NRS 485.200, in pertinent part, reads:
The requirements as to security and suspension in NRS 485.190 to 485.300, inclusive, do not apply:
8. If, before the date that the division would otherwise suspend the license and registration or
nonresident's operating privilege under NRS 485.190, there is filed with the division evidence
satisfactory to it that the person who would otherwise have to file security has been released from liability
or has received a determination in his favor at a hearing conducted pursuant to NRS 485.191, or has been
finally adjudicated not to be liable or has executed a duly acknowledged [Headnote 2]
NRS 4S5.190written agreement providing for the payment of an agreed amount in installments, with
respect to all claims for injuries or damages resulting from the accident.
[Headnote 2]
NRS 485.190 through NRS 485.300 is a financial responsibility law. In essence it requires
that after an accident caused by an uninsured driver, resulting in damage exceeding $350.00
the Department shall suspend his driving and registration privileges until he provides security
sufficient to satisfy claims arising out of the accident and provides proof of future financial
responsibility. If the culpable person has not been released from liability, finally adjudicated
not to be liable, or has not entered into a written installment agreement satisfying all claims
within 20 days after the receipt of an accident report, the Department will proceed in revoking
his driving and registration privileges. NRS 485.20 exempts certain individuals from the
application of the security and suspension requirements of the financial responsibility law.
NRS 485.200 does not apply to violations of the compulsory insurance law.
4

A financial responsibility law operates in two ways. The first of thesethe security
suspension' sectionattempts to impose financial responsibility for past accidents. The
secondthe certification sectionattempts to insure financial responsibility in the event of
future accidents 1 I. Schermer, Automobile Liability Insurance 15.01 (2d ed. 1985). A
financial responsibility act also provides leverage for the collection of damages from
financially irresponsible persons. Chase v. State Farm Mut. Auto. Ins., 641 P.2d 1305, 1307
(Ariz.App. 1982).
Compulsory insurance makes it illegal to register or operate a vehicle without security for
tort liabilities. A financial responsibility law requires security only after an accident has
occurred, or the operator is classified as an habitual offender. The penalties for violation of
both types of statutes are similar in that they result in revocation of operator's license and/or
vehicle registration [footnotes omitted] 6B John Appleman & Jean Appleman, Insurance
Law and Practice 4299, p. 302 (rev. 1979). See also Grimes v. Government Emp. Ins. Co.,
402 N.E.2d 50, 52-54 (Ind.App. 1980). Nevada's financial responsibility law does not attempt
to insure that drivers are continuously covered by liability insurance, but rather, attempts to
insure that damages from accidents are satisfied before driving and registration privileges are
restored. On the other hand, Nevada's compulsory insurance law is mandatory from the outset
and can be violated even where there has been compliance with or exemption from the
financial responsibility law.
Respondent has failed to convince us that the existence of both
____________________

4
Note that NRS 485.200 is expressly limited to the security and suspension requirements of NRS 485.190 to
NRS 485.300.
a financial responsibility law and a compulsory insurance law is inconsistent and illogical.
Rather NRS 485.185 and NRS 485.190 through NRS 485.300 impose separate obligations.
The former insures that vehicles have insurance at all times and the latter creates leverage
when uninsured drivers are involved in accidents.
Furthermore, respondent's interpretation would allow drivers falling within the exemptions
of NRS 485.200 to go unpunished for driving without insurance. These drivers might be
encouraged to drive without insurance in the future, having escaped provisions relating to
proof of future financial responsibility. Certainly the legislature did not intend such an absurd
result.
Accordingly, the district court's decision is reversed and the hearing officer's decision is
reinstated.
____________
101 Nev. 620, 620 (1985) M & R Investment Co. v. Goldsberry
M & R INVESTMENT COMPANY, INC., Appellant,
v. RAY GOLDSBERRY, Respondent.
No. 16154
October 22, 1985 707 P.2d 1143
Appeal from a judgment entered on a jury verdict. Eighth Judicial District Court, Clark
County; Miriam Shearing, Judge.
Former baccarat dealer brought action against employer for intentional interference with
prospective contractual relations. The district court entered judgment in favor of dealer
pursuant to jury verdict, and employer appealed. The Supreme Court held that dealer's failure
to present any evidence that employer had communicated reason for termination to others
precluded finding of employer's intent to interfere with prospective contractual relations.
Reversed.
Johnson, Pilkington & Reynolds and James R. Rosenberger, Las Vegas, for Appellant.
Richard S. Segerblom and Jimmerson & Combs, Las Vegas, for Respondent.
1. Torts.
Intent is essential element of tort in intentional interference with prospective contractual relations.
2. Torts.
Evidence was insufficient to support finding of requisite intent in action by former baccarat
dealer against employer for intentional interference with prospective contractual
relations, where dealer failed to present evidence that employer had somehow
communicated reason for termination to others, but only testified that termination
slips stating that employee "failed to protect the game" implicitly meant he had
allowed cheating.
action by former baccarat dealer against employer for intentional interference with prospective contractual
relations, where dealer failed to present evidence that employer had somehow communicated reason for
termination to others, but only testified that termination slips stating that employee failed to protect the
game implicitly meant he had allowed cheating.
OPINION
Per Curiam:
Respondent Ray Goldsberry was hired by appellant M & R Investment Company, owner
of the Dunes Hotel and Casino, to work as a dealer at the Dunes in 1978. Goldsberry had
worked at other Nevada casinos for sixteen years before joining the Dunes.
In 1981 the Dunes began to make special efforts to attract Asian baccarat
1
players to
replace the declining Mexican trade which had been hurt by the devaluation of the peso.
Morris Schenker, Chairman of the Board at M & R Investment Company, presided over
several meetings with the baccarat dealers and floormen to discuss how the Asian players
should be treated. Schenker told the dealers that Asian players would be allowed to eat at the
table, bend the cards, and take longer than usual to place their bets, all contrary to normal
baccarat rules and procedures. Several dealers, including Goldsberry, testified that they were
told to allow Asians to bet after the cards had started coming out of the shoe. Schenker denied
that he had ever authorized any late or switch betting after the cards had been dealt from the
shoe.
On September 6, 1982 Goldsberry was one of the dealers working the graveyard shift at
the baccarat table when a group of Asians came in to play. Between 6:00 a.m. and 7:30 a.m.
that morning the Asians won over $200,000 playing baccarat. During the game the Asian
players would place bets after the cards had started coming out of the shoe but before any of
the cards were seen.
George Joseph, Chief of Surveillance at the Dunes, testified that he studied the video tape
of the game later that morning and determined that the Asian players had cheated.
Specifically, he noted that player number twelve would, by sleight of hand, enable other
players to see the cards as they exited the shoe.
____________________

1
Baccarat is a relatively simple game of chance. Two hands of cards are dealt, one for the Bank and one
for the Player. Players may bet on either the Bank's hand, the Player's hand, or a tie. The hand which comes
closest to nine when the cards are added up (10s and face cards equal zero) wins. For example, if the two cards
in the Bank's hand were a 9 and a 6, which adds up to 15, the Bank's hand would be valued at 5; you ignore the
first digit in determining the hand's value. The players are allowed to deal the cards from the shoe which holds
the deck of cards. All bets are normally placed before any cards come out of the shoe even though the cards are
face down when dealt.
noted that player number twelve would, by sleight of hand, enable other players to see the
cards as they exited the shoe. The players would then switch their bets from bank to player, or
vice versa, according to what the cards were.
Goldsberry, four other dealers, two floormen and the baccarat shift boss were fired later
that afternoon. Their termination slips stated failed to protect the game as the reason for
termination. Goldsberry and two other witnesses testified that failed to protect the game
means that you allowed cheating and that it would be very difficult to get a job with that
designation on your record.
Goldsberry testified that he did not attempt to stop the late betting, switching or capping
(adding more chips to your bet) because other dealers had been previously reprimanded for
attempting to stop late bets and because the floormen told him not to when he asked them if
he should. He also testified that the players never changed their bets after the cards were
turned over.
Goldsberry looked for work for five months before securing a position as a Blackjack and
Roulette dealer at the Nevada Palace at a reduced salary. Goldsberry brought suit against
appellant seeking damages for (1) wrongful termination; (2) breach of implied contract of
employment; (3) interference with prospective business advantage; and (4) conversion.
Goldsberry voluntarily dismissed his conversion claim prior to trial. At the conclusion of
Goldsberry's case in chief the district court granted appellant's motion to dismiss the wrongful
termination and breach of contract claims pursuant to Nevada Rule of Civil Procedure 41(b).
The jury returned a verdict of $78,284.70 for Goldsberry on the intentional interference with
prospective business advantage claim.
Appellant contends that the evidence is insufficient to support a finding that appellant
intentionally interfered with Goldsberry's prospective contractual relations. We agree and
therefore reverse the judgment awarding Goldsberry damages. This court will not hesitate to
disturb a verdict or decision where there is no substantial conflict in the evidence on any
material point and the verdict or decision is manifestly contrary to the evidence. Canfield v.
Gill, 101 Nev. 170, 171 697 P.2d 476 (1985).
[Headnotes 1, 2]
To establish a prima facie case of intentional interference with prospective contractual
relations, a plaintiff must present evidence to show that the interference is intentional. See
Restatement (Second) of Torts 766B (1977). See also Local Joint Exec. Bd. v. Stern, 98
Nev. 409, 651 P.2d 637 (1982). In Lekich v. International Bus. Mach. Corp., 469 F.Supp. 485
(E.D.Pa. 1979) a federal district court granted the defendant's motion for summary judgment
because of the lack of evidence on the element of intent:
summary judgment because of the lack of evidence on the element of intent:
[T]here can be no doubt that proof of intentional interference is a sine qua non of the
tort. No such proof is possible here, nor is it seriously alleged. We conclude, as a matter
of law, that the unchallenged fact that IBM did not release any information about the
Lekich matter to any third party, except the dates of employment and title of position
released to American Honda . . . precludes a finding of intentional interference with
prospective contractual relations.
(Emphasis in original.) Id. at 489. It is undisputed that appellant never communicated the
reason for Goldsberry's termination to his prospective employers. Goldsberry's failure to
present any evidence that appellant had somehow communicated the reason for his
termination to others precludes a finding that appellant intended to interfere with Goldsberry's
prospective contractual relations. Because the jury's verdict is not supported by substantial
evidence, we reverse the judgment for Goldsberry. Given our decision on this issue, we need
not address appellant's remaining contentions.
____________
101 Nev. 623, 623 (1985) Sigel v. McEvoy
MARTIN B. SIGEL, Appellant, v.
THOMAS McEVOY, Respondent.
No. 15412
October 23, 1985 707 P.2d 1145
Appeal from order dismissing appellant's complaint, Eighth Judicial District Court, Clark
County; Miriam Shearing, Judge.
Financial backer of poker player brought action for breach of oral contract. The district
court dismissed complaint for failure to state claim and backer appealed. The Supreme Court
held that agreement between backer and poker player, whereby backer agreed to pay player's
costs in entering lawful poker tournament in return for 20 percent of any winnings player
might receive, was lawful business arrangement not barred by rule that gaming debt was not
legally enforceable.
Reversed and demanded.
George Foley, Sr., Las Vegas, for Appellant.
Schreck, Sloan, Bernhard & Jones, Las Vegas, for Respondent.
Gaming.
Financial backer's agreement with poker player, whereby backer agreed to pay player's costs in entering
lawful poker tournament in return for 20 percent of any winnings player might receive, was legitimate
business arrangement, and backer's action for breach of agreement was not improper attempt to enforce
gaming debt.
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing appellant's complaint
against respondent on the ground that the complaint failed to state a claim upon which relief
could be granted. See NRCP 12(b)(5). For the reasons set forth below, we reverse the district
court's order of dismissal.
In his complaint in the district court, appellant alleged that he and respondent entered into
an oral agreement in the spring of 1983. Under the terms of this agreement, appellant agreed
to pay respondent's costs in entering a poker series sponsored by the Horseshoe Club in Las
Vegas, and respondent, in return, agreed to pay appellant twenty percent of any winnings he
might receive in the series. Appellant further alleged that he had paid respondent to enter two
separate tournaments in the poker series and that respondent won approximately $657,000 in
these two tournaments. According to appellant's complaint, respondent paid appellant only
$21,400 of the $131,400 respondent allegedly owed him. Appellant's complaint therefore
sought the remaining $110,000 from respondent.
Respondent subsequently moved the district court to dismiss appellant's complaint
pursuant to NRCP 12(b)(5), for failure to state a claim for relief. Specifically, respondent
contended that appellant's cause of action was premised upon an unenforceable gaming debt.
The district court agreed and entered an order of dismissal. This appeal ensued.
This court has traditionally followed the common law doctrine, as originally expressed in
Statute of 9 Anne, c. 14, 1, that a gaming debt is not legally enforceable. See, e.g., Sea Air
Support, Inc. v. Herrmann, 96 Nev. 574, 613 P.2d 413 (1980); Burke v. Buck, 31 Nev. 74, 99
P. 1078 (1909); Evans v. Cook, 11 Nev. 69 (1876). In 1983, the legislature enacted NRS
463.361(1), which provides in part that gaming debts not evidenced by a credit instrument
are void and unenforceable and do not give rise to any administrative or civil cause of
action. Thus, the legislature to some extent modified the common law prohibition against
enforcement of gaming debts. NRS 463.361(1), however, was enacted after the parties
entered into their agreement and after the two tournaments in question.
two tournaments in question. The statute is therefore not applicable to the present case. See
1983 Nev. Stat. 1847 (NRS 463.361(1) is applicable only to transactions occurring on or after
the effective date of the statute, May 26, 1983); see also NRS 463.368(1). Accordingly, we
must look to the dictates of the common law to determine the enforceability of the parties'
agreement.
As indicated above, the common law generally provides that gaming debts are not legally
enforceable. Appellant admits as much, but contends that the debt respondent allegedly owes
him should not be characterized as a gaming debt; appellant instead seeks to characterize his
agreement with respondent as a joint business venture. In support of his argument,
appellant relies primarily upon our opinion in Johnston v. DeLay, 63 Nev. 1, 158 P.2d 547
(1945).
In Johnston, the plaintiffs had leased to defendants certain property in Clark County,
consisting of a bar, a motel, and a licensed gaming area. Pursuant to the lease agreement, the
defendants agreed to pay the plaintiffs a certain percentage of the profits they obtained from
the business as rent for the leased property. The plaintiffs subsequently sought to regain
possession of the property in a district court proceeding, and attacked the lease in part on the
ground that the lease was void as against public policy because the rental provision in the
lease was based upon profits received in part from gaming operations. The district court,
however, entered judgment in defendants' favor and plaintiffs then appealed to this court.
On appeal, the plaintiffs in Johnston renewed their argument that the lease agreement
violated public policy. The plaintiffs relied upon the general common law doctrine that
gaming debts are legally unenforceable. We concluded, however, that the rental agreement
did not fall within the scope of the common law prohibition against gaming debts despite the
fact that the rent was to be paid in part from gaming profits.
First, we noted that the defendants had a lawful right to conduct gaming activities because
their casino had been dully licensed by the state, and we noted that the agreement to divide
the profits of this lawfully conducted business was in the nature of a commonplace business
arrangement. Id. at 11, 158 P.2d at 552. Further, we noted that the rental agreement was not
like the typical unenforceable gaming debt because it was not based upon the profits or
losses of a game played by the defendants and the plaintiffs, whereby one would take a
chance of winning or losing to the other. . . . Id. We therefore concluded that the agreement
was legally enforceable.
Appellant contends that his agreement with respondent should similarly be characterized
as a legitimate business arrangement rather than a common law gaming debt under the
rationale of Johnston.
similarly be characterized as a legitimate business arrangement rather than a common law
gaming debt under the rationale of Johnston. We agree. Appellant allegedly provided
respondent with funds to cover respondent's costs in entering a lawful poker tournament
sponsored by a duly licensed Las Vegas casino in which appellant did not participate. If his
evidence prevails, their agreement was to divide between themselves the profits made in the
tournament, and was not a situation in which one player was to lose to the other.
1

We can perceive of no logical basis for distinguishing between loans made to private
individuals to engage in lawful wagering and loans made to casinos to engage in the same
activities, where the ultimate purpose of the loans in both instances is to divide the benefits of
any profits accrued from the wagering.
2
See generally Weisbrod v. Fremont Hotel, 74 Nev.
227, 326 P.2d 1104 (1958) (court refuses to distinguish between gaming patrons and gaming
casinos for purposes of common law prohibition against gaming debts.).
In light of the above, we conclude that the agreement entered into by appellant and
respondent was legally enforceable. Accordingly, we conclude that the district court erred by
granting respondent's motion to dismiss appellant's complaint, and we therefore reverse the
district court's decision and remand this matter for further proceedings.
____________________

1
We note that all of the Nevada cases relied upon by respondent in support of his argument that gaming debts
are unenforceable are cases in which one party loaned money to another party to enter into wagering between
themselves. See, e.g., Sea Air Support, Inc. v. Herrmann, supra; Corbin v. O'Keefe, 87 Nev. 189, 484 P.2d 565
(1971); West Indies v. First Nat. Bank, 67 Nev. 13, 214 P.2d 144 (1950); Burke v. Buck, supra; Scott v.
Courtney, 7 Nev. 419 (1872).

2
To the extent that our holdings in Johnston and the present case are in conflict with the language used in
Statute of 9 Anne, supra, we hereby decline to follow that portion of the statute. We do not, however, deviate
from our previous holdings announced regarding the enforceability of gaming debts incurred between two
players in the same game or between a casino and a patron; these traditional forms of gaming debts will still not
be enforceable unless they come within the scope of NRS 463.361(1), supra.
____________
101 Nev. 627, 627 (1985) Milligan v. State
RONNIE G. MILLIGAN, Appellant, v. THE STATE
No. 13839
TERRY CARL BONNETTE, Appellant, v. THE STATE
No. 14530
KATHERINE L. ORFIELD, Appellant, v. THE STATE
No. 15002
PARIS LEON HALE, Appellant, v. THE STATE
No. 15003
October 28, 1985 708 P.2d 289
Appeals from judgments of conviction; Sixth Judicial District Court, Humboldt County;
Llewellyn A. Young, Judge.
Four defendants were convicted of participating in robbery and murder of 77-year old
woman in district court and they appealed. The Supreme Court held that: (1) quantification of
reasonable doubt in cases of three defendants was reversible error; (2) trial court was not
required to define first degree murder sua sponte during voir dire; (3) failure to administer
blood-alcohol test to defendant was not prejudicial; (4) jury instructions objected to were
proper; and (5) post-verdict report by trial judge was unnecessary.
Affirmed, No. 13839; reversed and remanded, Nos. 14530, 15002 and 15003.
[Rehearing denied April 3, 1986]
John L. Conner, Reno, for Appellant Milligan.
Brian McKay, Attorney General, Brian Hutchins, Deputy Attorney General, Carson City,
for Respondent.
Gary D. Woodbury, Elko, for Appellant Bonnette.
Brian McKay, Attorney General, Carson City, Virginia Shane, District Attorney, William
C. Jeanney, Deputy District Attorney, O. Kent Maher, Deputy District Attorney, Humboldt
John McCormick, Fallon, for Appellant Orfield.
Brian McKay, Attorney General, Virginia Shane, District Attorney, O. Kent Maher,
Deputy District Attorney, Humboldt County, for Respondent.
Donald K. Coppa, Reno, for Appellant Hale.
Brian McKay, Attorney General, Virginia Shane, District Attorney, O. Kent Maher,
Deputy District Attorney, Humboldt County, for Respondent.
1. Criminal Law.
Judge's attempt to quantify degree of proof needed to establish reasonable doubt, defining concept in
manner other than that set out by legislature in NRS 175.211, was reversible error.
2. Jury.
Failure of trial court to define first degree murder during voir dire for veniremen was not error where
defendant's attorney made no effort to define first degree murder for prospective jurors.
3. Jury.
Delineation of various elements of first degree murder for jury on voir dire was not required since first
degree murder is term within common understanding of average juror so as to enable juror to respond
accurately to Adams style voir dire questioning, and voir dire definition of first degree murder could result
in confusion of jurors who would be anticipating proof of various elements of offense which are not
applicable to case.
4. Criminal Law.
Defendant's trial counsel was not ineffective due to counsel's failure to challenge for cause three jurors
who had rather strong opinions on death penalty, where three jurors complained or indicated that they
could be sympathetic to claim of alcohol-induced diminished capacity, defendant's only defense.
5. Criminal Law.
Trial court's error, in ruling that prospective juror's belief in adage of an eye for an eye was irrelevant,
was harmless beyond reasonable doubt as prospective juror involved stated unequivocally that she could
put aside any personal beliefs and follow law as instructed by judge.
6. Criminal Law.
Admission of certain photographs of murder victim killed with sledgehammer was not abuse of
discretion.
7. Criminal Law.
Failure of police to administer blood-alcohol test to defendant in murder trial was not so prejudicial as to
require reversal where blood-alcohol test would have been inconclusive or defendant who had continued to
drink between time of murder and his arrest, and who was permitted to introduce other evidence regarding
his intoxication.
8. Criminal Law.
Judge's instruction to jury during guilt phase of trial regarding credibility of witness testimony, was not
error where instruction read in its entirety clearly showed jury that it was ultimate judge of weight and
worth of evidence.
9. Criminal Law.
Nevada's death penalty did not violate State and Federal Constitutions.
10. Homicide.
Underlying felony of robbery was properly used as aggravating circumstance for purposes of imposition
of death penalty for defendant convicted of first degree murder.
11. Homicide.
At sentencing hearing for defendant convicted of first degree murder, instruction informing jury that it
must not be swayed by any sentiment, sympathy, passion or prejudice was proper where jury was
correctly instructed that it was possessed with power of mercy, and on its ability to consider any mitigating
factors it found from evidence.
12. Homicide.
Instructing jury in first degree murder case that they could consider all of evidence presented in guilt
phase of trial during their sentencing deliberations was proper where defendant failed to object to this
instruction, and admission of evidence did not abuse trial judge's discretion. NRS 175.552.
13. Criminal Law.
Jury instruction that jury was not to speculate as to whether sentence imposed might be changed by
pardon or parole, was not reversible error, where defendant had requested this instruction, regardless of
fact that instruction was improper.
14. Criminal Law.
Jury instruction allegedly inconsistent with other instructions of burden of proof regarding aggravating
and mitigating circumstances, was not reversible error where defendant failed to object to instruction at
trial and on appeal conceded that any error was beneficial to him.
15. Criminal law.
Failure of trial judge to give requested instructions limiting nature of aggravating circumstances available
for jury's consideration was proper where review of instructions actually given jury revealed that
instructions refused were cumulative with other instructions given.
16. Criminal Law.
Defendant who failed to request change in order of argument could not challenge order of penalty phase
of closing arguments on appeal.
17. Criminal Law.
Post-verdict report completed by trial judge to apprise appellate court of relevant considerations not
apparent on record, was not necessary for effective appellate review.
18. Criminal Law.
Incident of alleged prosecutorial misconduct occurring during voir dire or at closing argument did not
constitute grounds for reversal, irrespective of defendant's failure to object to them at trial.
19. Homicide.
Sentence of death for defendant convicted of first degree murder for death of victim by sledgehammer,
where aggravating circumstances were underlying felony of robbery, was not disproportionate or excessive.
OPINION
Per Curiam:
Ronnie Milligan, Paris Leon Hale, Katherine Orfield and Terry Carl Bonnette stand
convicted of participating in the robbery and murder of Ms Zolihan Voinski, a 77-year old
woman.
murder of Ms Zolihan Voinski, a 77-year old woman. Milligan was found guilty of first
degree murder and sentenced to die. Hale was convicted of first degree murder and robbery
with the use of a deadly weapon upon the person of the age of 65 years or older. He was
sentenced to life imprisonment with the possibility of parole, to run concurrently with a seven
and one-half year term for robbery and consecutively with two additional seven and one-half
years terms for use of a deadly weapon and for committing the crime on a person over the age
of 65 years. Katherine Orfield was found guilty of second degree murder and robbery. She
was given sentences of life imprisonment and fifteen years. Terry Bonnette was convicted of
first degree murder and robbery with the use of a deadly weapon on a person over the age of
65 years. Bonnette was sentenced to life imprisonment without possibility of parole and to
three consecutive five-year terms.
Because all of these appeals arise from the same set of operative facts and, further, because
some of the legal issues involved are identical, we have chosen to consolidate them.
THE FACTS
The state's chief witness at each of the appellants' trials was Ramon Houston, an illegal
alien whom the appellants had picked up hitchhiking a few days before the murder. Houston
was given complete immunity in exchange for his testimony.
Houston testified that on July 4, 1980, he had been traveling with the group for three or
four days. They were headed west on Interstate 80 when they stopped at the Valmy rest area
to have lunch.
While at the rest area the group met Zolihan Voinski. Ms. Voinski was driving a
Volkswagon van which, for some unexplained reasons, was disabled at the rest area. Hale
made an unsuccessful attempt to start the van for Ms. Voinski.
After some discussion, the entire group, including Ms. Voinski, climbed into Bonnette's
car. With Bonnette driving, they proceeded west until they turned off the interstate.
According to Houston, they turned on a dirt road and drove for a few minutes; then Bonnette
stopped the car.
Hale got out of the back seat and pulled Ms. Voinski out of the car. While Hale repeatedly
hit Ms. Voinski on the head with a screwdriver, Bonnette and Orfield tore her purse from her
hands.
Houston testified that he stayed near the back of the car and was afraid to intercede on Ms.
Voinski's behalf. As he turned away and then looked back, Houston saw Ms. Voinski lying on
the ground and Milligan hitting her head with a sledgehammer.
When the assault abated, Milligan put the sledgehammer in the front seat of the car while
Hale and Bonnette talked things over. The group, including Houston, got back in the car
leaving Ms.
Ms. Voinski bleeding on the desert floor. As they left, Bonnette handed Ms. Voinski's money
to Hale. Before reentering the interstate Orfield wiped the blood from the sledgehammer and
gave it to Houston to throw into the desert. At the same time Houston hid Ms. Voinski's purse
in a bush.
According to Houston, the group returned to the rest area where Hale and Milligan
climbed into Ms. Voinski's van. Both vehicles headed west for a short while until they
stopped so Bonnette could join Hale and Milligan in the van. They then proceeded on for
some time until they met at a bar.
Once at the bar, Houston claimed that he had to use the restroom so he could get away
from the group. Houston climbed out the restroom window and attracted the attention of
someone who helped him contact law enforcement officers. Those officers eventually
arrested the appellants.
Ms. Voinski was found in the desert and taken to hospital where she remained in a coma
until July 25, 1980, when she died.
I.
The Quantification of Reasonable Doubt
This assignment of error is dispositive of the Bonnette, Orfield and Hale cases. It is
inapplicable to Milligan's appeal.
[Headnote 1]
The laws of this state, as expressed both by statute and decisions of this court, forbid any
attempt by a trial judge to define the concept of reasonable doubt in any manner other than
that set out by the legislature in NRS 175.211. McCullough v. State, 99 Nev. 72, 657 P.2d
1157 (1983). Likewise, any attempt to quantify the degree of proof needed to establish a
reasonable doubt is impermissible. As we held in McCullough: The concept of reasonable
doubt is inherently qualitative. Any attempt to quantify it may impermissibly lower the
prosecutor's burden of proof, and is likely to confuse rather than clarify. 99 Nev. at 75, 657
P.2d at 1159.
In the instant cases the trial judge used various examples ranging from the amount of air in
a balloon to a scale of one to ten, in efforts to quantify the concept of reasonable doubt. In
addition to these comments the trial judge instructed the juries in language identical to that
used in McCullough, above:
It is not necessary that the defendant's guilt should be established beyond a reasonable
doubt or to an absolute certainty, but instead thereof that the defendant's guilt must be
established beyond a reasonable doubt as hereinafter defined.
While we have no doubt that the judge was trying to aid the jury in understanding its
role, his comments require us to reverse the convictions of Bonnette, Orfield and Hale and
remand them for new trials.
jury in understanding its role, his comments require us to reverse the convictions of Bonnette,
Orfield and Hale and remand them for new trials. These cases are indistinguishable from
McCullough; and, therefore, we have no choice other than to reverse the convictions.
II.
Ronnie Milligan
A.
Whether Voir Dire Must Include a Definition of
First Degree Murder
Milligan asserts that the trial court erred because it did not sua sponte define first degree
murder during voir dire for the veniremen. He argues that in order to determine if the
prospective jurors were capable of following the law regarding the death penalty they must
first have the elements of the crime defined for them.
[Headnote 2]
In addressing this argument we first note that Milligan's attorney made no effort to define
first degree murder for the prospective jurors. For that reason alone we need not address this
alleged error. Snow v. State, 101 Nev. 439, 705 P.2d 632 (1985). Nevertheless, because this
is a death penalty case and requires a heightened review, we turn to the merits of this claim.
[Headnote 3]
Under Whitherspoon v. Illinois, 391 U.S. 510 (1968), reh'g denied, 393 U.S. 898 (1968),
as further defined in Adams v. Texas, 448 U.S. 38 (1980), jurors whose views would
prevent or substantially impair the performance of their duties as jurors in accordance with
the instructions and juror's oath are not qualified to serve. The purpose of this rule is obvious:
to ensure both the accused and the state a verdict founded on legal principles, not the
individual ideologies of the jurors. We do not consider it necessary to the administration of
this rule that the various elements of first degree murder be delineated for the jury. We reach
this conclusion for several reasons.
First, we believe that the term first degree murder is such that the common
understanding of the average juror would already include a knowledge of the term sufficient
to respond accurately to Adams style voir dire questioning. Secondly, a voir dire definition of
first degree murder could result in confusion of jurors who would be anticipating proof of
various elements of the offense which are not applicable to the case. See Oliver v. State, 85
Nev. 418, 456 P.2d 431 (1969), wherein we held that the appropriate points in a trial to
discuss legal issues are during the instructions and closing arguments.
appropriate points in a trial to discuss legal issues are during the instructions and closing
arguments.
We see no merit to this assignment of error.
B.
The Failure of Milligan's Counsel to
Challenge Selected Jurors
[Headnote 4]
Milligan argues that his trial counsel was ineffective because of counsel's failure to
challenge for cause three jurors who had rather strong opinions on the death penalty.
Preferring an evidentiary hearing of the matter, we have traditionally refused to pass on
questions of ineffective trial counsel on direct appeal except where counsel's actions are
inconsistent with even a modicum of effective advocacy. See Mazzan v. State, 100 Nev. 74,
675 P.2d 409 (1984).
The three jurors Milligan complains of indicated that they could be sympathetic to a claim
of alcohol-induced diminished capacity, Milligan's only defense. Therefore a valid trial tactic
might have been to include those veniremen as jurors. Without ruling out the possibility of a
subsequent evidentiary hearing predicated on the appropriate motion, we decline to hold that
Milligan's counsel was so ineffective as to rise to the level of that of Mazzan.
C.
The Scope of Voir Dire
During the voir dire Milligan's attorney asked a prospective juror whether she believed in
the biblical expression of an eye for an eye. The trial court sustained an objection to the
question on grounds of relevancy. Milligan now asserts that ruling was error.
[Headnote 5]
When attempting to empanel a jury in a capital murder trial a number of issues arise which
are not relevant to any other form of litigation. Because a verdict of guilty leads to the
ultimate question of whether the accused should be executed, a decision of paramount
importance to the defendant, the personal beliefs and convictions of the members of the jury
are highly relevant. A defendant is entitled to explore the prospective juror's values and
personal convictions, including those reflected in or reflective of religious beliefs. We hold
that the trial court erred when it ruled that the prospective juror's belief in the adage of an
eye for an eye was irrelevant. Nevertheless, we further hold that under the guidelines of
Chapman v. California, 3S6 U.S. 1S {1967), reh'g denied, 3S6 U.S. 9S7 {1967), such error
was harmless beyond a reasonable doubt as the prospective juror involved stated
unequivocally that she could put aside any personal beliefs and follow the law as
instructed by the judge.
D.
The Admission of Certain Photographs
guidelines of Chapman v. California, 386 U.S. 18 (1967), reh'g denied, 386 U.S. 987 (1967),
such error was harmless beyond a reasonable doubt as the prospective juror involved stated
unequivocally that she could put aside any personal beliefs and follow the law as instructed
by the judge.
D.
The Admission of Certain Photographs
[Headnote 6]
Milligan argues that photographs of Ms. Voinski were improperly admitted and that they
were more prejudicial than probative. The court has reviewed these photographs and finds
that their admissibility was not an abuse of discretion. Dearman v. State, 93 Nev. 364, 566
P.2d 407 (1977).
E.
The Failure to Administer a Blood-Alcohol
Test to Milligan
Here Milligan asserts that the state was responsible for the loss of valuable evidence (his
level of intoxication) due to the failure of the police to administer a blood-alcohol test to him
immediately following his arrest.
In Wood v. State, 97 Nev. 363, 632 P.2d 339 (1981), we held that in order for the loss or
destruction of evidence to constitute the basis of a reversal the appellant must show either bad
faith or connivance on the part of the government or prejudice resulting from the loss. In the
instant appeal there is neither an allegation nor proof of bad faith or connivance. We must
therefore determine whether Milligan has been prejudiced to a degree requiring reversal.
In order to justify a reversal the lost evidence must be reasonably anticipated to be both
exculpatory and material to the appellant's defense. Boggs v. State, 95 Nev. 911, 604 P.2d
107 (1979). In Boggs we also held that [i]t is not sufficient that the showing disclose merely
a hoped-for conclusion from examination of the destroyed evidence, nor is it sufficient for the
defendant to show only that examination of the evidence would be helpful in preparing his
defense. 95 Nev. at 913, citing United States v. Agurs, 427 U.S. 97 (1976) and State v.
Koennecke, 565 P.2d 376 (Or.App. 1977).
[Headnote 7]
We fail to discern any prejudice to Milligan resulting from the failure to test his
blood-alcohol content. The record indicates that he had continued to drink between the time
of the murder and his arrest.
arrest. Therefore a blood-alcohol test would have been inconclusive as to his degree of
intoxication at the time of the crime, several hours before the arrest. Also, Milligan was
permitted to introduce other evidence regarding his intoxication, including the supplemental
arrest report and Houston's testimony that before the killing Milligan had been drinking
brandy and wine fast and fast and fast.
This opinion should not be read to mean that law enforcement officers are under no
circumstances required to use their own initiative in obtaining a blood-alcohol sample from a
suspect. Where the crime and the arrest occur in a reasonable temporal proximity and where
the police reasonably believe that the suspect has committed a crime, and it further appears
that the suspect's cognitive capacity is impaired by alcohol, a test may be required. That not
being the case here, we find no merit to this assignment of error.
F.
Instruction No. 6 in the Guilt Phase
Milligan argues that the trial court erred by granting Instruction No. 6 during the guilt
phase of his trial. The part of the instruction with which Milligan takes exception reads:
If you believe that a witness willfully lied as to a material fact, you should distrust the
rest of his testimony and you may, but are not obliged to, disregard all the testimony.
Milligan asserts that the instruction erroneously instructs the jury as to matters of fact in
violation of the Nevada Constitution, article 6 section 2 and NRS 175.161(1).
[Headnote 8]
We have noted initially that Milligan failed to object to the instruction at trial,
nevertheless, we have considered the instruction and conclude that it was not error. When the
instruction is read in its entirety, it is clear that the jury was properly instructed that it was the
ultimate judge of the weight and worth of the evidence.
G.
Constitutionality of Nevada's Death Penalty
[Headnote 9]
Milligan argues that Nevada's death penalty is violative of our state and federal
constitutions. We have recently considered this argument and found it to have no merit.
Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985). That finding remains valid.
H.
Use of the Underlying Felony as an
Aggravating Circumstance
[Headnote 10]
The jury determined that the sole aggravating circumstance was as follows:
That the murder was committed while the defendant was engaged, or was an
accomplice, in the commission of or an attempt to commit, or flight after committing or
attempting to commit, robbery.
Milligan argues that the underlying felony, robbery, may not be used further as an aggravating
circumstance. We discussed and dismissed this argument in Petrocelli v. State, 101 Nev. 46,
692 P.2d 503 (1985).
I.
Instruction No. 1 During the Sentencing Hearing
Milligan asserts that the trial court erred by granting Instruction No. 1 during the
sentencing phase of his trial. That instruction informed the jury that it must not be swayed by
any sentiment, sympathy, passion or prejudice for or against the defendant, or by any
guesswork as to the facts.
[Headnote 11]
Milligan argues that the jury may rightly consider sympathy for him during the penalty
phase of the trial. We addressed a similar argument in Nevius, above, and rejected it.
Milligan's jury was correctly instructed that it was possessed with the power of mercy. Also,
the jury was properly instructed on its ability to consider any mitigating factors it found from
the evidence. We therefore conclude that the granting of this instruction was not error.
J.
Use of Evidence Presented in the Guilt Phase
at the Penalty Phase
[Headnote 12]
The district judge instructed the jury that they could consider all of the evidence presented
in the guilt phase of trial during their sentencing deliberations. We note that there was no
objection to this instruction. That procedural defect notwithstanding, we also fail to see any
error. By statute, questions of admissibility during the penalty phase of a capital murder trial
are largely left to the discretion of the trial judge. NRS 175.552. We find no abuse of that
discretion here.
K.
Penalty Phase Instruction No. 4
Milligan argues here that the trial court erred in granting Instruction No. 4 in the penalty
phase.
1
Specifically, he argues that the instruction implies that death is the only sentence the
jury can impose which might not ultimately be altered by either parole or pardon, thus tilting
the jury toward the death sentence.
In Petrocelli, above, we expressly approved a similar instruction but with a critical
distinction. Part four of the instruction approved in Petrocelli reads:
4. Although under certain circumstances and conditions the State Board of Pardons
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.
(Emphasis added).
The distinction between the instruction given in the instant case and that suggested in
Petrocelli is critical for its cures the defect now suggested by Milligan. An instruction such as
the one given in this case should not be given.
[Headnote 13]
Nevertheless, a compelling reason prevents us from finding that the granting of Instruction
No. 4 is reversible in this case: Milligan requested it. We therefore conclude that any error
committed by giving the subject instruction was invited and cannot be asserted as grounds for
reversal. State v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950).
L.
Penalty Phase Instruction No. 7
[Headnote 14]
Milligan complains that this instruction was inconsistent with other instructions on the
burden of proof regarding aggravating and mitigating circumstances.
____________________

1
Instruction No. 4.:
1. Life imprisonment with the possibility of parole means 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 period of time.
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. You are instructed that you may not speculate as to whether your sentence may be changed at a
later date.
and mitigating circumstances. As Milligan failed to object to the instruction at trial and on
appeal concedes that any error was beneficial to him, we decline to find reversible error. State
v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950).
M.
The Failure to Grant Instruction No. 1 and 2
During the penalty phase of trial, the defense requested to instructions limiting the nature
of aggravating circumstances available for the jury's consideration. The trial judge refused
these instructions on the ground that their content had already been covered in another
instruction.
[Headnote 15]
Review of the proffered instructions reveals that they correctly state the law; however,
review of those instructions actually given the jury reveals that the trial court correctly found
those refused to be cumulative. We have consistently held that a trial court need not grant
cumulative instructions. Roland v. State, 96 Nev. 300, 608 P.2d 500 (1980); Beets v. State,
94 Nev. 89, 575 P.2d 591 (1978).
N.
The Order of Closing Argument
[Headnote 16]
Milligan challenges the order of the penalty phase closing arguments in this assignment of
error. Specifically, he asserts that he should have been allowed the last word at argument.
As no request was made of the trial court for a change in the order of argument, we consider
the issue waived.
O.
The Necessity of Post-Verdict Judicial Reports
[Headnote 17]
Milligan argues that meaningful appellate review cannot be accomplished without a
post-verdict report completed by the trial judge. Milligan asserts that such a report would
allow this court to be apprised of relevant considerations not apparent in the record.
We are reluctant to impose such a duty on the district court judges. The benefits to be
gained by this type of report do not justify either the time or expense in would require. This
court carefully examines the record in the cases before it, giving particular attention to those
involving the death penalty. Any error not apparent on the face of the record may still be
brought to the court's attention through the appropriate writ. We therefore conclude that a
report such as that requested here is unnecessary for effective appellate review.
conclude that a report such as that requested here is unnecessary for effective appellate
review.
P.
[Headnote 18]
Milligan next complains of several incidents of what he terms prosecutorial misconduct,
occurring either during voir dire or at closing argument. None of these incidents was objected
to at trial and we are therefore not obliged to consider them. Mercado v. State, 100 Nev. 535,
688 P.2d 305 (1984). Nevertheless, consistent with the concept of heightened review of
capital cases, we have examined the alleged errors and found no ground for reversal.
Q.
Proportional Review
[Headnote 19]
We have reviewed our other cases in which the sentence of death has been imposed to
determine whether Milligan's sentence is disproportionate or excessive. Our review leads us
to conclude that the sentence of death is neither disproportionate nor excessive.
We also conclude from the record that the sentences of death were not imposed under the
influence of passion, prejudice or any arbitrary factor.
III.
The convictions of Terry Bonnette, Leon Paris Hale and Katherine Orfield
2
are hereby
reversed. Those cases are remanded to the district court for further proceedings consistent
with this opinion. Hale's motion for argument is dismissed as moot.
The conviction and sentence of death of Ronnie Milligan is hereby affirmed.
3

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

2
The Honorable David Zenoff, Senior Justice, was designated by the Chief Justice to participate in Orfield v.
State, No. 15002. Nev. Const., art. 6, 19; SCR 10.

3
The Honorable Cliff Young, Justice, did not participate in the consideration of these appeals.
____________
101 Nev. 640, 640 (1985) Jeep Corporation v. Murray
JEEP CORPORATION, a Nevada Corporation; AMERICAN MOTORS CORPORATION, a
Foreign Corporation; CAL-VADA AUTO, a Nevada Corporation, Appellants and
Cross-Respondents, v. OWEN PATRICK MURRAY, Respondent and Cross-Appellant.
No. 15354
October 29, 1985 708 P.2d 297
Appeal from judgment on jury verdict and from orders denying appellants' motion for
mistrial, motion for involuntary dismissal, motion for new trial, motion for judgment
notwithstanding the verdict, motion to amend the judgment, and motion to stay proceedings.
Cross-appeal from judgment and from orders excluding evidence and refusing proposed
instruction on punitive damages. Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
Driver injured when motor vehicle rolled off road brought products liability action against
manufacturers and seller of vehicle. The district court awarded driver $815,000.
Manufacturers and seller appealed judgment and orders denying certain motions, and driver
cross-appealed judgment and order refusing instruction on punitive damages. The Supreme
Court, Berkson, District Judge, held that: (1) trial court did not abuse discretion by allowing
accident reconstruction expert to testify; (2) there was sufficient evidence to find causation;
(3) trial court acted properly in excluding evidence concerning presence and use of seat belts;
(4) evidence of subsequent remedial measures in strict liability actions was admissible; (5)
jurors could not impeach their own verdict; and (6) evidence was insufficient to warrant
instruction on punitive damages.
Affirmed.
[Rehearing denied February 11, 1986]
Lionel, Sawyer & Collins and David N. Frederick, Las Vegas; Erickson, Thorpe,
Swainston & Cobb, Reno, for Appellants and Cross-Respondents Jeep Corporation and
American Motors Corporation.
Shamberger, Georgeson, McQuaid & Thompson, Reno; Sala, McAuliffe, White & Long,
Reno, for Appellant and Cross-Respondent Cal-Vada Auto.
Peter Chase Neumann and Kathryn Landreth, Reno, for Respondent and Cross-Appellant.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Motor Vehicle Manufacturers
Association of the United States and Product Liability Advisory Council, Amici Curiae.
David Gamble, Carson City; Michael Starr, Washington, D. C.; and Daniel F. Sullivan,
Seattle, Washington, for American Trial Lawyers Association, Amicus Curiae.
1. Evidence.
There was sufficient factual foundation for expert's testimony and district court did not abuse discretion
in allowing accident reconstruction expert to testify concerning cause of accident, where expert carefully
examined accident scene, spoke with persons present at scene morning accident was discovered, and
investigated damage to vehicle involved in accident, and was familiar with handling and rollover
characteristics of vehicle based on review of highway accident statistics, and study of other accidents and
observation of rollover tests involving same type of vehicle.
2. Products Liability.
Jury could reasonably have found causation in claim against manufacturers and seller of vehicle based on
unwitnessed, one vehicle accident, independent of testimony of accident reconstruction expert, where there
was evidence that vehicle involved was highly susceptible to loss of control and rollover, that road being
traveled was flat, straight, and devoid of any tripping mechanism at location of accident, and that driver
was habitually careful, and there was no indication that driver was physically or mentally impaired at time
of accident.
3. Evidence; Trial.
Trial court is vested with discretion to simplify issues and limit number of expert witnesses allowed to
testify, and to exclude even relevant evidence if its probative value is substantially outweighed by danger
that it will confuse issues, mislead jury, or result in undue delay. NRCP 16; NRS 48.035.
4. Evidence; Trial.
Trial court did not abuse discretion by excluding all evidence concerning presence and use of seat belts in
trial arising out of one vehicle accident, which rendered driver paraplegic, against vehicle's manufacturers
and seller, where substantial expert testimony would have been required, increasing length of trial, and it
was not clear under circumstances of accident whether driver had used seat belt or whether driver's injuries
would have been avoided had seat belt been worn. NRCP 16; NRS 48.035.
NRS 48.095, which provides that evidence of subsequent remedial measures are not admissible to
prove negligence or culpable conduct, is inapplicable in strict liability action, where culpability in sense of
fault need not be established.
Evidence that manufacturers and seller of vehicles sent stickers to known owners, warning of lack of
occupant protection provided by vehicle's top and doors, as well a possibility of loss of control caused by
sharp turn and abrupt maneuvers, was admissible in products liability action against manufacturers and
seller arising from unwitnessed, one vehicle accident which rendered driver paraplegic, where action was
based on strict liability. NRS 48.095.
7. Negligence.
Comparative negligence was not applicable in products liability case based on strict liability.
8. Trial.
A party is entitled to instruction on every theory of case that is supported by evidence, but instructions
should not be given when such support is absent.
9. Trial.
District court properly refused to instruct jury that warnings need not be given against dangers which are
generally known, in products liability action against manufacturer and seller of vehicle involved in rollover,
though driver agreed that vehicle handled a little differently than ordinary passenger vehicle, where there
was no indication that driver was aware of vehicle's propensity to overturn or that consumers in general
were aware of the danger.
10. Trial.
As a general rule, jurors will not be permitted to impeach their own verdict.
11. Trial.
District court properly denied request that proceedings be stayed pending inquiry into post-verdict claim
of jurors that they were exhausted and upset by deliberations and did not agree with the verdict.
12. Damages.
In products liability context, malice in fact warranting punitive damages may be established by showing
that defendant consciously and deliberately disregarded known safety measures in reckless disregard of
possible results.
13. Damages.
Evidence was not sufficient to warrant instruction on punitive damages in products liability action against
manufacturers and seller of vehicle involved in rollover accident, though manufacturers conducted several
rollover tests on vehicle, where rollover causing injury apparently occurred during flat-surface, on-road
driving, and none of manufacturers' tests demonstrated vehicle's tendency to roll over under those
circumstances.
OPINION
By the Court, Berkson, D. J.:
1

In March, 1978, respondent Owen Patrick Murray (Murray) purchased a 1970 Jeep CJ-5
which had previously been sold by appellant Cal-Vada Auto. On August 19, 1978, Murray
drove the Jeep to visit a friend at her family's ranch, located some 60 miles from Wells,
Nevada. Murray left the ranch around midnight, traveling along North Ruby Valley Road. A
witness later testified that Murray's speed as he drove away was consistent with her own
prudent driving habits.
Early the next morning, about one-quarter mile from the point Murray was last seen, he
was found unconscious, lying about 25 feet from the edge of the road. About 75-80 feet from
the road lay the Jeep, upside down, with its ignition and tape deck still on.
____________________

1
The Governor designated The Honorable Lester H. Berkson, Judge of the Ninth Judicial District Court, to
sit in place of Justice John C. Mowbray, who voluntarily disqualified himself. Nev. Const., art. 6, 4.
the Jeep, upside down, with its ignition and tape deck still on. Evidence at the scene
suggested the vehicle had swerved from side to side before going off the road. There were
apparently no witnesses to the accident and Murray, who suffered a severe brain injury, has
no memory of what happened. As a result of the accident, Murray, then 21 years old and a
college forestry student, was rendered paraplegic.
Murray filed suit against Cal-Vada and the vehicle's manufacturers, appellants Jeep
Corporation and American Motors Corporation. He alleged that appellants were strictly liable
in tort for the manufacture and sale of a defective product and for misrepresentation
concerning the product. In substance, Murray contended that the design of the Jeep CJ-5
rendered it inherently uncontrollable and unstable. He claimed that appellants, despite their
knowledge of the vehicle's characteristics, failed to warn consumers about them and, indeed,
represented that the vehicle could be used safely in a variety of demanding driving conditions.
His complaint prayed for an award of compensatory and punitive damages.
After a four-week trial, a jury returned a verdict of $815,000 in Murray's favor. No
punitive damages were awarded because of the district court's refusal to give an instruction on
that claim. On appeal, appellants challenge a number of the district court's rulings. Murray
has cross-appealed, assigning error to the district court's refusal to instruct the jury on
punitive damages. For the reasons stated below, we affirm the judgment in its entirety.
THE APPEAL
I. The Causation Issue
[Headnote 1]
Appellants first contend that they were entitled to judgment as a matter of law because
Murray failed to establish that any defect in the vehicle caused the accident. They argue that
Murray's accident reconstruction expert, Dr. Michael Kaplan, lacked an adequate factual
foundation for his opinions and was therefore incompetent to testify concerning the cause of
the accident. Apart from Dr. Kaplan's testimony, appellants argue, there was insufficient
evidence of causation to satisfy Murray's burden of proof.
While we have held that an expert may not base an opinion on mere speculation or
conjecture, we are satisfied that the facts on which Dr. Kaplan relied were not of this
character. Dr. Kaplan carefully examined the accident scene and the physical evidence still
there. He spoke with persons present at the scene on the morning the accident was
discovered. These persons pointed out the location where Murray was found and the spot at
which the Jeep came to rest. They also described the tire marks left by the Jeep as it swerved
out of control.
Jeep as it swerved out of control. To assess the damage done to the vehicle, Kaplan examined
the appraiser's damage report and photographs taken of the vehicle after the accident. He also
spoke with a subsequent owner of the Jeep, who had repaired it. Finally, the record reflects
that Dr. Kaplan was familiar with the handling and rollover characteristics of the Jeep CJ-5,
based upon his review of highway accident statistics, his study of other Jeep accidents, and
his observation of numerous rollover tests involving the CJ-5.
On this basis, Kaplan concluded that Murray's Jeep began to roll while the vehicle was
traveling at a speed of 25-30 miles per hour, that the rollover occurred while the Jeep was still
on the road, and that the rollover was the result of the Jeep's defective design. While these
conclusions, and the investigation which produced them, have been strenuously attacked by
appellants, we believe the points raised affected only the weight and credibility of Kaplan's
testimony, not its admissibility. See Krehnke v. Farmers Union Co-op. Ass'n, 260 N.W.2d
601, 607-08 (Neb. 1977). On the record before us, we are not persuaded that the district court
abused its discretion in allowing Dr. Kaplan to testify.
[Headnote 2]
What we have said, of course, largely disposes of appellants' claim that there was
insufficient evidence of causation. Even apart from Dr. Kaplan's reconstruction testimony,
however, there was evidence upon which the jury could reasonably find causation. Murray
produced evidence that the Jeep CJ-5 is highly susceptible to loss of control and rollover. For
example, tests described by Dr. Kaplan indicate that the CJ-5 can overturn during an
avoidance maneuver, on a flat surface, at speeds as low as 28 miles per hour. Although
Murray's speed at the time he lost control is unknown, there was evidence that he was a
habitually careful driver who never exceeded the speed limit and had never been cited for a
moving traffic violation.
2
It appears that the road over which Murray was traveling was flat,
straight, and devoid of any tripping mechanism at the location of the accident. There is no
indication that Murray was physically or mentally impaired at the time the accident occurred.
Although appellants have suggested a number of alternative causes of the accident, Murray
was not required to negate them. Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 447, 686
P.2d 925, 927 (1984). The evidence he produced, though circumstantial, sufficiently
established causation. Id. at 452, 6S6 P.2d at 930.
____________________

2
While appellants now challenge the admissibility of evidence concerning Murray's driving habits, the record
reflects that appellants failed to register a timely objection to testimony on this point. Accordingly, appellants
will not be heard to raise the issue here. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52-53, 623 P.2d 981,
983-84 (1981).
evidence he produced, though circumstantial, sufficiently established causation. Id. at 452,
686 P.2d at 930. The credibility of that evidence was a matter for the jury. Id. In this case, as
in most cases, positive proof either way is not available. Inferences must be drawn from the
best available evidence produced by each side. Shoshone Coca-Cola v. Dolinski, 82 Nev.
439, 444, 420 P.2d 855, 858 (1966).
Appellants were not entitled to judgment as a matter of law; their motions for dismissal
and for judgment notwithstanding the verdict were thus properly denied. Stackiewicz, 100
Nev. at 447, 686 P.2d at 927 (application for judgment n.o.v. should be refused where there is
evidence tending to support the verdict); Roche v. Schartz, 82 Nev. 409, 412, 419 P.2d 779,
780 (1966) (where motion for dismissal pursuant to NRCP 41(b) is made, evidence must be
interpreted in light most favorable to plaintiff).
II. Seat Belt Evidence
Murray's Jeep was equipped with seat belts. Prior to trial, the district court entered an order
excluding all evidence concerning the presence and use of the belts. Appellants claim this
was error. We cannot agree.
At the outset, we have serious doubts about the relevance of the evidence. Appellants
argue, for example, that Murray's asserted failure to use his seat belt was relevant to show
comparative negligence. Pending a legislative declaration to the contrary, however, we have
refused to apply notions of comparative fault to the context of strict products liability. See
generally Young's Machine Co. v. Long, 100 Nev. 692, 692 P.2d 24 (1984).
Whether the evidence was relevant or not, we believe that the district court acted properly
in excluding it. Due to the circumstances of the accident, it was by no means clear whether
Murray had used his seat belt. The fact that Murray was ejected from the vehicle, of course,
indicated that he was not wearing the belt. On the other hand, Murray was prepared to present
evidence that he habitually used the seat belt, that the belt unlatched during the accident due
to the design of the latching mechanism, and that this itself was a defect in the vehicle. Also
in dispute was the question of whether Murray's injuries might have been avoided had the
seat belt been worn.
[Headnotes 3, 4]
As the district court concluded, injection of these issues into the case would have entailed
substantial expert testimony and a corresponding increase in the length of the trial. Given the
difficulties of proof, the district court undoubtedly concluded that litigating these questions
would have confused the jury and unduly emphasized a single, relatively insignificant
aspect of the accident.
unduly emphasized a single, relatively insignificant aspect of the accident. A trial court is
vested with discretion to simplify the issues and limit the number of expert witnesses allowed
to testify. NRCP 16.
3
The court is likewise authorized to exclude even relevant evidence if
its probative value is substantially outweighed by the danger that it will confuse the issues,
mislead the jury, or result in undue delay. Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev.
241, 243, 577 P.2d 1234, 1235 (1978); NRS 48.035.
4
We find no abuse of discretion in the
district court's action.
5

III. Evidence of Subsequent Warnings
Several years after Murray's accident occurred, appellants sent warning stickers to all
known owners of Jeep CJ-5 vehicles. These warned of the lack of occupant protection
provided by the CJ-5's top and doors, as well as the possibility of loss of control caused by
sharp turns and abrupt maneuvers. Appellants contend that the warnings should not have
been admitted into evidence.
In Ginnis v. Mapes Hotel Corp., 86 Nev. 408 470 P.2d 135 (1970), we held that
post-accident repair orders, though not admissible to show negligence, were admissible to
prove the existence of a defect or any other necessary element of a cause of action sounding
in strict liability. 86 Nev. at 416, 470 P.2d at 139-40. Appellants argue that our holding in
Ginnis has been vitiated by the subsequent enactment of NRS 48.095 and our recent decision
in Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984).
[Headnote 5]
NRS 48.095 provides in substance that evidence of subsequent remedial measures "is not
admissible to prove negligence or culpable conduct.
____________________

3
In pertinent part, NRCP 16 provides:
In any action, the court may in its discretion direct the attorneys for the parties to appear before it for
a conference to consider
(1) The simplification of the issues;
. . . .
(4) The limitation of the number of expert witnesses;
. . . .

4
NRS 48.035 provides, in relevant part:
1. Although relevant, evidence is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues or of misleading the jury.
2. Although relevant, evidence may be excluded if its probative value is substantially outweighed by
considerations of undue delay, waste of time or needless presentation of cumulative evidence.

5
Our conclusion on this point also answers appellants' contention that the district court erred in excluding
evidence of owner's manual warnings suggesting the use of seat belts.
remedial measures is not admissible to prove negligence or culpable conduct.
6
The
rationale underlying this statute, which is similar to others adopted in many jurisdictions, is
that tortfeasors will be deterred from taking remedial measures after an accident if they
believe that evidence of such measures may later be used against them.
We believe that NRS 48.095 has no application here. By its terms, the statute comes into
play only where negligence or other culpable conduct is alleged. See Schelbauer v. Butler
Mfg. Co., 673 P.2d 743, 747 (Cal. 1984); Ault v. International Harvester Company, 528 P.2d
1148, 1150-51 (Cal. 1975); Burke v. Almaden Vineyards, Inc., 150 Cal.Rptr. 419, 421 n. 2
(Cal.App. 1978) (construing statute similar to NRS 48.095). In a strict liability action, of
course, culpability in the sense of fault need not be established. See Ginnis, 86 Nev. at 413,
470 P.2d at 138; Shoshone Coca-Cola, 82 Nev. at 441, 420 P.2d at 857. Had the legislature,
in enacting NRS 48.095, intended culpable to denote simple legal responsibility, without
regard to fault, we think it would have expressed its intention in unequivocal terms.
Additionally, it seems to us that the policy considerations which underlie NRS 48.095 are
less compelling in the situation presented here than in the typical negligence case. Where the
plaintiff has been injured by a defect in a sidewalk, for example, it may be realistic to suppose
that the potential defendant will avoid making repairs, fearing that they might be construed as
an admission of fault. But this assumption is not valid where the defect is in a product
manufactured by the thousands. In such a case, it is manifestly unrealistic to suggest that
[the] producer will forego making improvements in its product, and risk innumerable
additional lawsuits and the attendant adverse effect upon its public image, simply because
evidence of . . . such improvement may be admitted in an action founded on strict liability for
recovery on an injury that preceded the improvement. Ault, 528 P.2d at 1152. Accordingly,
while decisions on the subject are by no means unanimous, we believe the better rule is to
allow admission of post-accident remedial measures in an action based upon strict liability.
See, e.g., Schelbauer, 673 P.2d at 746-48 (post-accident warning); Siruta v. Hesston Corp.,
659 P.2d 799, S09 {Kan.
____________________

6
NRS 48.095:
1. When, after an event, measures are taken which, if taken previously, would have made the event
less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or
culpable conduct in connection with the event.
2. This section does not require the exclusion of evidence of subsequent remedial measures when
offered for another purpose, such as proving ownership, control, feasibility of precautionary measures, or
impeachment.
809 (Kan. 1983) (design change); D.L. by Friederichs v. Heubner, 329 N.W.2d 890, 903-05
(Wis. 1983) (design change and warning); Caldwell v. Yamaha Motor Co., Ltd., 648 P.2d
519, 525 (Wyo. 1982) (design change); Caprara v. Chrysler Corp., 417 N.E.2d 545, 551
(N.Y. 1981) (design change); Robbins v. Farmers Union Grain Terminal Ass'n, 552 F.2d 788,
793 (8th Cir. 1977) (warning); Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 257 n. 7 (S.D.
1976) (design change); Ault, 528 P.2d 1148 (design change).
7

Nothing in our decision in Jacobson, supra, is to the contrary. There, the plaintiff's case
went to the jury on theories of strict liability and negligence. Application of NRS 48.095 was
therefore appropriate. It was unnecessary for us to decide whether the statute should also
apply to the strict liability claim, because we determined that the evidence in question was
admissible in any event under the feasibility exception of NRS 48.095(2). 100 Nev. at 231,
679 P.2d at 255.
[Headnote 6]
Accordingly, we conclude that the district court did not err in admitting evidence of the
post-accident warnings issued by appellants.
8

IV. Jury Instructions
Appellants attack, on several grounds, the jury instructions given by the district court. We
need not describe appellants' arguments in detail. It suffices to say that, having reviewed the
instructions as a whole, we are satisfied that the jury was sufficiently and fairly instructed.
See Gordon v. Hurtado, 96 Nev. 375, 380, 609 P.2d 327, 330 (1980); Hotels El Rancho v.
Pray, 64 Nev. 591, 628-29, 187 P.2d 568, 586 (1947).
[Headnote 7]
Appellants also challenge the district court's refusal to give their proposed instruction on
comparative negligence. For reasons we have previously stated, the district court acted
properly. See Young's Machine Co. v. Long, supra.
____________________

7
We note that products liability claims are frequently submitted to the jury on both strict liability and
negligence theories. In such a case, it may be appropriate for the trial court to instruct the jury that evidence of
remedial measures may not be considered by the jury in its determination of the negligence claim. See Robbins,
552 F.2d at 795. This is an issue, however, that we need not and do not resolve.

8
By our holding, we do not limit the authority of the court to exclude evidence of post-accident remedial
measures if it concluded that the probative value of such evidence is substantially outweighed by the danger of
unfair prejudice or confusion of the issues. See NRS 48.035.
[Headnotes 8, 9]
Finally, appellants contend that the district court erred in refusing to instruct the jury that
warnings need not be given against dangers which are generally known. While this is
certainly true as a general proposition of law, see General Electric Co. v. Bush, 88 Nev. 360,
365, 498 P.2d 366, 369 (1972), there was no evidentiary basis for the instruction here.
Although Murray agreed with defense counsel that the CJ-5 handled a little differently than
an ordinary passenger vehicle, there is no indication that he was aware of the Jeep's
propensity to overturn. Nor is there any evidence that consumers generally were aware of the
danger.
9
A party is entitled to an instruction on every theory of his case that is supported by
the evidence. Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271 (1983). Conversely,
where such evidence is absent, the instruction should not be given. Id. at 583-84, 668 P.2d at
271; Village Development Co. v. Filice, 90 Nev. 305, 312-13, 526 P.2d 83, 87 (1974). We
think this was the situation here.
V. Coercion of the Jury's Verdict
Shortly after the jury returned its verdict in this matter, several of the jurors contacted
appellants' trial counsel. They complained that they were exhausted and upset by the jury's
deliberations and that they did not agree with the verdict.
10
Counsel brought this to the
attention of the district court, requesting that further proceedings be stayed pending an inquiry
into the matter. The court denied this request, concluding that the jurors' complaints did not
justify a hearing.
[Headnotes 10, 11]
We believe the district court acted appropriately. As a general rule, jurors will not be
permitted to impeach their own verdict. Weaver Brothers, Ltd. v. Misskelley, 98 Nev. 232,
233, 645 P.2d 438, 439 (1982); Close v. Flanary, 77 Nev. 87, 113-14, 360 P.2d 259, 273
(1961); Priest v. Cafferata, 57 Nev. 153, 157, 60 P.2d 220, 221 {1936).
____________________

9
Dr. John Habberstad, a defense witness, opined that the handling characteristics of the CJ-5 would become
apparent very quickly to one driving the vehicle. When pressed, however, Dr. Habberstad qualified his
opinion:
By Mr. Neumann: Q. Now, do you think that the average user who does not have the experience,
training and knowledge of a person like yourself would realize on just driving the vehicle around, that it
overturns a lot more easily than a passenger car?
A. Sir, I can't say what the average person knows or doesn't know.

10
The jury was polled by the district court at the time the verdict was returned. Of the three jurors who later
complained, two affirmatively responded that this was their verdict; the reporter's transcript fails to reflect the
response of the third juror.
220, 221 (1936). Even if the allegations made here were true, they would not have warranted
a new trial. See Close, 77 Nev. at 113-14, 360 P.2d at 273.
THE CROSS-APPEAL
On cross-appeal, Murray challenges the district court's refusal to instruct the jury on the
issue of punitive damages.
11
He also contends that the district court erred in excluding
certain evidence allegedly relevant to this issue. We need not address the latter contention,
because we have determined that, even if the evidence had been admitted, it was not
sufficient to warrant an instruction of punitive damages.
[Headnote 12]
NRS 42.010 provides for an award of exemplary damages where the defendant [h]as been
guilty of oppression, fraud or malice, express or implied.
12
Oppression is present where
the plaintiff has been subjected to cruel and unjust hardship in conscious disregard of his
rights. Richardson v. Employers Liability Assurance Corp., 102 Cal.Rptr. 547, 556
(Cal.App. 1972), overruled on other grounds, Gruenberg v. Aetna Insurance Company, 510
P.2d 1032 (Cal. 1973). Malice means malice in fact. See Warmbrodt v. Blanchard, 100
Nev. 703, 709, 692 P.2d 1282, 1286 (1984); Bader v. Cerri, 96 Nev. 352, 359, 609 P.2d 314,
318 (1980); Caple v. Raynel Campers, Inc., 90 Nev. 341, 344, 526 P.2d 334, 336 (1974);
Village Development Co. v. Filice, 90 Nev. 305, 315, 526 P.2d 83, 89 (1974). In this context,
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 result.
See Leslie v. Jones Chemical Co., 92 Nev. 391, 393, 551 P.2d 234, 235 (1976).
[Headnote 13]
In arguing that such a showing was made here, Murray principally relies upon a series of
rollover tests conducted by Jeep Corporation and American Motors Corporation prior to the
date of the accident.
____________________

11
The issue of punitive damages affects only Jeep Corporation and American Motors Corporation; the
district court dismissed Murray's punitive damages claim against appellant Cal-Vada Auto. The propriety of that
dismissal is not challenged here.

12
In pertinent part, NRS 42.010 provides:
In an action for breach of an obligation not arising from contract, where the defendant . . . [h]as been
guilty of oppression, fraud or malice, express or implied . . . the plaintiff, in addition to the actual
damages, may recover damages for the sake of example and by way of punishing the defendant.
of the accident. Contrary to Murray's assertion, however, none of these tests demonstrated the
CJ-5's dangerous tendency to roll over in flat-surface, on-road driving. Cross-Appellant's
Opening Brief, at 11. One test, for example, required several men to lift the vehicle and roll it
down an incline. In another test, the vehicle was placed sideways on a sled, which was then
accelerated to a substantial speed. The unrestrained vehicle was thrown off when the sled was
abruptly stopped. Only in this sense, then, were these rollover tests.
Nothing else Murray points to in the evidence indicates that Jeep or American Motors
acted in conscious disregard of the rights of consumers or that they consciously and
deliberately disregarded known safety measures. Richardson, supra; Leslie, supra.
Accordingly, we conclude that the district court did not err in refusing to give a punitive
damages instruction. Warmbrodt, supra; Bader, supra; Beattie v. Thomas, supra.
CONCLUSION
We have carefully considered the remaining contentions of the parties and find them to be
without merit. The judgment of the district court is therefore affirmed.
____________
101 Nev. 651, 651 (1985) Patterson v. Four Rent, Inc.
HANK PATTERSON and MRS. HANK PATTERSON, Appellants, v. FOUR RENT, INC., a
California Corporation, dba DYER RANCH COMPANY, Respondent.
No. 15379
November 4, 1985 707 P.2d 1147
Appeal from partial summary judgment in an action for trespass. Fifth Judicial District
Court, Esmeralda County; William P. Beko, Judge.
Complaint was filed against Indian occupiers of land, stating causes of action in nuisance,
waste and trespass, and seeking injunction, declaratory relief and ejectment. The district court
entered summary judgment in favor of plaintiff, and Indians appealed. The Supreme Court
held that Nevada courts did not have subject matter jurisdiction to entertain action, since
complaint attempted to determine validity of claim to land by an Indian allotment.
Reversed.
Richard E. Olson, Jr., Nevada Indian-Rural Legal Services, for Appellants.
William Patterson Cashill, Reno, for Respondent.
Indians.
Nevada courts lacked subject matter jurisdiction over complaint against Indian occupiers of land stating
causes of action in nuisance, waste and trespass, and seeking injunction, declaratory relief and ejectment,
since complaint attempted to determine validity of application for an Indian allotment. Indian General
Allotment Act, 25 U.S.C.A. 334; 28 U.S.C.A. 345, 1353.
OPINION
Per Curiam:
In May 1982, respondent Four Rent, Inc. served upon appellants Mr. and Mrs. Hank
Patterson a thirty-day notice to quit occupancy of land in Fish Lake Valley in Esmeralda
County. Appellant Hank Patterson applied for an Indian allotment in September 1982.
1
In
the application, appellant stated that he is a Timbi-Sha Shoshone Indian, that he has resided
on the land since approximately 1915, and that he has improved the land with a house,
outbuildings, fencing and cultivation. However, in census documents, appellant had declared
that his place of residence in 1928 was Death Valley, California. The Bureau of Land
Management rejected the application for allotment on the ground that the land requested had
been transferred out of federal ownership and was not subject to allotment. The Interior Board
of Land Appeals, United States Department of the Interior, affirmed the rejectment of the
allotment. That decision has been appealed to the United States District Court.
Respondent filed a complaint against appellants in the Fifth Judicial District Court of
Nevada, stating causes of action in nuisance, waste and trespass, and seeking injunction,
declaratory relief and ejectment. Respondent claims the property was conveyed to it in fee
simple in December 1977 and that its title is supported by a chain of ownership from the
grantee of a United States patent under the Enlarged Homestead Act of February 19, 1909, ch.
160, 1-6, 35 Stat. 639 (repealed 1976). In their answer, appellants admitted occupancy of
the land, but raised as an affirmative defense that the Nevada court lacked subject matter
jurisdiction pursuant to Nevada Rules of Civil Procedure, rule 12{b){1).
____________________

1
The General Allotment Act of 1887, as amended, 25 U.S.C. 334, provided for the allotment of lands of
the United States not otherwise appropriated, to eligible Indians who made settlement on those lands. The
purpose of the Act was to end the tribal and nomadic life of the Indians. Hopkins v. United States, 414 F.2d 464,
467 (9th Cir. 1969).
jurisdiction pursuant to Nevada Rules of Civil Procedure, rule 12(b)(1).
Respondent moved for summary judgment on the issue of liability in the trespass action on
the ground the Interior Board of Land Appeals' rejection of appellants' application for an
allotment determined the land was not the property of the United States and therefore
appellants had failed to state a defense. The district court determined that respondent owned
the land in fee simple, enjoined appellants from trespassing on the land and retained
jurisdiction for trial on the issue of damages. This appeal followed.
Initially, we note 28 U.S.C. 1353 (1976) grants the federal courts original jurisdiction
over any civil action involving the right of any person, in whole or in part of Indian blood or
descent, to any allotment of land under any Act of Congress. . . .
2
See also McKay v.
Kalyton, 204 U.S. 458 (1907) (under the predecessor of 25 U.S.C. 345, federal court
jurisdiction over actions concerning Indian allotments was exclusive of state court
jurisdiction). State courts have accordingly removed to federal court cases which attempt to
determine the validity of claims to allotments on the ground of lack of subject matter
jurisdiction. State of Alaska, Dept. of Public Works v. Agli, 472 F.Supp. 70 (D. Alaska
1979); Heffle v. State, 633 P.2d 264 (Alaska 1981). The resolution of the dispute thus
revolves upon a determination of whether the actual issue before the district court was the
right to land as an Indian allotment.
Appellants contend that an essential element of the trespass cause of action is proof of
entitlement to the land and that resolution of this issue necessarily constitutes a determination
of whether appellants are entitled to the land as an Indian allotment. Appellants' case rests on
the assertion that because they occupied the land prior to its transfer from the public domain
to respondent's predecessor in interest, the land was removed from the public domain and was
not included within land granted by patent to respondent's predecessor in interest.
____________________

2
Additionally, Title 25 U.S.C. 345 provides:
All persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of
land under any law of Congress, or who claim to be so entitled to land under any allotment Act . . . or
who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which
they claim to be lawfully entitled by virtue of any Act of Congress, may commence and prosecute or
defend any action, suit, or proceeding in relation to their right thereto in the proper district court of the
United States; and said district courts are given jurisdiction to try and determine any action, suit, or
proceeding arising within their respective jurisdictions involving the right of any person, in whole or in
part of Indian blood or descent, to any allotment of land under any law. . . .
to respondent's predecessor in interest. Appellants point out that the district court's failure to
recognize that assertion led it to the erroneous conclusion that appellants could be ordered to
vacate the land and it would be sufficient to allow them to resume occupancy if they
ultimately obtained an allotment. We agree.
We first observe the district court purported actually to determine that respondent owned
the land in fee simple and thus resolve the claim to land as an Indian allotment. In McKay v.
Kalyton, supra, a suit to restrain Indians from interference with possession and use of land
allegedly acquired by allotment, the court stated that the right of possession there necessarily
involved the question of the existence of title. 204 U.S. at 469, In Agli, supra, the United
States District Court for the District of Alaska found that a complaint alleging ejectment,
quiet title and injunctive relief against an Indian claiming the property based on occupancy
under a federal allotment was an attempt to determine the validity of a claim to an allotment.
The court held the state court was without subject matter jurisdiction. 472 F.Supp. at 74.
Further, in Heffle, supra, the Supreme Court of Alaska has held that an action seeking to
enjoin interference with a right-of-way over allotted property required an adjudication of
ownership of land subject to a restriction against alienation imposed by the United States
such that the state court must dismiss for lack of subject matter jurisdiction. 633 P.2d at 269.
We concur with the reasoning of these cases. We conclude that the complaint in this
matter attempts to determine the validity of a claim to land by an Indian allotment and that the
courts of Nevada do not have subject matter jurisdiction to entertain such actions.
Accordingly, the judgment of the district court is reversed and the case remanded for the
district court to dismiss for lack of subject matter jurisdiction.
____________
101 Nev. 654, 654 (1985) Senteney v. Fire Ins. Exchange
PHILLIP S. SENTENEY, by His Guardian Ad Litem, THOMAS EDGAR SENTENEY,
et al., Appellant, v. FIRE INSURANCE EXCHANGE, a Reciprocal or Inter-Insurance
Exchange, Respondent.
No. 15860
November 5, 1985 707 P.2d 1149
Appeal from summary judgment in favor of respondent in an action seeking declaration as
to certain provisions of a homeowner's policy issued by respondent. Second Judicial District
Motorcycle passenger injured in accident filed complaint against owner of motorcycle and,
later, insurance company, seeking declaration that homeowner's policy applied to accident as
well as motorcycle policy. The district court granted summary judgment in favor of insurance
company, and injured passenger appealed. The Supreme Court held that the accident was not
covered by homeowner's insurance.
Affirmed.
Riley M. Beckett, Carson City, and J. P. Reynolds, Reno, for Appellant.
Hibbs, Roberts, Lemons and Grundy, and Robert L. Eisenberg, Reno, for Respondent.
1. Insurance.
An insurance policy is a contract, and contract provisions that are otherwise unambiguous should not be
rewritten, nor should legal obligations of parties be increased where parties intentionally limited such
obligations.
2. Insurance.
Insured's entrustment of motorcycle to son related to ownership of motorcycle and contractual right of
owner to permit others to use vehicle under protection of vehicle liability policy, and therefore, was
expressly excluded from coverage of homeowner's policy.
3. Insurance.
Poor condition of tires on motorcycle involved in accident related to maintenance of vehicle and was
therefore expressly excluded from coverage of homeowner's policy.
4. Insurance.
Modification of helmets worn by driver and passenger of motorcycle involved in accident stemmed from
or was related to ownership, maintenance, operation and use of motorcycle, and therefore, was specifically
excluded from coverage of homeowner's policy.
5. Insurance.
In order for circumstances to occur that would permit coverage by both a motor vehicle insurance policy
and a homeowner's insurance policy specifically excluding coverage for damage arising out of ownership,
maintenance, operation, or use of any motor vehicle owned or operated by insured, there would have to be
a non-vehicle related cause which is separate and distinct from the vehicle.
OPINION
Per Curiam:
Appellant was injured as a result of a single-vehicle accident which occurred on March 27,
1982, in Carson City, Nevada. Appellant was a passenger on a motorcycle driven by Jimmey
Gregory. The motorcycle was owned by Jimmey's father, Charles W. Gregory.
The helmets used with the motorcycle at the time of the accident had been modified by
Mr. Charles W. Gregory. Additionally, at the time of the accident, the front tire of the
motorcycle allegedly was under-inflated, while the rear tire allegedly was over-inflated. Both
tires allegedly were bald and had been in that condition for a considerable period of time.
Charles W. Gregory loaned the motorcycle to Jimmey a number of days before the accident.
At the time of the accident, Charles W. Gregory had an insurance policy specifically
covering the motorcycle involved in the accident. That policy had a liability limit of
$100,000. Charles W. Gregory also had a homeowner's policy that had been issued by
respondent. That policy also had a limit of $100,000. The homeowner's policy contained the
following exclusion: This insurance does not apply . . . to bodily injury or property damage
arising out of the ownership, maintenance, operation, use, loading or unloading of . . . any
motor vehicle owned or operated by, or rented or loaned to any insured.
Appellant filed a personal injury suit against Jimmey Gregory and Charles W. Gregory.
The motorcycle insurance carrier offered to settle the case, under the motorcycle insurance,
for the policy limit of $100,000. Appellant declined the offer, alleging that the homeowner's
policy also applied to the accident.
On February 7, 1983, respondent filed a complaint for declaratory relief against Charles
W. Gregory. Appellant was later made a party to the declaratory relief action and the case
proceeded without the active participation of Charles W. Gregory.
On November 22, 1983, respondent filed a motion for summary judgment in the
declaratory relief action. Respondent attempted to show that the homeowner's policy did not
apply because appellant's injuries arose out of the ownership, maintenance, operation and use
of a motor vehicle owned by Charles W. Gregory. Appellant, of course, opposed the motion.
The district court thereafter granted summary judgment to respondent.
[Headnote 1]
Appellant contends that the homeowner's policy should be interpreted so as to allow
coverage in this case. We disagree. An insurance policy is a contract. This Court should not
rewrite contract provisions that are otherwise unambiguous. See Parsons Drilling, Inc. v.
Polar Resources, 98 Nev. 374, 649 P.2d 1360 (1982). Nor should this Court attempt to
increase the legal obligations of the parties where the parties intentionally limited such
obligations. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981).
Appellant bases his argument for recovery on three grounds: negligent entrustment,
entrustment of an unsafe and dangerous instrumentality in the form of a motor vehicle, and
providing unsafe equipment in conjunction with negligent entrustment.
instrumentality in the form of a motor vehicle, and providing unsafe equipment in
conjunction with negligent entrustment. We find none of these theories persuasive. Appellant
suggests that his three stated causes of action are separate and unrelated to the ownership,
maintenance, operation or use of the motor vehicle. However, we conclude that in each
instance there is a sufficient nexus between the acts of Charles W. Gregory and the
ownership, maintenance, operation and use of the motorcycle to fall within the exclusion of
respondent's homeowner's policy.
[Headnote 2]
Appellant first contends that the homeowner's policy must apply because of the insured's
negligent entrustment of the motorcycle to his son. However, this act relates to the ownership
of the motorcycle and the contractual right of the owner to permit others to use the vehicle
under the protection of the vehicle liability policy. It is expressly excluded from coverage of
the homeowner's policy.
[Headnotes 3, 4]
Appellant's second theory suggests that poor condition of the tires contributed to the
accident. The condition of the motorcycle relates to the maintenance of the vehicle and is
therefore excluded from the coverage of the homeowner's policy. Appellant's third theory is
based on the proposition that the modified helmets seriously aggravated appellant's injuries.
The modification of the helmets also stemmed from or was related to the ownership,
maintenance, operation and use of the motorcycle. As such, it was also excluded from
coverage of the homeowner's policy.
[Headnote 5]
We recognize that circumstances could occur that would permit coverage by both policies.
However, in order for such double coverage to exist, there would have to be a
non-vehicle related cause. That cause must be separate and distinct from the vehicle.
Actions pertaining to the use or operation of the vehicle are not sufficient.
Due to the unambiguous language of respondent's homeowner's insurance policy which
excluded coverage from any injury arising out of the ownership, maintenance, operation or
use of the insured vehicle, we conclude that the district court was correct in finding no issues
of fact and in granting a summary judgment in favor of respondent. The judgment of the
district court is therefore affirmed.
____________
101 Nev. 658, 658 (1985) State v. District Court
THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT, in
and for the State of Nevada, County of Clark, THE HONORABLE DONALD M. MOSLEY,
DISTRICT JUDGE, Respondent.
No. 16259
November 5, 1985 708 P.2d 1022
Petition for writ of certiorari.
Motorcyclist found to be in violation of the mandatory helmet law pursuant to a nolo
contendere plea challenged constitutionality of the law. The district court held that the
mandatory helmet law was unconstitutional and granted defendant's motion to dismiss, and
the State petitioned for writ of certiorari. Certiorari was granted, and the Supreme Court held
that the mandatory helmet law does not violate the right to privacy or the right to equal
protection of the laws as guaranteed by the State and Federal Constitutions, and was within
the police power of the State.
Petition granted.
Robert J. Miller, District Attorney, Clark County; Brian McKay, Attorney General, Carson
City, for Petitioner.
J. R. Crockett, Las Vegas, for Respondent.
1. Automobiles; Constitutional Law.
Mandatory helmet law, NRS 486.231, did not violate the right to be let alone as guaranteed by
U.S.C.A.Const. Amend. 9, and Const. Art. 1, 20, since right to be left alone does not include right to do
as one wishes on an expressway.
In the area of social and economic legislation, constitutionality of a statute will be upheld against a
Fourteenth Amendment challenge if the law is reasonable, not arbitrary, and bears a rational relationship to
a legitimate state purpose. U.S.C.A.Const. Amend. 14.
If any state of facts may reasonably be conceived to justify it, a statutory discrimination will not be set
aside on equal protection grounds. U.S.C.A.Const. Amend. 14.
4. Automobiles; Constitutional Law.
State's interests in reducing severity of injuries to motorcyclists, protecting public from increased costs
due to motorcycle accidents, and promoting highway safety are legitimate state interests, and mandatory
helmet law, NRS 486.231, is rationally related to such interests, and thus, mandatory helmet law does
not violate equal protection clause of the State or Federal Constitutions. Const. Art. 1, 1; Art. 4,
21; U.S.C.A.Const. Amend. 14.
Authority of the state to provide for health, safety and welfare of the citizen is inherent in police
power of the state without any express statutory or constitutional provision.
citizen is inherent in police power of the state without any express statutory or constitutional provision.
Although police power cannot justify enactment of unreasonable, unjust or oppressive laws, it may
legitimately be exercised for purpose of preserving, conserving, and improving public health, safety,
morals and general welfare. U.S.C.A.Const. Amend. 14.
In exercising its police powers, the legislature may, where public interest demands, define and declare
public offenses, although effect is to restrict or regulate use and enjoyment of private property.
Public highways are public property, and thus there is no vested right in highways. U.S.C.A.Const.
Amend. 14.
Unrestrained use of highways is equivalent to appropriation of public property for private use, and the
legislature may prohibit use or prescribe terms upon which it may be exercised; this legislative power is
founded upon police power of the state. U.S.C.A.Const. Amend. 14.
10. Automobiles.
Mandatory helmet law, NRS 486.231, is within police power of the state because reducing severity of
injuries to motorcyclists has an impact beyond attempting to protect motorcyclists from themselves.
OPINION
Per Curiam:
This petition for a writ of certiorari challenges an order of the district court declaring
unconstitutional NRS 486.231, Nevada's mandatory helmet law. NRS 486.231 requires that
drivers and passengers of motorcycles wear protective headgear and goggles when operating a
motorcycle on a highway.
1
A criminal complaint was filed in Justice's Court against Real
Party in Interest Samuel Marber for violation of NRS 4S6.231 and Ord.
____________________

1
Protective headgear, glasses:
Standards; when use required.
1. The department of motor vehicles shall adopt standards for protective headgear and protective
glasses, goggles or face shields to be worn by the drivers and passengers of motorcycles and transparent
windscreens for motorcycles.
2. Except as provided in this section, when any motorcycle, except a trimobile or moped, is being
driven on a highway, the driver and passenger shall wear protective headgear securely fastened on the
head and protective glasses, goggles or face shields meeting those standards. Drivers and passengers of
trimobiles shall wear protective glasses, goggles or face shields which meet those standards.
3. When a motorcycle or a trimobile is equipped with a transparent windscreen meeting those
standards, the driver and passenger are not required to wear glasses, goggles or face shields.
4. When a motorcycle is being driven in a parade authorized by a
A criminal complaint was filed in Justice's Court against Real Party in Interest Samuel
Marber for violation of NRS 486.231 and Ord. 14.54.020 (willfully and unlawfully driving a
motorcycle on a public highway without wearing protective headgear). Marber entered a plea
of nolo contendere to the charge, with the reservation that he be allowed to challenge the
constitutionality of the mandatory helmet law on an appeal to the district court. The Justice's
Court accepted this conditional plea and found Marber guilty as charged. Marber appealed to
the district court and filed a motion to dismiss on the ground that the mandatory helmet law is
unconstitutional. Marber contended that NRS 486.231 violated his right to privacy, to equal
protection of the law, and to due process of the law. The district court granted the motion to
dismiss and held NRS 486.231 unconstitutional. The district court found that NRS 486.231
violated Marber's right to privacy, to equal protection, and constituted an enactment in excess
of the State's police powers. This petition followed.
The State of Nevada, has filed the present petition for a writ of certiorari contending that
NRS 448.231 is constitutional. We agree. Having considered the petition, we conclude that
the district court erred in its application of constitutional principles and declaration that NRS
448.231 is unconstitutional. For the reasons set forth below, we grant a writ of certiorari.
In considering the constitutionality of a duly enacted statute, we have held:
Initially, we reiterate the heavy burden appellants must bear to overcome the
presumption of constitutional validity which every legislative enactment enjoys.
We recently stated in List v. Whisler, 99 Nev. 133, 137-38, 660 P.2d 104, 106 (1983),
that:
Our analysis . . . begins with the presumption of constitutional validity which clothes
statutes enacted by the Legislature. Viale v. Foley, 76 Nev. 149, 152, 350 P.2d 721
(1960). All acts passed by the Legislature are presumed to be valid until the contrary is
clearly established. Hard v. Depaoli, et al., 56 Nev. 19, 26, 41 P.2d 1054 (1935). [. . .]
Further, the presumption of constitutional validity places upon those attacking a statute
the burden of making a clear showing that the statute is unconstitutional. [Citations
omitted.]
Moreover, when considering the validity of legislation which is under equal protection
and due process attack, the state enjoys a wide range of discretion to make reasonable
classifications for enacting laws over matters within its jurisdiction.
____________________
local authority, the driver passenger are not required to wear the protective devices provided for in this
section.
5. When a three-wheel motorcycle, on which the driver and passengers ride within an enclosed cab, is
being driven on a highway, the driver and passengers are not required to wear the protective devices
required by this section.
enjoys a wide range of discretion to make reasonable classifications for enacting laws
over matters within its jurisdiction. Graham v. Richardson, 403 U.S. 365, 371 (1971).
Allen v. State, 100 Nev. 130, 676 P.2d 792 (1984).
The constitutionality of mandatory helmet laws has been challenged in numerous state
courts. See, Love v. Bell, 465 P.2d 118 (Colo. 1970). The overwhelming majority uphold, as
we do now, the constitutionality of the law.
THE RIGHT TO PRIVACY
[Headnote 1]
Marber first suggests that NRS 486.231 violates his right to be let alone as guaranteed
by the Ninth Amendment of the United States Constitution and this State's equivalent, Article
1, Section 20 of the Nevada Constitution. Marber's primary authority for this proposition is
Griswold v. Connecticut, 381 U.S. 479 (1965). As the court in Bisenius v. Karns, 165
N.W.2d 377 (Wis. 1969) stated, this right to be left alone does not include the right to do
one's thing on an expressway. See Griswold, supra; Kelly v. Johnson, 425 U.S. 238 (1976);
Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972). The court in
Bisenius v. Karns, supra, said:
There is no place where any such right to be let alone would be less assertable than on a
modern highway with cars, trucks, busses and cycles whizzing by at sixty or seventy
miles an hour. When one ventures onto such a highway, he must be expected and
required to conform to public safety regulations and controls, including some that
would neither have been necessary nor reasonable in the era of horse-drawn vehicles.
NRS 486.231 does not violate Marber's right to privacy. The district court erred in so holding.
THE EQUAL PROTECTION OF THE LAWS
Marber next contends that NRS 486.231 violates his rights to equal protection of the laws
as guaranteed by the Fourteenth Amendment of the United States Constitution, and Article 1,
1 and Article IV, 21 of the Nevada Constitution. Marber argues that there is no rational
basis for the law. The district court found that there was an unreasonable classification and
that, therefore, the helmet law violated the equal protection clause of the Fourteenth
Amendment.
[Headnotes 2, 3]
The mandatory helmet law is not based on any invidious discrimination such as race,
alienage, or religion. Nor is a fundamental right involved.
fundamental right involved. In the area of social and economic legislation, the
constitutionality of the statute will be upheld against a Fourteenth Amendment challenge if
the law is reasonable, not arbitrary, and bears a rational relationship to a legitimate state
purpose. New Orleans v. Dukes, 427 U.S. 297 (1975); Village of Belle Terre v. Boraas, 416
U.S. 1 (1973). The Fourteenth Amendment of the United States Constitution permits the
States a wide scope of discretion in enacting laws which affect some groups of citizens
differently than others. McGowan v. Maryland, 366 U.S. 420 (1960). If any state of facts may
reasonably be conceived to justify it, a statutory discrimination will not be set aside. Id.
There are differences in the physical characteristics of automobiles and motorcycles.
Differences in the handling and operation of motorcycles require different skills and produce
different consequences should an accident occur. These factors justify the classification and
disparate treatment of motorcyclists.
[Headnote 4]
The State's interests in enacting mandatory helmet laws are to promote the health, safety
and general welfare of the public. Courts and commentators have articulated and advanced
several theories to explain these interests. See State of Hawaii v. Cotton, 516 P.2d 729
(Hawaii 1973). Evidence in the record indicates that without a mandatory helmet law medical
costs in Nevada would be increased by over one-half million dollars each year and that
two-thirds of these costs would be borne by the general public. Evidence also indicates that
mandatory helmet laws significantly reduce the number of motorcycle fatalities per year.
Even though this evidence may have been subject to legitimate question by those who
opposed passage of the Nevada law, our Legislature was entitled to act upon it. The State's
interest in reducing the severity of injuries to motorcyclists, the financial protection of the
public from increased costs due to motorcycle accidents and the promotion of highway safety
are legitimate state interests. The mandatory helmet law is rationally related to the State's
objectives.
NRS 486.231 does not violate Marber's right to the equal protection of the law. The
district court erred in so holding.
THE POLICE POWERS OF THE STATE
The district court held that NRS 486.231 violated the Due Process Clause of the
Fourteenth Amendment because the statute exceeds the scope of the State's police powers.
The basis of the court's holding is that the proper function of the legislature does not include
the duty of the government to protect an individual from himself.
[Headnotes 5-7]
The authority to provide for health, safety and welfare of the citizen is inherent in the
police power of the State without any express statutory or constitutional provision. Ex Parte
Boyce, 27 Nev. 299, 75 P. 1 (1904). Although the police power cannot justify the enactment
of unreasonable, unjust or oppressive laws, it may legitimately be exercised for the purpose of
preserving, conserving and improving public health, safety, morals and general welfare.
Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803 (1914). In exercising its police powers,
the legislature may, where public interest demands, define and declare public offenses,
although the effect is to restrict or regulate the use and enjoyment of private property. State v.
Park, 42 Nev. 386, 178 P. 389 (1919).
[Headnotes 8-9]
While Checker, Inc. v. Public Serv. Comm'n, 84 Nev. 623, 446 P.2d 981 (1968), dealt
with the legislature's authority to regulate taxicabs, the same general principles are equally
applicable in the instant case. Public highways are public property. There is no vested right in
highways. Id. Unrestrained use of highways is equivalent to appropriation of public property
for private use, and the legislature may prohibit the use or prescribe the terms upon which it
may be exercised. This legislative power is founded upon the police power of the state. Id.
[Headnote 10]
A mandatory helmet law is within the police power of the state because reducing the
severity of injuries to motorcyclists has an impact beyond attempting to protect the
motorcyclist from himself. Requiring motorcyclists to wear protective headgear while using
the public highways is permissible since it is rationally related to a legitimate state purpose.
The mandatory helmet law does not violate any of Marber's constitutional rights. The district
court erred in declaring NRS 486.231 unconstitutional.
We have reviewed Marber's remaining contentions and conclude that they are without
merit. Accordingly, we grant the petition for a writ of certiorari, and declare that NRS
486.231 is constitutional. The district court's order and judgment is vacated. The case is
remanded to the district court with instructions to reinstate the judgment of conviction
pursuant to Marber's plea of nolo contendere.
____________
101 Nev. 664, 664 (1985) 25 Corporation, Inc. v. Eisenman Chemical
THE 25 CORPORATION, INC., a Kansas Corporation, and NL INDUSTRIES, INC., a
Corporation, Appellants, v. EISENMAN CHEMICAL COMPANY, a Colorado Corporation,
Respondent.
No. 15982
November 5, 1985 709 P.2d 164
Appeal from an order and judgment denying defendant's motion for summary judgment
and granting plaintiff's cross-motion for summary judgment; Fourth Judicial District Court,
Elko County; Joseph O. McDaniel, Judge.
Owner of mineral rights under void claim brought action in the district court against
landowner and lessee to be declared 75 percent owner of mineral rights to void claim based
on estoppel, reformation, and adverse possession. The court granted summary judgment in
favor of owner of mineral rights under void claim. Landowner and lessee appealed. The
Supreme Court held that: (1) trial court erred in granting summary judgment on issue of
estoppel; (2) trial court erred in reforming deeds between landowner and previous owner to
reflect alleged oral agreement by previous owner; (3) landowner and lessee failed to show
there were no material issues of fact on issue of adverse possession; and (4) lessee was not
bona fide purchaser.
Reversed in part; affirmed in part.
Wilson and Barrows, Elko, and Davis, Graham & Stubbs, Denver, Colorado, for Appellant
25 Corporation.
Hill, Cassas, de Lipkau and Erwin, Reno; Dorsey and Whitney, New York, New York, for
Appellant NL Industries, Inc.
Hoy and Miller, Elko; VanCott, Bagley, Cornwall and McCarthy, Salt Lake City, Utah, for
Respondent Eisenman Chemical Company.
1. Judgment.
Trial court erred in granting summary judgment on issue of estoppel in favor of owner of mineral rights
under void claim found to be on fee land acquired in state selection land sale against landowner, where
there was evidence that owner of mineral rights under void claim had knowledge of invalidity of claim but
still continued to conduct mining operations.
2. Reformation of Instruments.
Remedy of reformation is available against party to a written contract to correct mistakes of fact made in
drafting of the agreement so as to reflect intentions of parties.
Trial court erred in reforming deeds between landowner and previous owner to reflect alleged oral
agreement by previous owner to give one-half interest in mineral rights to discoverer of
minerals, where discoverer was not party to suit and terms of his agreement were not
clearly established.
one-half interest in mineral rights to discoverer of minerals, where discoverer was not party to suit and
terms of his agreement were not clearly established.
4. Property.
A document between two parties which recognizes a third party's interest, does not, by itself, create that
interest in the third party.
5. Mines and Minerals.
A location certificate is a unilateral document which is recorded to place notice on public records that
locators have appropriated federally owned minerals on public domain to their own use, and does not
create an interest in those minerals.
Deeds containing mineral rights executed between current landowner and the previous owner were not
subject to reformation to reflect an alleged oral agreement made by previous owner to give one-half interest
in mineral rights on void claim to discoverer of minerals, since this was an attempt to create a new interest
and not a correction of errors made in expressing contractual terms.
7. Judgment.
Landowner was not entitled to summary judgment to dismiss claim of estoppel brought by owner of
mineral rights under void claim, even though owner of mineral rights under void claim had received title
opinion indicating claim was void, where district court found title opinion was one attorney's opinion and
held mineral owner did not know of invalidity of claim.
8. Estoppel.
Ignorance of the true facts on the part of party asserting estoppel is a necessary element of estoppel.
There can be no adverse possession if that possession is with permission of owner of property.
10. Mines and Minerals.
Quitclaim deed granting interest in invalid mining claim could be relied upon as being a conveyance
giving grantee color of title under adverse possession statute since grantee in fact founded possession on
that instrument. NRS 11.110.
11. Judgment.
Landowner failed to show there were no material issues of fact on issue of adverse possession by owner
of mineral rights under void claim, even though landowner leased whatever potion it had authority to lease
and landowner had authority to lease 100 percent of property, where both owner of mineral rights under
void claim and landowner believed, at least for some time, that owner under void claim owned 75 percent
interest in the minerals.
12. Vendor and Purchaser.
Bona fide doctrine protects subsequent purchaser's title against competing legal or equitable claims of
which purchaser had no notice at time of conveyance.
13. Vendor and Purchaser.
Lessee of lands for mining was not bona fide purchaser, where lessee was aware that interests of owner of
claim may have been void, that claim was within leased lands and that extensive mining was being
conducted by owner of void claim.
OPINION
Per Curiam:
The 25 Corporation and NL Industries appeal from a summary judgment granted to
Eisenman Chemical Company (ECCO), in which ECCO was declared to be a 75 percent
owner in certain mineral rights. The judgment was granted on equitable theories of estoppel
and reformation. This summary judgment is reversed.
25 Corporation and NL Industries also appeal from the trial court's denial of their motions
for summary judgment. The court's denial of these motions is affirmed except for its denial of
summary judgment and dismissal of ECCO's fourth cause of action claiming reformation. We
hold that ECCO's action for reformation cannot lie, as a matter of law, and order the district
court to grant summary judgment dismissing this cause of action.
I. FACTS
The factual background in this case is quite complex, and we set it out in some detail. In
the 1940's the Marvel family, through a corporation, W. T. Jenkins Company, owned the 25
Ranch, located in portions of Elko, Lander, and Humboldt counties, Nevada. The 25 Ranch
included approximately 125,000 acres of fee land (acquired in a state selection land sale) and
approximately 300,000 acres of public domain on which cattle was grazed.
The Marvels employed Melvin Jones as a ranchhand, and the two parties had an agreement
that if Jones located any barite while working on the ranch property, Jones would be entitled
to an undivided fifty percent interest in whatever he discovered. On April 10, 1955, Jones and
the Marvels located a claim of barite mineral (Lakes Claim No. 1). On June 24, 1955, a
location certificate was recorded for Lakes Claim No. 1, naming Jones and the Marvels as
co-locators.
On July 23, 1964, appellant 25 Corporation
1
purchased the 25 Ranch, including all
mineral interests, from the Marvels. The deed from the Marvels describes all of the land
being conveyed, and after 27 pages of legal descriptions, the following language appears:
Together with all oil, gas and minerals and rights thereto and all royalties in connection
therewith now held, owned or claimed by the W.T. JENKINS COMPANY, or in, on or
under the above described lands or any portions thereof . . .; and all interest of the W.T.
JENKINS COMPANY in those unpatented lode mining claims located in Elko County,
Nevada, known as Lakes #1. . . .
____________________

1
No distinction is made between 25 Corporation and its predecessors in interest.
As part of the same transaction 25 Corporation granted back to the Marvels an undivided
fifty percent (50%) of any and all mineral, oil, and gas rights in the 25 Ranch. 25 Corporation
retained the exclusive right to lease the mineral rights on the property. This mineral deed
from the 25 Corporation to the Marvels included a reference to an unpatented lode mining
claim located in Elko County, Nevada known as Lakes No. 1 . . . in which MELVIN R.
JONES owns an undivided one-half interest. As a result of these transfers 25 Corporation
owned all of the land in the 25 Ranch, and the Marvels owned a 50 percent interest in all of
the minerals. As to the distribution of ownership of the Lakes No. 1 claim, 25 Corporation
owned 25 percent, the Marvels owned 25 percent, and Jones owned 50 percent of the claim.
(See diagram below.)
In 1973, respondent ECCO leased from Jones his 50 percent interest in the Lakes No. 1
claim. On January 9, 1974, ECCO exercised an option to purchase that interest and
purchased, by quitclaim deed, all of Jones's right, title and interest in Lakes No. 1. On
January 11, 1974, ECCO purchased, by quitclaim deed whatever right, title interest and
estate the Marvels had in Lakes No. 1.
2
From these transfers, ECCO believed it had a 75
percent interest in Lakes No. 1. Here is a diagram of the supposed interests:
(Owners and Percentages)
25 Corporations (100%) 25 Ranch
Marvel (50%)
25 Corp (50%)
Right to Lease
Mineral Rights
in 25 Ranch
Jones (50%)
Marvel
(25%)
25 Corp
(25%)
Lakes #1 Claim
ECCO
(1973 Lease)
(1974 Purchase)
ECCO
(1974
Purchase)
(Claimed Ownership of Lakes #1
ECCO (75%) 25 Corp (25%)
ECCO
(1975 Lease)
____________________

2
25 Corporation was informed of the acquisition by letter on February 7, 1975.
In 1975, by letter agreement, the 25 Corporation leased its 25 percent interest in Lakes No.
1 to ECCO for one year. ECCO paid 25 Corporation a royalty based on a 25 percent interest
in the claim. Although the 1975 letter agreement had a stated one-year term, ECCO continued
to make payments to 25 Corporation after the one-year term.
In 1977, ECCO sought a loan from ITT Financial and offered its purported 75 percent
interest in the Lakes No. 1 claim as collateral. ITT's Nevada lawyer, Earl Hill, rendered a title
opinion to ITT regarding the Lakes No. 1 claim, and ITT sent a copy of this opinion to
ECCO. It was at this time that ECCO was informed that the Lakes No. 1 claim had been
located on fee land and was not a valid claim.
3
The title opinion contained the following
conclusions:
Lakes #1 Lode Claim is and was void from its inception, and cannot be the legal basis
for any mineral rights in the locators or their successors in interest.
. . . .
Legal title to [the Lakes #1 Claim], including all mineral rights is now vested in the 25
Corporation, Inc., subject to a 20 year mineral interest of 50% in favor of [the Marvels].
. . . .
Consequently, Lakes #1 Lode Claim did not create any mineral rights in its locators
[Jones and the Marvels] and the locators had no mineral rights to convey.
After receipt of this 1977 Title Opinion, ECCO stopped filing affidavits of annual
assessment work which are necessary to retain unpatented mining claims. Apparently, this
decision to stop filing proofs of labor was made because of the newly acquired information
that the Lakes No. 1 claim was not on federal claim land. ECCO never disclosed to 25
Corporation that the Lakes No. 1 claim was void and that 25 Corporation owned legal title to
all mineral rights in the claim area subject only to the Marvels' 50 percent claim. Instead,
ECCO continued to pay 25 Corporation a royalty based on a 25 percent interest. 25
Corporation still believed it owned only a 25 percent interest in the Lakes No. 1 claim.
However, because the claim was on fee land, it was void ab initio, and the minerals
covered by the claim were simply part of all the fee lands on the 25 Ranch, which the 25
Corporation owned in full, subject only to Marvel's 50 percent interest.
In August, 1979, ECCO was acquired by Newpark Resources, Inc. (Newpark), a New
York stock exchange company. In the fall of 19S0 Newpark was preparing to make a public
offering of its securities and because of that, sought a title opinion from John C. Miller,
Esq., as to the Lakes No.
____________________

3
Any claims located upon state selection lands were void ab initio. See discussion, State v. Ellison
Ranching Co., 93 Nev. 575, 571 P.2d 394 (1977).
of 1980 Newpark was preparing to make a public offering of its securities and because of
that, sought a title opinion from John C. Miller, Esq., as to the Lakes No. 1 claim. On
September 18, 1980, Newpark and ECCO received that opinion, which states in part: [T]he
Lakes #1 unpatented mining claim has been void ab initio as being located on lands
unavailable for location.
The opinion letter also advised ECCO to negotiate a new arrangement with 25 Corporation
since the previous lease had terminated in 1976. ECCO contacted 25 Corporation on
September 22, 1980, (just days after receiving the above-referenced title opinion) and
proposed to enter into a new lease for property including the Lakes No. 1 claim area,
continuing to offer 25 Corporation a royalty based on a 25 percent interest and not informing
25 Corporation of the two title opinions.
In October, 1980, soon after ECCO had proposed its lease, appellant NL Industries
approached 25 Corporation and proposed to lease lands for barite mining, including the claim
area.
4
NL Industries informed 25 Corporation that it had done a title search of the Lakes
claim and had discovered that the Lakes claim was void, and that 25 Corporation actually
owned all of the mineral interests in the claim area, subject only to the Marvels' 50 percent
interest. This was the first time 25 Corporation suspected or had reason to believe the Lakes
claim was void.
On October 9, 1980, 25 Corporation executed a lease to NL Industries of lands including
the claim area for barite mining. 25 Corporation notified ECCO of the NL Industries mining
lease and demanded that ECCO vacate 25 Corporation's property. ECCO filed this action a
few days later seeking a declaration of its purported 75 percent interest in the Lakes No. 1
claim.
5

In 1981, the district court held that the Lakes claim was void ab initio, which in effect
dismissed ECCO's first and second causes of action. In August, 1981, ECCO moved for
immediate occupancy of a portion of the Lakes property beyond the claim, seeking to extract
190,000 tons of barite on the outside of the claim. The motion was granted by district court
but was vacated by this court on June 3, 1982. NL Industries, Inc., v. Eisenman Chemical
Co., 98 Nev. 253, 645 P.2d 976 (1982).
Following extensive discovery, 25 Corporation and NL Industries filed a motion for
summary judgment to dismiss ECCO's "equitable" claims based on estoppel, reformation,
and adverse possession.
____________________

4
In 1979, 25 Corporation had entered into a prospecting agreement with NL Industries, which authorized NL
Industries to prospect for barite on the entire 25 RANCH, and obligated 25 Corporation to negotiate in good
faith to lease deposits that NL Industries found.

5
The Marvels were originally defendants in the case. In 1982, however, they entered into a purchase
agreement with ECCO for sale of certain interests, settled the lawsuit with ECCO, and became additional
plaintiffs in the case.
tries filed a motion for summary judgment to dismiss ECCO's equitable claims based on
estoppel, reformation, and adverse possession. ECCO filed a cross-motion seeking summary
judgment in its favor as to these same claims, and also seeking summary judgment dismissing
25 Corporation's counterclaim for quiet title. The district court granted the summary
judgment in favor of ECCO, finding ECCO owned an equitable 75 percent interest in the
Lakes No. 1 claim. This appeal followed.
II. THE ECCO SUMMARY JUDGMENT
A. ESTOPPEL
The trial court in granting summary judgment relied on two equitable doctrines, estoppel
and reformation. With regard to estoppel the trial court stated:
Justice and equity require the court to estop 25 Corp. and NL Industries from asserting
that the Lakes Claim is or was void as to the barite mined within the vertical boundaries
of the claim, except as to 25 Corp.'s 25% interest.
On the estoppel issue the court relied on Noble Gold Mines Co. v. Olsen, 57 Nev. 448, 66
P.2d 1005 (1937). Noble is similar to this case in that the defendants had located a mining
claim believed to be on federal land but which turned out to be on plaintiff's private land. The
evidence in Noble showed that the property owner suspected that mining work was being
performed by others on his property. He took no action to determine if the work was being
done on his property and simply allowed it to continue. The lower court determined that the
owner was estopped from asserting title against those making the improvement. The court in
its opinion noted:
In considering each individual case, the courts should keep in mind the purpose of . . .
equitable estoppel, which is to prevent a party from asserting his legal rights when he
has so conducted himself that it would be contrary to equity and good conscience for
him to allege and prove such rights.
57 Nev. at 462, 66 P.2d at 1010.
It certainly does not appear here, as a matter of law, that either 25 Corporation or NL
Industries were guilty of such conduct as to make it contrary to equity and good conscience
for them to claim a right in the mining property in question.
In the opinion of the trial court it appears that information was available as early as 1972
which would have shown all parties that the claim was on fee land. It also appears that a
survey report was done in 1972, paid for jointly by 25 Corporation, the Marvels and Jones.
There is also evidence which would support a finding that 25 Corporation was never made
aware of this survey and that none of the parties was aware of the full legal implications
of the survey.
finding that 25 Corporation was never made aware of this survey and that none of the parties
was aware of the full legal implications of the survey. The significance of the 1972 report,
then, is questionable.
In Cheqer, Inc. v. Painters and Decorators, 98 Nev. 609, 655 P.2d 996 (1982), this court
held that equitable estoppel consists of four elements:
1. The party to be estopped must be apprised of the true facts;
2. He must intend that his conduct shall be acted upon, or must so act that the party
asserting estoppel has the right to believe it was so intended;
3. The party asserting the estoppel must be ignorant of the true state of facts;
4. [The party asserting estoppel] must have relied to his detriment on the conduct of
the party to be estopped.
98 Nev. at 614, 655 P.2d at 998-99 (citations omitted).
6

It is not too difficult to find factual issues relative to these elements. For example, on the
issue of reliance there is evidence in the record that ECCO had knowledge of the invalidity of
the claim but still continued to conduct mining operations.
[Headnote 1]
There are material issues of fact to be determined before the equitable remedy of estoppel
can be invoked in this case; therefore, summary judgment in favor of ECCO on this ground
must be reversed.
B. REFORMATION
The summary judgment ordered reformation of the 1964 grant deed from the Marvels (W.
T. Jenkins Co.) to 25 Corporation relating to the 25 Ranch. The court reformed the deed by
adding a paragraph which recognized an undivided one-half interest to Melvin R. Jones in
the mineral rights in a parcel of land located as the Lakes Claim. . . . The court similarly
reformed the 1964 mineral deed from 25 Corporation to the Marvels. This allegedly gave
Jones an interest in the mineral rights instead of an interest in the claim. Without such a
reformation, Jones would have no recognizable interest in any part of the 25 Ranch since his
only recognizable interest is in a void claim.
The core of the court's decision rests on reformation of a supposed agreement between the
Marvels and their ranchhand, Jones, who is not party to these proceedings.
____________________

6
ECCO argues that Noble Gold creates a special standard for equitable estoppel in mining cases. While
Noble Gold may have set a special standard for knowledge on the part of a landowner, the other essential
elements were not abandoned. Noble Gold, 57 Nev. at 466-67, 66 P.2d at 1012.
Jones, who is not party to these proceedings. Some kind of unilateral contract might have
existed between Marvels and Jones, but it is far from clear and beyond dispute. The substance
of the understanding may well have been, as ECCO suggests, that Jones was entitled to
one-half of the minerals which he discovered on the Marvels' land, but the existence of such
an agreement does not appear as an undisputed fact in this record. While ECCO claims the
existence of such an agreement, 25 Corporation asserts that Jones was given only an interest
in a mining claim and not a general interest in all the minerals on the ranch which he might
have discovered. If 25 Corporation is able to establish its position before a fact-finder, then
the fact-finder would have to find that Jones has nothing to transfer since his interest is in a
void claim.
[Headnote 2]
The remedy of reformation is available against a party to a written contract to correct
mistakes of fact made in the drafting of the agreement so as to reflect the intentions of the
parties. Reformation is available as an equitable remedy to a party seeking to alter a written
instrument which, because of a mutual mistake of fact, fails to conform to the parties'
previous understanding or agreement. Helms Constr. v. State ex rel. Dep't Hwys., 97 Nev.
500, 503, 634 P.2d 1224, 1225 (1981).
The first problem with the reformation in this case is that there is a dispute as to the
intention of the original parties. When the Marvels were defendants, they denied that Jones
was given any ownership interest in mineral rights. In their counterclaim, the Marvels alleged
that the location certificate was ineffectual to create or vest any mineral rights in its
purported locators [Jones and Marvel]. Apparently, once the Marvels became plaintiffs,
however, ECCO argued that there was an oral agreement between Jones and Marvel which
gave Jones an interest in mineral rights.
[Headnote 3]
In Holman v. Vierira, 53 Nev. 337, 340, 300 P. 946, 947 (1931), this court ruled that a
court will administer this high equitable remedy only in a clear case. To obtain reformation:
the precise terms of the oral agreement must be made equally clear. If the terms of the
previous agreement claimed are not definitely established by the evidence, a court of
equity will refuse to decree a reformation of the written instrument.
53 Nev. at 340-41, 300 P. at 947 (emphasis added). ECCO has failed to show that the terms
of the previous agreement are definitely and clearly established by the evidence. For that
reason, it is asserted that the court erred in reforming the deeds.
[Headnote 4]
A further problem exists with regard to the court's reformation in that it appears the court
did not succeed in accomplishing its goals. The court discussed the intentions of the Marvels
and Jones, yet reformed the instruments between the Marvels and 25 Corporation. The court
reformed the deeds by adding a paragraph which recognizes Jones's interest in the barite
claim. A document between two parties which recognizes a third party's interest, does not, by
itself, create that interest in the third party.
[Headnote 5]
ECCO, however, claims that the location certificate, when read in conjunction with the
reformed deeds creates an interest in Jones (which was then transferred to ECCO). A location
certificate is a unilateral document which is recorded to place notice on the public records
that the locators have appropriated federally owned minerals on the public domain to their
own use. American Law of Mining, 5.72-5.80 (1980). A location certificate does not create
an interest in those mineralsespecially when it turns out the claim is invalid.
[Headnote 6]
Thus, the property dispute before the court is not subject to resolution by reformation.
Reformation should be used to correct errors in expressing the terms of a contract and should
not be used to create new ones. Dobbs, Remedies 11.6 (1973). Consequently, the ECCO
summary judgment must be reversed insofar as it relies on this doctrine. For the same reason,
the fourth cause of action in the counterclaim of 25 Corporation and NL Industries, resting as
it does on a theory of reformation, must be dismissed. The trial court's refusal to grant
summary judgment dismissing ECCO's fourth cause of action was error.
III. SUMMARY JUDGMENT CLAIMS BY 25 CORPORATION
AND NL INDUSTRIES
A. ESTOPPEL
[Headnotes 7, 8]
25 Corporation and NL Industries assert that even viewing the facts in favor of ECCO,
ECCO could never prevail on its estoppel claim, and they therefore claim that summary
judgment should be granted in favor of 25 Corporation and NL Industries. As stated above,
however, certain facts exist which need to be resolved before judgment can be entered in
either parties' favor. For instance, ECCO's ignorance of the true facts is a necessary element
of estoppel. Cheqer, 98 Nev. at 614, 655 P.2d at 998-99. 25 Corporation argues that ECCO
knew the Lakes claim was void when it received the 1977 title opinion. The district court,
however, found that this was one attorney's opinion and held that ECCO did not know of
the invalidity of the claim.
ever, found that this was one attorney's opinion and held that ECCO did not know of the
invalidity of the claim. The facts are susceptible to different interpretations and should be
resolved in trial. Therefore, we hold that 25 Corporation and NL Industries are not entitled to
summary judgment and the case is remanded for trial.
B. ADVERSE POSSESSION
25 Corporation and NL Industries assert that the court erred in refusing to grant summary
judgment in their favor on the issue of adverse possession.
In order to obtain title by adverse possession, ECCO's possession of the property must be
hostile in its inception; actual, peaceable, open, notorious and uninterrupted for the statutory
period. Brooks v. Jensen, 87 Nev. 174, 178, 483 P.2d 650, 653 (1971). Additionally, the
statute under which ECCO claims adverse possession requires that ECCO entered into the
possession of premises, under claim of title, exclusive of any other right, founding such claim
upon a written instrument as being a conveyance of the premises in question. . . . NRS
11.110.
[Headnote 9]
25 Corporation argues that the undisputed facts in this case fail to satisfy these
requirements. The facts, however, are not undisputed. 25 Corporation argues that ECCO's
possession was permissive rather than hostile because of the existence of a letter agreement
which purported to lease 25 Corporation's 25 percent interest in the claim to ECCO. 25
Corporation asserts that since the letter agreement leased whatever portion of the Lakes
Property the 25 CORPORATION has authority to lease, and since 25 Corporation had
authority to lease 100 percent of the property, ECCO had permissive rather than hostile
possession. There can be no adverse possession if that possession is with the permission of
the owner of the property. 3 Am.Jur.2d Adverse Possession 36 (1962); Howard v. Wright,
38 Nev. 25, 143 P. 1184 (1941). There is a question here, however, as to permission. Both
ECCO and 25 Corporation believed, at least for some time, that ECCO owned a 75 percent
interest in the claim. ECCO would not at that time be using the land with permission.
[Headnote 10]
25 Corporation also claims that ECCO does not have color of title to the property. NRS
11.110 requires that possession be founded upon a written instrument as being a conveyance
of the premises in question. In this case, ECCO's possession of the property was founded
upon the 1974 quitclaim deeds from Jones and the Marvels. 25 Corporation argues that since
those deeds granted interests in an invalid mining claim, ECCO has received no "color of
title."
no color of title. This argument is not supported by any authority. These deeds may in fact
be relied upon as being a conveyance under the statute since ECCO in fact founded
possession of the claim on those instruments.
[Headnote 11]
25 Corporation and NL Industries have failed to show that there are no material issues of
fact on the issue of adverse possession. More importantly, they have failed to show that they
are entitled to judgment as a matter of law. Therefore, the district court did not err in refusing
to grant summary judgment on the issue in their favor.
C. BONA FIDE PURCHASER
NL Industries argues that the court erred in finding that NL is not a purchaser in good
faith. The court found that NL's interest in the Lakes No. 1 claim is the same interest of 25
Corporation. NL asserts, however, that it is a bona fide purchaser, protected against the
competing claims of ECCO.
[Headnotes 12, 13]
The bona fide doctrine protects a subsequent purchaser's title against competing legal or
equitable claims of which the purchaser had no notice at the time of the conveyance. 77
Am.Jur.2d Vendor and Purchaser 633 at 754 (1975); Berge v. Fredericks, 95 Nev. 183, 591
P.2d 246 (1979). NL Industries, however, was aware that the Lakes Claim was void and that
ECCO's supposed interests may have been void. NL was also aware of the extensive mining
being conducted by ECCO. NL cannot now claim that it had no notice of a possible legal or
equitable claim on behalf of ECCO. Therefore, the court did not err in holding that NL was
not a bona fide purchaser.
CONCLUSION
Questions of material fact exist on the claim of estoppel, and therefore summary judgment
on that claim is reversed. The property dispute before the court is not subject to resolution by
reformation, and therefore summary judgment in favor of ECCO on its reformation claims is
reversed. Instead, the district court is ordered to grant summary judgment in favor of 25
Corporation and NL Industries and dismiss the claim for reformation. Finally, the district
court did not err in refusing to grant summary judgment on the adverse possession claim or in
finding that NL Industries was not a bona fide purchaser. Accordingly, the judgment is
affirmed in part and reversed in part and remanded to the district court for trial.
____________
101 Nev. 676, 676 (1985) Brinkley v. State
JOHN BRINKLEY and HUGH EARL DRUMMOND, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 16083
November 5, 1985 708 P.2d 1026
Appeals from judgments of conviction; Third Judicial District Court; Churchill County,
Mario G. Recanzone, Judge.
Defendants were convicted in the district court of unlawfully obtaining a controlled
substance or prescription and of conspiracy to obtain a controlled substance or prescription.
Defendants appealed. The Supreme Court held that: (1) defendants' motion to continue was
not a critical stage of criminal proceedings and trial court did not err by denying assistance of
counsel in presenting the motion for continuance; (2) evidence that subsequent to occurrence
of charged crimes defendant attempted to obtain controlled substance by utilizing forged
prescription tended to show common plan or scheme and was properly admitted; and (3) trial
court abused its discretion by denying defendant's request for an evaluation to determine
whether defendant was substance abuser.
Affirmed in part; reversed in part. Remanded with instructions.
Robert A. Bork, State Public Defender; Kenneth Ward, Deputy; Michael Powell, Deputy,
Carson City; for Appellant Brinkley.
Mackedon & McCormick, Fallon, for Appellant Drummond.
Brian McKay, Attorney General, Carson City; William E. Cooper, District Attorney;
Michael Dinning, Deputy; Robert V. Bogan, Deputy, Fallon, for Respondent.
1. Criminal Law.
Right to counsel extends to any critical stage of criminal proceeding. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Defendants' motion to continue was not a critical stage of criminal proceedings and hence trial court did
not err by denying assistance of counsel in presenting motion for continuance, where motion was brought
due to defendants' displeasure with lack of communication with their court-appointed counsel and one
defendant suddenly had money to retain counsel for himself and codefendant. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Denial of motion for continuance brought by defendants immediately prior to trial due to their displeasure
with court-appointed counsel is within discretion of trial court.
4. Criminal Law.
Evidence under common plan or scheme exception to inadmissibility of evidence of other
crimes must tend to prove the charged crimes by revealing that defendant planned to
commit the crimes, and the offense must tend to establish a preconceived plan which
resulted in commission of charged crime.
bility of evidence of other crimes must tend to prove the charged crimes by revealing that defendant
planned to commit the crimes, and the offense must tend to establish a preconceived plan which resulted in
commission of charged crime. NRS 48.045, subd. 2.
5. Criminal Law.
Evidence of other crimes or bad acts deemed to fall within exception to inadmissibility of evidence of
other crimes should not be admitted if it is more likely to distract from essential issue than to bear upon it,
and decision whether to admit or exclude such evidence rests within sound discretion of trial court. NRS
48.045, subd. 2.
6. Criminal Law.
Evidence that subsequent to occurrence of charged drug offenses defendant had attempted to obtain
controlled substance by utilizing forged prescription was properly admitted under common plan or scheme
exception, where defendant claimed that failure to disclose to each practitioner that defendant was
receiving controlled substances from other practitioners was result of innocent mistake and evidence of the
forgery negated this claim, and court attempted to minimize prejudice by excluding evidence that
defendants were arrested as result of forged prescription and that defendant was convicted for his
participation in the offense. NRS 48.045, subd. 2.
7. Chemical Dependents.
Trial court abused its discretion by denying defendant's request for an evaluation to determine whether
defendant was substance abuser, even though defendant had denied having an addiction problem
throughout trial, where presentence report recognized that defendant was a probable substance abuser and
recommended an evaluation, no one but defendant consumed the drugs made available to defendant, and
defendant suffered some degree of back pain. NRS 458.310, subd. 1.
OPINION
Per Curiam:
John Brinkley stands convicted of five counts of unlawfully obtaining a controlled
substance or prescription and one count of unlawful conspiracy to obtain a controlled
substance or prescription.
Hugh Drummond stands convicted of three counts of unlawfully obtaining a controlled
substance or prescription and one count of conspiracy to obtain a controlled substance or
prescription.
Each appellant was sentenced to imprisonment in the Nevada State Prison for three years
on each count of unlawfully obtaining a controlled substance or prescription. Said sentences
were to be served concurrently with each other. Additionally, each appellant was sentenced to
one year in the Churchill County Jail for the crime of conspiracy to unlawfully obtain a
controlled substance or prescription. Said sentences to be served concurrently with the state
imprisonment.
The Facts
John Brinkley and Hugh Drummond lived together in Fallon, Nevada, with Brinkley's
elderly mother. Brinkley complained of back pain as a result of a traumatic injury suffered in
1970 and as a result of scoliosis.
Brinkley would frequent numerous medical doctors in order to obtain prescriptions for
controlled substances (Fiorinal, Fiorinal with Codeine, Percodan, etc.). In violation of NRS
453.391, Brinkley failed to inform these practitioners that he was receiving controlled
substances from others.
1
On several occasions Drummond would obtain the prescription on
Brinkley's behalf (from the practitioner) and fill the prescription at a pharmacy.
Discussion
The first issue raised on appeal was whether the trial court erred by denying Brinkley
assistance of counsel during a motion for continuance and whether the motion was
appropriately denied. Six days before trial, Brinkley and Drummond filed an In Propria
Persona Motion to Continue. The motion was brought for two reasons: (1) both appellants
were displeased with the lack of communication with their court-appointed counsel; and (2)
Drummond suddenly had money to retain counsel for himself and Brinkley. The motion was
heard the following day and denied. Additionally, the trial court denied Brinkley's request that
counsel assist him in presenting the motion.
[Headnote 1]
The right to counsel extends to any critical stage of the criminal proceeding. Garnich v.
Miller, 81 Nev. 372, 375, 403 P.2d 850, 852 (1965) citing Gideon v. Wainwright, 372 U.S.
335 (1963). Appellants fail to cite any authority to show that a motion to continue can be
deemed a critical stage of a criminal proceeding.
In Barton v. State, 96 Nev. 267, 607 P.2d 586 (1980), this court determined that the
defendant was not denied the assistance of counsel at a critical stage of the proceeding
because nothing of any significance occurred at the hearing. The defendant was not required
to take any action affecting his substantive rights; therefore, the hearing could not be deemed
critical. Id.
____________________

1
NRS 453.391, provides no person may:
2. While undergoing treatment and being supplied with any controlled substance or a prescription for
any controlled substance from one practitioner, knowingly obtain any controlled substance or a
prescription for a controlled substance from another practitioner without disclosing this fact to the second
practitioner. (Amended 1985 but the substantive portion of the statute was not effected.)
[Headnote 2]
Utilizing this guideline, it cannot be said that appellants' motion to continue was a critical
stage of their criminal proceedings. Therefore, the trial court did not err by denying assistance
of counsel in presenting the motion for continuance.
[Headnote 3]
It has also been noted by this court that the right to counsel of one's own choosing is not
absolute. Thomas v. State, 94 Nev. 605, 607, 584 P.2d 674, 676 (1978) citing United States
ex rel. Baskerville v. Deegan, 428 F.2d 714, 716 (2d Cir. 1970). Appellants had
court-appointed counsel to represent their interests at trial. The reasons provided by
appellants as to why they were displeased with court-appointed counsel were unnoteworthy.
Appellants brought their motion on for hearing five days before trial was scheduled to begin.
The jury had been subpoenaed. Ordinarily, denial of such a motion for continuance,
immediately prior to trial, is within the discretion of the trial court. Bullis v. State, 83 Nev.
175, 176, 426 P.2d 423, 424 (1967). In the instant case, there is no evidence showing an
abuse of discretion.
The second issue raised on appeal is whether the trial court erred by allowing evidence of
other criminal conduct at trial. The trial court permitted the State to introduce evidence of
other bad acts for the limited purpose of showing absence of mistake and common scheme or
plan. Additionally, the evidence was used to prove the existence of a conspiracy.
The evidence in question revealed that subsequent to the occurrence of the substantive
crimes, Drummond attempted to obtain a controlled substance by utilizing a forged
prescription. While Drummond attempted to fill the prescription, Brinkley waited outside in
the car. Brinkley admitted he had obtained a blank prescription form from Dr. Carlson.
[Headnote 4]
NRS 48.045(2) prohibits the use of other crimes or bad acts to show that a person acted in
conformity therewith. Such evidence may be admitted for other purposes, however.
2
Evidence under the common plan or scheme exception must tend to prove the charged
crimes by revealing that the defendant planned to commit the crimes. Cirillo v. State, 96 Nev.
489, 492, 611 P.2d 1093, 1095 (1980). The offense must tend to establish a preconceived
plan which resulted in commission of the charged crime.
____________________

2
NRS 48.045(2) provides as follows:
accident.
plan which resulted in commission of the charged crime. Nester v. State, 75 Nev. 41, 47, 334
P.2d 524, 527 (1959) citing Wigmore on Evidence, 2d Ed. 300.
[Headnote 5]
Once the evidence of other crimes or bad acts is deemed to fall within an exception, the
matter of a fair trial must be evaluated. The relevant evidence should not be admitted if it is
more likely to distract from the essential issue than to bear upon it. Nester at 54. The decision
whether to admit or exclude such evidence rests within the sound discretion of the trial court.
Hill v. State, 95 Nev. 327, 330, 594 P.2d 699, 701 (1979) (citation omitted).
[Headnote 6]
Brinkley claimed that the failure to disclose to each practitioner that he was receiving
controlled substances from other practitioners was the result of innocent mistake. The
evidence of the forgery negated this claim of innocent mistake. The forged prescription
revealed that Brinkley did plan to deceive for the purpose of obtaining controlled substances.
The forged prescription also tended to prove that Brinkley and Drummond planned and
schemed to obtain numerous prescriptions for controlled substances. The evidence logically
tended to show a common plan or scheme. The purpose of admitting the evidence was not
merely to show a criminal disposition. As required by this court in Brown v. State, 81 Nev.
397, 404 P.2d 428 (1965), the limited purpose for which the evidence was to be utilized was
specifically stated. Additionally, the lower court attempted to minimize any unnecessary
prejudice by excluding evidence that appellants were arrested as a result of this forged
prescription and that Drummond was convicted for his participation in the offense.
Accordingly, we see no occasion to disturb the trial court's discretionary ruling.
The third issue raised on appeal was whether the trial court erred by refusing an evaluation
of Brinkley pursuant to NRS 458.300.
3
Brinkley filed a notice of election pursuant to NRS
+S8.300 immediately following trial.
____________________

3
NRS 458.300, provides:
Subject to the provisions of NRS 458.290 to 458.350, inclusive, an alcoholic or a drug addict who has
been convicted of a crime is eligible to elect treatment under the supervision of a state-approved alcohol
or drug treatment facility before he is sentenced unless:
1. The crime is a crime against the person as provided for in chapter 200 of NRS;
2. The crime is that of selling a controlled substance as defined in chapter 453 of NRS;
3. The crime is that of driving under the influence of intoxicating liquor or while an habitual user or
under the influence of a controlled substance or while incapable of safely driving because of the use of
any chemical, poison or organic solvent as provided for in NRS 484.379,
458.300 immediately following trial. He desired an evaluation (by a court-appointed
counselor) to determine whether he was a substance abuser. The lower court denied the
request on the basis that throughout trial Brinkley denied having an addiction problem.
NRS 458.310(1) contemplates a hearing if either the court has reason to believe the
defendant is a substance abuser or the defendant claims he is an abuser.
4
The pre-sentence
report completed by the Department of Parole and Probation recognized that Brinkley was a
probable substance abuser and recommended such an evaluation. The record fails to reflect
that anyone other than Brinkley consumed the drugs made available to him. It was undisputed
that Brinkley suffered some degree of back pain. It is not unusual for persons addicted to
drugs or alcohol to deny their addiction. This denial may be the result of a lack of awareness
of the problem or an unwillingness to admit the problem and confront it.
Substance abuse is a grave and widespread problem. The American Medical Association
recognizes addiction as a psychiatric disorder. There are many treatment programs available,
and the legislature's evident intent is to divert qualified substance abusers into appropriate
programs.
____________________
or such driving which causes the death of or substantial bodily harm to another person as provided in
NRS 484.3795;
4. The alcoholic or drug addict has a record of one or more convictions of a crime of violence or of
selling a controlled substance as defined in chapter 453 of NRS, or of two or more convictions of any
felony;
5. Other criminal proceedings alleging commission of a felony are pending against the alcoholic or
drug addict;
6. The alcoholic or drug addict is on probation or parole and the appropriate parole or probation
authority does not consent to such election; or
7. The alcoholic or drug addict elected and was admitted, pursuant to NRS 458.290 to 458.350,
inclusive, to a treatment program on two prior occasions within any consecutive 2-year period. (Amended
1985 but substantive portion of the statute not effected.)

4
NRS 458.310(1), provides:
If the court has reason to believe that a person who has been convicted of a crime is an alcoholic or
drug addict, or the person states that he is an alcoholic or drug addict, and the court finds that he is
eligible to make the election provided for in NRS 458.300, the court shall hold a hearing before it
sentences the person to determine whether or not he should receive treatment under the supervision of a
state-approved alcohol or drug treatment facility. The district attorney may present the court with any
evidence concerning the advisability of permitting the person to make the election. (Amended 1985 but
the substantive portion of the statute was not effected.)
[Headnote 7]
The lower court abused its discretion when Brinkley was denied an evaluation pursuant to
NRS 458.300. John Brinkley should be evaluated. For use in that evaluation, the trial record
should be made available.
The fourth issue raised by Drummond is without merit. Accordingly, we affirm in part;
reverse in part; and remand with instructions.
____________
101 Nev. 682, 682 (1985) Long v. A-1 24 Hour Towing
DARLENE DYE LONG, Appellant, v. A-1 24 HOUR TOWING, INC., and STEVEN RAY
KING, Respondents.
No. 16136
November 5, 1985 707 P.2d 1151
Attempted appeal from an order of the district court setting aside the entry of a default and
a default judgment. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Plaintiffs appealed from order of the district court setting aside entry of a default and a
default judgment. The Supreme Court held that order of district court setting aside default
judgment was not appealable, nor was portion of district court's order setting aside clerk's
entry of default.
Appeal dismissed.
John G. Watkins, Las Vegas, for Appellant.
Fitzgibbons, Cobb & Morrell, Las Vegas, for Respondents.
Order of district court setting aside default judgment was not appealable. NRAP 3A(b)(2).
Portion of district court's order setting aside clerk's entry of default was not appealable.
OPINION
Per Curiam:
On February 22, 1984, appellant Darlene Long filed a complaint against respondents
seeking recovery for personal injuries arising out of an automobile accident. On July 11,
1984, the clerk of the district court entered defaults against respondents.
of the district court entered defaults against respondents. On August 9, 1984, Long filed a
motion for a time certain to prove up the default and requested an order shortening time.
Long's motion, however, provided no proof of service on respondents. The motion for the
order shortening time was granted that same day.
On August 15, 1984, the district court heard the motion to prove up the default;
respondents were neither present nor represented. The district court entered its default
judgment on August 20, 1984, awarding Long $72,409.80 in damages.
Seven days later, on August 27, 1984, respondents filed a motion, expressly pursuant to
NRCP 60(b)(1), seeking relief from the default judgment. Respondents contended, in their
motion, that Long had not provided the notice required by NRCP 55(b)(2) prior to obtaining
the default. On October 10, 1984, the court granted respondents' motion, set aside the default
judgment, and allowed respondents to answer appellant's complaint. Appellant has attempted
to appeal from this order.
On May 31, 1985, we issued an order requiring appellant to show cause why this appeal
should not be dismissed for lack of final, appealable determination. On June 25, 1985, we
issued a preliminary order indicating that the appeal would not be dismissed on the
jurisdictional ground raised in our previous order. Upon further review and after becoming
fully advised in the matter, however, we conclude that the order appealed from is not
appealable and that we lack jurisdiction to entertain this appeal.
[Headnote 1]
NRAP 3A(b) designates the judgments and orders from which appeals may be taken in
civil cases; where no authority to appeal is granted, no right exists. Burton v. Burton, 99 Nev.
698, 700, 669 P.2d 703, 704 (1983). Under NRAP 3A(b)(2), an appeal may be taken from
any special order made after final judgment except an order granting a motion filed and
served within sixty (60) days following entry of a default judgment, setting aside the judgment
pursuant to NRCP 60(b)(1). (Emphasis added). In the present case, respondents filed their
motion to set aside the default judgment seven (7) days after the judgment was entered.
Although the district court's order setting aside the default judgment did not cite NRCP
60(b)(1), clearly this rule furnished the basis for its order. NRCP 60(b) provides the
procedure for setting aside a default judgment. See NRCP 55(c); 10 Wright, Miller & Kane,
Federal Practice and Procedure: Civil 2d 2692 (1983).
1
See also Chiara v. Belaustegui,
S6 Nev. S56
____________________

1
As the authors of the treatise on Federal Practice and Procedure note, [t]he distinction between an entry of
default and a default judgment . . . has significance in terms of the procedure for setting them aside. The party
against whom a default has been entered typically will attempt to have his
See also Chiara v. Belaustegui, 86 Nev. 856, 477 P.2d 857 (1970). Consequently, the order of
the district court setting aside the default judgment in this case is not appealable under NRAP
3A(b). See 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d 2693 at
477 n. 7.
[Headnote 2]
Similarly, that portion of the district court's order setting aside the clerk's entry of the
default is also not appealable. It is well settled that an appeal does not lie from an order
setting aside the entry of a default. Kokkos v. Tsalikis, 91 Nev. 24, 25, 530 P.2d 756 (1975).
Having concluded that we lack jurisdiction to entertain this appeal, we hereby dismiss this
appeal.
____________________
default set aside in order to enable the action to proceed. A motion for relief under NRCP 55(c) is appropriate
for this purpose. . . . Id. at 466. Relief from a default judgment must, however, be requested by a formal
application pursuant to NRCP 60(b). See id. at 468.
____________
101 Nev. 684, 684 (1985) Jeffers v. Kaufman Machinery
THOMAS W. JEFFERS and STATE INDUSTRIAL INSURANCE SYSTEM, Intervenors,
Appellants and Cross-Respondents, v. BOB KAUFMAN MACHINERY, a Foreign
Corporation, Respondent, MECHANO-ELECTRO WORKS, INC., a California Corporation,
No. 15512
November 5, 1985 707 P.2d 1153
Appeal and cross-appeal from an order granting judgment notwithstanding the verdict and
order denying motion for a new trial; First Judicial District, Carson City; Michael E. Fondi,
Judge.
Operator's employee received personal injuries while running die casting machine, and
filed suit against machine's owner and seller. The district court withdrew issue of punitive
damages, granted owner judgment n.o.v. and upheld verdict against seller. Appeal and
cross-appeal followed. The Supreme Court held that whether owner was negligent and strictly
liable presented questions for jury.
Affirmed in part; reversed in part; jury verdict reinstated.
Woodburn, Wedge, Blakey & Jeppson and William E. Peterson, Reno; Riley M. Beckett,
Carson City, for Appellants and Cross-Respondents.
Barker, Gillock & Perry and Carl M. Hebert, Reno, for Respondent.
Vargas & Barlett and David S. McElroy, Reno, for Respondent and Cross-Appellant.
1. Judgment.
When considering judgment n.o.v., evidence is viewed in light most favorable to nonmovant, giving
nonmovant benefit of every reasonable inference from any substantial evidence supporting verdict.
2. Bailment.
Negligence of owner of die casting machine which caused injuries to operator's employee running it
presented question for jury, where owner was aware of failure of machine to meet minimum industry safety
standards and that machine had previously malfunctioned, but owner failed to insure that necessary repairs
had been made and that industry standards had been met, and did not act to warn employee of machine's
nonobvious safety hazards.
3. Bailment.
Whether owner of die casting machine was strictly liable for injuries caused by machine to operator's
employee running it presented question for jury, where owner was aware of potential safety hazards and
that machine had malfunctioned previously, but failed to convey concerns to employee.
OPINION
Per Curiam:
Appellant, Thomas W. Jeffers (Jeffers) received personal injuries while running a die
casting machine operated by his employer, Nevada Die Casting, Inc. Jeffers filed suit against
Mechano-Electro Works, Inc. (Mechano), the machine's owner, and against Bob Kaufman
Machinery, the seller of the machine, for negligence and strict liability in causing his injuries.
During trial, the court withdrew the issue of punitive damages from the jury. After trial, the
jury returned a verdict against Mechano for its negligence, and returned a verdict against
Mechano and Kaufman for their strict liability. The district court then granted Mechano a
judgment n.o.v. on both counts. An appeal and cross-appeal followed. We reverse the
judgment n.o.v. and reinstate the jury's verdict against Mechano. Also, we affirm the district
court's withdrawal of the issue of punitive damages.
[Headnote 1]
When considering a judgment n.o.v., the evidence is viewed in a light most favorable to
the nonmovant. Wilkes v. Anderson, 100 Nev. 433, 434, 683 P.2d 35 (1984). The district
court in considering the evidence on a motion for a judgment n.o.v. shall give the nonmovant
the benefit of every reasonable inference from any substantial evidence supporting the
verdict. Hernandez v. City of Salt Lake, 100 Nev. 504, 507
v. City of Salt Lake, 100 Nev. 504, 507, 686 P.2d 251 (1984). In the instant case, substantial
evidence supports the jury's verdicts; therefore, the district court erred when it granted
Mechano a judgment n.o.v. We now turn to the evidence.
[Headnote 2]
Mechano had received an invoice from Kaufman disclaiming any liability for harm caused
by the machine if they omitted to conform it to minimum industry safety standards. Mechano
delegated these repairs to Nevada Die Casting, but never checked to see if the industry
standards had been met. Mechano, also, apparently knew that the machine had malfunctioned
prior to Jeffers' accident. Despite Mechano's knowledge that the machine was unsafe, it did
not act to warn Jeffers of the machine's nonobvious safety hazards. Based on these facts, the
jury could have found Mechano negligent. See Karadanis v. Newcomb, 101 Nev. 196, 199,
698 P.2d 872 (1985); see also Gordon v. Niagra Mach. & Tool Works, 574 F.2d 1182,
1191-94 (5th Cir. 1978); Gronlie v. Positive Safety Mfg. Co., 212 N.W.2d 756, 759
(Mich.Ct.App. 1973). In addition, the jury could have decided that Nevada Die Casting's
failure to warn Jeffers did not supersede Mechano's failure to warn him. See Gordon, 574
F.2d at 1193-94; Gronlie, 212 N.W.3d at 759. Thus, the district court erred in granting
Mechano a judgment n.o.v. on the jury's negligence verdict.
[Headnote 3]
Inadequate warnings can also be the basis for strict liability. Outboard Marine Corp. v.
Schupbach, 93 Nev. 158, 162, 561 P.2d 450 (1977). Kaufman alluded vaguely to potential
safety hazards in its disclaimer invoice. Neither those concerns nor anyone else's concerns
about the machine were conveyed to Jeffers. He only received instructions on how to operate
the machine. Jeffers simply did not expect the machine to cause him harm while operating it.
See. e.g., Gordon, 574 F.2d at 1185. Based upon these facts and upon the knowledge that the
machine had malfunctioned prior to Jeffers' accident, the jury had substantial evidence to hold
Mechano strictly liable for Jeffers' injuries. Schupbach, 93 Nev. at 612, 561 P.2d 450; Ginnis
v. Mapes Hotel Corp., 86 Nev. 408, 414, 470 P.2d 135 (1970). Thus, the district court erred
in granting Mechano a judgment n.o.v. on the jury's strict liability verdict.
Finally, the district court did not err in withdrawing the issue of punitive damages from the
jury. In considering this question, we give deference to the district court's weighing of the
evidence. Summa Corp. v. Greenspun, 98 Nev. 528, 535, 655 P.2d 513 (1982). In reviewing
the record, we believe that the district court could have reasonably concluded that evidence of
malice in fact had not been presented by the parties.
had not been presented by the parties. See Warmbrodt v. Blanchard, 100 Nev. 703, 709, 692
P.2d 1282 (1984). We, therefore, affirm its decision on this issue.
In conclusion, we reverse the judgment n.o.v. for both the negligence and strict liability
counts and reinstate the jury's verdict against Mechano. We also affirm the district court's
removal of the punitive damages issue from the jury's consideration. Our resolution of this
case is dispositive of the other issues raised; therefore, we need not reach them.
____________
101 Nev. 687, 687 (1985) Sheriff v. Wu
SHERIFF, WASHOE COUNTY, NEVADA, Appellant,
v. HARVEY WU, Respondent.
No. 16156
November 5, 1985 708 P.2d 305
Sheriff's appeal from a district court order granting a pre-trial writ of habeas corpus;
Second Judicial District Court, Washoe County; Richard C. Minor, Judge.
State appealed from order of the district court granting a pretrial writ of habeas corpus.
The Supreme Court held that with regard to statute providing for prompt appearance before
magistrate having jurisdiction in case of a traffic citation, statutory language means that when
a traffic violation occurs within municipal boundaries the violator may be prosecuted in either
a municipal court or justice's court having jurisdiction of the offense; in either event violator
must be taken without unnecessary delay before court in which charge is brought.
Brian McKay, Attorney General, Carson City, Mills Lane, District Attorney, Washoe
W. H. Tobeler, Reno, for Respondent.
A municipality may pass ordinances prohibiting acts already prohibited by state statute; however, mere
passage of an ordinance by municipality which prohibits an act already prohibited does not prevent other
governmental agencies from enforcing its laws.
Where a statute may be given conflicting interpretations, one rendering it constitutional, and the other
unconstitutional, the constitutional interpretation is favored.
101 Nev. 687, 688 (1985) Sheriff v. Wu
3. Automobiles.
With regard to statute [NRS 484.803, subd. 1] providing for prompt appearance before magistrate
having jurisdiction in case of a traffic citation, statutory language means that when a traffic violation occurs
within municipal boundaries the violator may be prosecuted in either a municipal court or justice's court
having jurisdiction of the offense; in either event violator must be taken without unnecessary delay before
court in which charge is brought.
OPINION
Per Curiam:
On May 6, 1984, appellant Harvey Wu was arrested by a Nevada Highway Patrol officer
and charged with violating Washoe County Code 70.3865 (driving under the influence of
intoxicants). Wu was cited to appear in the Justice's Court of Reno Township where he
subsequently entered a plea of not guilty. It is undisputed that Wu was observed and arrested
within the Reno city limits.
At the conclusion of the state's case, Wu's attorney moved to dismiss for lack of
jurisdiction. Wu asserted that exclusive jurisdiction was vested in the Reno Municipal Court.
Wu's motion was denied; however, a subsequent writ of habeas corpus predicated on the
same ground was granted by the Second Judicial District Court. The state now appeals the
granting of the habeas corpus.
On this appeal we must determine whether a municipal court has exclusive jurisdiction
over offenses, occurring within the municipality, which are violations of both municipal
ordinances and the laws of another government agency, the county or state.
[Headnote 1]
It is well settled that a municipality may pass ordinances prohibiting acts already
prohibited by state statute. Hudson v. City of Las Vegas, 81 Nev. 677, 409 P.2d 245 (1965);
Ex Parte Sloan, 47 Nev. 109, 217 P.233 (1923). However, the mere passage of an ordinance
by a municipality which prohibits an act already prohibited does not prevent other
governmental agencies from enforcing its laws. As we stated in Sloan:
There is a conflict of authority upon this question. The decided weight of authority,
however, is to the effect that the same act may constitute an offense both against the
state and a municipal corporation. Indeed, says Judge Cooley, in his work on
Constitutional Limitations (7th ed.) p. 279, an act may be a penal offense under the
laws of the state, and further penalties, under proper legislative authority, be imposed
for its commission by municipal by-laws, and the enforcement of the one would not
preclude the enforcement of the other.
101 Nev. 687, 689 (1985) Sheriff v. Wu
47 Nev. at 115, 217 P. at 235; see also Ex Parte Siebenhauer, 14 Nev. 365 (1879).
With these principles in mind, we turn now to construction of NRS 484.803(1). That
section reads:
484.803 Appearance before magistrate having jurisdiction.
1. Whenever any person is taken before a magistrate or is given a written traffic
citation containing a notice to appear before a magistrate as provided for in NRS
484.799, the magistrate must be a justice of the peace or municipal judge who has
jurisdiction of the offense and is nearest or most accessible with reference to the place
where the alleged violation occurred, except that when the offense is alleged to have
been committed within an incorporated municipality wherein there is an established
court having jurisdiction of the offense, the person must be taken without unnecessary
delay before that court.
Wu's position is that the statutory language vests exclusive jurisdiction in municipal courts
when the offense is alleged to have been committed within an incorporated municipality
wherein there is an established court having jurisdiction of the offense. That is to say: even
when a person commits a traffic violation which offends county or state ordinance or
regulation, the violation must be prosecuted in the municipal court only when the offense is
alleged to have been committed within the city limits.
The statute can be read grammatically in a manner consistent with Wu's interpretation;
however, doing so would be contrary with Article 6, Section 9 of the Nevada Constitution,
which does not permit legislative fixing of municipal court jurisdiction to be in conflict with
that of the several courts of record.
1
Wu's reading would result in the deprivation of
jurisdiction of a court of record, the justice's court, over traffic violations committed within
the jurisdictional area of the justice's court.
The subject clause could also be permissibly read simply to require that when an offense
was to be properly charged before a municipal court, the person charged must be taken
without unnecessary delay before that court.
[Headnotes 2, 3]
Where a statute may be given conflicting interpretations, one rendering it constitutional,
and the other unconstitutional, the constitutional interpretation is favored.
____________________

1
Article 6, Section 9, Constitution of the State of Nevada reads as follows:
Municipal Courts. Provision shall be made by law prescribing the powers[,] duties and
responsibilities of any Municipal Court that may be established in pursuance of Section One, of this
Article; and also fixing by law the jurisdiction of said Court so as not to conflict with that of the several
courts of Record.
101 Nev. 687, 690 (1985) Sheriff v. Wu
rendering it constitutional, and the other unconstitutional, the constitutional interpretation is
favored. Koscot Interplanetary Inc. v. Draney, 90 Nev. 450, 530 P.2d 180 (1974).
Accordingly we adopt an interpretation which is not in conflict with the Constitution and hold
the language to mean that when a traffic violation occurs within municipal boundaries a
violator may be prosecuted in either a municipal court or justice's court having jurisdiction of
the offense. In either event the violator must be taken without unnecessary delay before that
court in which the charge is brought.
Charges could properly have been brought against Wu in the Reno Justice's Court;
therefore, the district court erred in granting the writ of habeas corpus. The order granting
habeas corpus is reversed, and the writ is quashed.
____________
101 Nev. 690, 690 (1985) SIIS v. Jesch
STATE INDUSTRIAL INSURANCE SYSTEM, Appellant,
v. MARGARET JESCH, Respondent.
No. 15250
November 7, 1985 709 P.2d 172
Appeal from judgment upholding decision of appeals officer, First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Widow sought death benefits under the Occupational Disease Act for husband's death
from mesothelioma caused by exposure to asbestos. After claim was originally denied,
appeals officer ordered payment of benefits, and State Industrial Insurance System sought
judicial review. The district court affirmed appeals officer's decision, and SIIS sought further
review. The Supreme Court held that: (1) fact that husband had not been exposed to asbestos
in the workplace for over ten years prior to diagnosis of disease did not bar death benefits
under limitations statute; (2) last injurious exposure rule controlled allocation of liability; and
(3) widow carried her burden of proof by establishing that disease was work-related, and was
not required to prove that any one employment resulted in the fatal disease but was only
obligated to provide list of employers.
Affirmed in part; remanded with instructions.
Pamela M. Bugge, General Counsel, Carson; Matthew H. Feiertag, Associate Counsel,
David R. Gamble, Carson City, for Respondent.
101 Nev. 690, 691 (1985) SIIS v. Jesch
Fact that husband who died of mesothelioma caused by exposure to asbestos had not been so exposed for
over 10 years did not bar death benefits to widow, notwithstanding literal reading of NRS 617.460,
subd. 4, 617.470, applying ten-year rule for silicosis to other respiratory diseases resulting from exposure
to dusts.
Last injurious exposure rule governed widow's claim for benefits under Occupational Disease Act, NRS
617.010 et seq., for husband's death caused by asbestos exposure resulting in mesothelioma.
Under last injurious exposure rule, widow claiming death benefits due to husband's exposure to asbestos
resulting in mesothelioma was entitled to benefits upon establishing that disease was work-related, and was
not required to prove that any one employment resulted in husband's disease but was only responsible for
providing complete list of husband's employers. NRS 617.010 et seq.
OPINION
Per Curiam:
Robert Jesch was diagnosed as having malignant mesothelioma involving the right lung in
March 1982. Mr. Jesch elected surgical intervention, radiation therapy, and chemotherapy.
All treatment modalities proved unsuccessful and there was spread of the disease into the
opposite lung, and nodes of the neck and scalp. On June 21, 1982, Mr. Jesch died. He was
fifty-eight years old at the time of his death. Before his death, Mr. Jesch and his wife were
advised by an attending physician to seek disability benefits as his disease was caused by
work-related exposure to asbestos fibers. Mrs. Jesch filed a workers' compensation claim with
the State Industrial Insurance System (SIIS) against Mr. Jesch's last employer (Ray Heating &
Sheet Metal Co.). Her claim was denied by SIIS. Mrs. Jesch appealed the denial of benefits
and, after a hearing, the hearing officer affirmed the original determination. Mrs. Jesch again
appealed the denial of benefits.
At the hearing before the appeals officer, Mrs. Jesch testified that her husband had been a
sheet metal worker for forty years. He had worked in Nevada for all but a couple of months
during that time period. Admitted as evidence at the hearing was a list of Mr. Jesch's
employers from 1967 through 1971. Also admitted was a note from Mr. Jesch explaining his
known exposures to asbestos. Both parties agreed that mesothelioma was a disease with a
latency period of twelve to forty years.
The appeals officer found that Mr. Jesch's death was caused by work-related exposure to
asbestos which occurred while employed within the State of Nevada. He dismissed Ray
Heating & Sheet Metal Co. from the action because Mr. Jesch was not exposed to asbestos
during his ten-year employment there.
101 Nev. 690, 692 (1985) SIIS v. Jesch
exposed to asbestos during his ten-year employment there. Concluding that the governing
occupational disease statutes must be interpreted to include mesothelioma, the appeals officer
reversed the decision of the hearing officer and ordered SIIS to accept and pay widow Jesch's
claim. A Petition for Judicial Review was filed by SIIS and the district court affirmed the
appeals officer's decision.
We are thus asked to decide whether compensation for mesothelioma is precluded under
our occupational disease provisions because of the lengthy latency period of the disease, and
whether the last injurious exposure rule governs the procedural requirements of filing such a
claim. Because we agree with the lower court's decision that mesothelioma is a compensable
occupational disease and that the last injurious exposure rule applies to such
successive-employer claims, we affirm.
ASBESTOS EXPOSURE
Asbestos is a mineral fiber which has been used extensively in industry and the home.
Over 3,000 products contain asbestos. S. Kusnetz and M. Hutchison, A Guide to the
Work-Relatedness of Disease 54 (1979). Asbestos exposure has been proved to result in a
number of disabling and fatal diseases. Among these diseases are lung cancer, cancer of the
mesothelial lining of the chest and abdominal cavities, and asbestosis. Asbestos exposure has
also been linked epidemiologically to gastrointestinal cancers.
There are long latency periods associated with the asbestos-related diseases.
Asbestos-induced lung cancer usually involves a latency period of greater than twenty years.
Mesothelioma generally involves a latency period of at least twenty-five to thirty years. Some
cases of mesothelioma have not manifested for more than forty years from the exposure to
asbestos.
Malignant mesotheliomas are almost always fatal within the year following diagnosis.
Treatment modalities rarely produce a cure. It is also extremely rare to observe malignant
mesothelioma in persons not exposed to asbestos. The diagnosis of occupational
mesothelioma is based on meeting the following criteria: (1) confirmed history of
occupational exposure to asbestos (2) pathological evidence of mesothelioma. Id. at 62. The
concern for workers exposed to asbestos is perhaps best reflected by the Occupational Safety
and Health Administration (OSHA): OSHA is aware of no instances in which exposure to a
toxic substance has more clearly demonstrated detrimental health effects on humans than has
asbestos exposure. The diseases caused by asbestos exposure are in the large part
life-threatening or disabling. Occupational Exposure to Asbestos, 48 Fed. Reg. 215, 51089
(1983) (codified at 29 C.F.R. 1910.1001 at 660-65).
101 Nev. 690, 693 (1985) SIIS v. Jesch
Dr. William J. Nicholson of Mt. Sinai School of Medicine (Environmental Sciences
Laboratory) testified before the Senate Labor and Human Resources Subcommittee on Labor
on April 24, 1984. He reported that the annual death toll from asbestos-related cancers are
expected to rise to approximately 10,000 by the year 2000. He further reported that an
estimated 27,500,000 workers were exposed to asbestos between 1940 and 1980. An
estimated 350,000 deaths will be related to that exposure period. Employment Safety and
Health Guide, No. 678-Part I, May 8, 1984 (CCH). It is evident that asbestos-related diseases
will be a major problem for a number of years to come.
STATUTORY INTERPRETATION
Mrs. Jesch seeks to recover death benefits under Nevada's Occupational Disease Act. NRS
617.470 of that Act governs occupational diseases of the respiratory tract resulting from
dusts. It provides:
All conditions, restrictions, limitations and other provisions of NRS 617.460 with
reference to the payment of compensation or benefits on account of silicosis shall be
applicable to the payment of compensation or benefits on account of any other
occupational disease of the respiratory tract resulting from injurious exposure to dusts.
1

NRS 617.460(4), however, restricts recovery for respiratory tract diseases by limiting the time
period in which compensation from such respiratory tract diseases can be claimed. It states:
No compensation may be paid in case of silicosis unless, during the 10 years
immediately preceding the disablement or death, the injured employee has been
exposed to harmful quantities of silicon dioxide dust for not less than 3 years in
employment in Nevada covered by the insurer. (Emphasis added.)
A narrow reading of the foregoing statutes, then, would preclude compensation in all
claims of asbestos-related cancers (including mesothelioma) and most claims of asbestosis
due to the lengthy latency periods involved with these diseases.
It has been conceded by SIIS that Mr. Jesch suffered and died from an occupational
disease possessing a lengthy latency period. Strict statutory interpretation would preclude
recovery of benefits by his widow.
Our workers' compensation laws reveal that the primary purpose is to provide economic
assistance to persons who suffer disability or death as a result of their employment.
____________________

1
Although the mesothelioma suffered by Mr. Jesch primarily involved the chest cavity and could be deemed
a respiratory disease, as noted earlier, this disease also affects the abdominal cavity.
101 Nev. 690, 694 (1985) SIIS v. Jesch
disability or death as a result of their employment. This court has a long-standing policy of
liberally construing these laws to protect workers and their families. Hansen v. Harrah's, 100
Nev. 60, 675 P.2d 394, 396 (1984). There are strong public policy reasons to support such a
position.
Unquestionably, compensation laws were enacted as a humanitarian measure. The
modern trend is to construe the industrial insurance acts broadly and liberally, to protect
the interest of the injured worker and his dependents. A reasonable, liberal and practical
construction is preferable to a narrow one, since these acts are enacted for the purpose
of giving compensation, not for the denial thereof.
Id. at 63 citing Nevada Industrial Commission v. Peck, 69 Nev. 1, 10-11, 239 P.2d 244, 248
(1952).
It is necessary for the legislature's goals and overall objectives of the Occupational Disease
Act to be met. It has been noted by this court that statutory interpretation should not yield an
unreasonable result if a more reasonable result is available. Sheriff v. Smith, 91 Nev. 729,
733, 542 P.2d 440, 443 (1975); Cragun v. Nevada Pub. Employees' Ret. Bd., 92 Nev. 202,
205, 547 P.2d 1356, 1358 (1976) citing Penrose v. Whitacre, 61 Nev. 440, 455, 132 P.2d 609,
616 (1942).
Since the purpose of the Occupational Disease Act is to compensate workers for
work-related illness or injury, the exclusion of Mrs. Jesch's claim would be inconsistent with
its basic intent. The legislative desire was to provide for workers. Mr. Jesch worked most of
his life in Nevada and died from mesothelioma. Mr. Jesch provided a list of his employers to
SIIS and pinpointed his known exposures to asbestos. It is undisputed that mesothelioma is an
asbestos-related disease with a lengthy latency period. The legislature could not have
intended to exclude Mrs. Jesch's claim for benefits. See Welfare Div. v. Washoe Co. Welfare
Dep't, 88 Nev. 635, 637-38, 503 P.2d 457, 459 (1972) (citations omitted); Ex Parte Iratacable,
55 Nev. 263, 282, 30 P.2d 284, 290 (1934) (citation omitted); Donoghue v. Tonopah Oriental
Mining Co., 45 Nev. 110, 116-17, 198, P. 553, 554 (1921).
We feel it is also necessary to examine the purposes which statutes of limitations are
designed to serve. It is generally agreed that there exist three purposes. First, there is an
evidentiary purpose. The desire is to reduce the likelihood of error or fraud that may occur
when evaluating factual matters occurring many years before. Memories fade, witnesses
disappear, and evidence may be lost. Second, there is a desire to assure a potential defendant
that he will not be liable under the law for an indefinite period of time. Third, there is a desire
to discourage prospective claimants from sleeping on their rights. E.g., P. Barth with H.
101 Nev. 690, 695 (1985) SIIS v. Jesch
Hunt, Workers' Compensation and Work Related Illnesses and Disease 120 (1980).
When evaluating the traditional purposes of statutes of limitations, it is observed that the
evidentiary problems frequently encountered with stale cases are not as likely to occur
when dealing with asbestos-related claims. Asbestos-related evidence is not rendered
unreliable with the passage of time. In fact, the necessary evidence to prove the claim
develops over a period of time (i.e. the physical manifestations of the asbestos-related
disease). Once asbestos fibers are inhaled into the lungs, they remain there and can be
substantiated clinically. The likelihood of error or fraud in establishing an asbestos-related
claim is therefore unlikely. 52 U.Cin.L.Rev. 239, 244 n. 36 (1983).
There also is a legitimate interest in providing a potential defendant with certainty
regarding potential liability. But it is necessary to balance the potential defendant's interest in
a desire for certainty against the interests of a disabled worker who could not discover his
disability. Such a situation requires that the interest of the potential defendant give way to the
worker's right to a remedy. Id. at 247 and n. 64.
[Headnote 1]
In sum, the goal of the Occupational Disease Act is to provide compensation for
work-related illness or injury. After consideration of legislative intent and this court's past
construction of workers' compensation statutes, we believe the limitations imposed by NRS
617.460 and 617.470 were not intended to preclude recovery for someone in the position of
Mrs. Jesch.
2

PROCEDURAL COMPLIANCE: THE LAST
INJURIOUS EXPOSURE RULE
Mrs. Jesch's claim was denied because she was unable to name a specific employer
responsible for the asbestos exposure resulting in the mesothelioma. SIIS was provided a list
of Mr. Jesch's employers from 1967 through 1971 along with information from Mr. Jesch
concerning his exposures to asbestos during the 1940's and 1950's. It is unclear as to whether
SIIS has a complete list of Mr. Jesch's employers from 1942 until 1967.
____________________

2
If the legislature believes some limitation is necessary, it may, of course, impose such a statute. There are
those who advocate that the most rational response to latent disease claims is the rule that the cause of action
does not accrue until the claimant becomes aware of the disease or should have become aware of the disease.
This would forestall the injustice that would result from barring a claim before it is known to exist. Osteen v.
A.C. & S., Inc., 307 N.W.2d 514, 517 (Neb. 1981) citing Hauff v. Kimball, 77 N.W.2d 683, 687 (1956);
Comment, Asbestosis: Who Will Pay the Plaintiff ? 57 Tul.L.Rev. 1491, 1493, 1499 (1983); See Urie v.
Thompson, 337 U.S. 163, 169-70 (1949); Cf. State Farm Fire and Cas. v. All Elec., Inc., 99 Nev. 222, 660 P.2d
995 (1983).
101 Nev. 690, 696 (1985) SIIS v. Jesch
The Nevada Occupational Disease Act provides no authority to govern this particular
procedural problem. The district court, however, determined that utilization of the last
injurious exposure rule to Mrs. Jesch's claim resolves the procedural complications which
disturb the SIIS.
Simply stated, the last injurious exposure rule in occupational disease,
successive-employer cases places full liability upon the carrier covering the risk at the time
of the most recent injury that bears a causal relation to the disability. 4 A. Larson, The Law
of Workmen's Compensation 95.20 (1984). A majority of jurisdictions have adopted the rule
in successive-employer occupational disease cases either by statutory or judicial action. Id.
In an asbestos-related case it could be a tremendous initial task to discover all the
employers responsible for the occupational disease. Then it would be necessary to attempt to
apportion the amount of exposure which occurred with each employer. A state's workers
compensation agency would be excessively burdened and the claimant would suffer a delay in
payment of benefits. Larson, supra, at 95.24. Just such problems prompted the Nebraska
Supreme Court to adopt the last injurious exposure rule in asbestos-related cases. The court
quoted from an earlier Tennessee case: [W]e are constrained to so interpret our Workmen's
Compensation Law as will best serve the interests of employees who suffer from an
occupational disease, rather than attempt an adjustment of their rights in the light of equities
that may exist between [successive employers]. Osteen v. A.C. & S., Inc., 307 N.W.2d 514,
519 (1981) quoting Wilson v. Van Buren County, 278 S.W.2d 685, 688 (Tenn. 1955).
In response to the argument that it is unfair for one employer to bear the burden of
compensation for a disease to which other employers contributed, the Nebraska Supreme
Court responded: [E]ven though liability imposed under this rule can have a harsh result,
there will be a spreading of the risk when the total picture of asbestos litigation is considered
on a national basis. 307 N.W.2d at 520; See also Boise Cascade Corp. v. Starbuck, 675 P.2d
1044, 1046 (Or. 1984); Matter of Compensation of Brache, 646 P.2d 1330, 1336-37 (Or.
1982).
[Headnote 2]
For the reasons elucidated above, we agree that the last injurious exposure rule provides
the most efficient and reasonable means of establishing liability in successive-employer,
occupational disease cases. Since it has been concluded that Mr. Jesch worked most of his life
in Nevada, his last in-state employer bearing a causal relationship to the diagnosis of
mesothelioma will assume responsibility for compensation.
Utilizing the last injurious exposure rule does not, however, resolve the claim by SIIS
that Mrs.
101 Nev. 690, 697 (1985) SIIS v. Jesch
resolve the claim by SIIS that Mrs. Jesch failed to name the last responsible employer. The
Oregon Supreme Court considered the procedural difficulties encountered when filing a claim
involving an insidious disease. In Inkley v. Forest Fiber Products Co., 605 P.2d 1175 (Or.
1980), the court adopted the last injurious exposure rule and concluded that a disabled worker
need not meet the often impossible burden of showing that the workplace conditions at a
specific time and place caused his disability. 605 P.2d at 1178. The [last injurious exposure]
rule requires the claimant to show only that the employment environment during the relevant
period could have been a contributory cause of the disease. Id. The procedural inequities
facing the disabled claimant without application of this rule were aptly stated by the Oregon
Supreme Court:
When only one employer is involved, the claimant must show a causal relationship
between workplace conditions and his illness. In the multiple employer situation,
however, such a causality rule would expose the claimant to the risk of no recovery,
if his initial judgment as to which job had the strongest causal relation to his illness
proved faulty.
605 P.2d at 1178 (footnote omitted).
Refining its application of this rule, the Oregon Supreme Court considered a case
involving a worker with mesothelioma. Matter of Compensation of Fossum, 646 P.2d 1337
(Or. 1982). The court noted that the last injurious exposure rule involves two issues: liability
in successive-employer cases and proof of actual causation. 646 P.2d at 1340. The court
recognized that the worker was exposed to asbestos over a twenty to forty-year period and
each employment environment may have contributed to his disease. Id. The worker had
proved that at least one of his employers caused the disease, even though he could not prove
which one. Id. The court determined that the issue was not which employment caused the
disease, but which employment involved conditions which could have caused it. Id. Such is
precisely the case with Jesch's claim.
[Headnote 3]
We agree with the approach taken by these and other courts, for, without application of the
last injurious exposure rule, we would require of Mrs. Jesch proof of the unprovable and
litigation of the unlitigable. Osteen at 520 citing Holden v. Williamette Industries, Inc., 560
P.2d 298, 301 (Or.App. 1977).
Applied to her claim for death benefits, the last injurious exposure rule provides Mrs.
Jesch access to the system. She is not required to prove that any one employment resulted in
her husband's fatal disease.
101 Nev. 690, 698 (1985) SIIS v. Jesch
husband's fatal disease. Her burden of proof has been met by establishing that the disease was
work-related.
Under the last injurious exposure rule, then, the last in-state employer for whom Mr. Jesch
worked, who bears a causal relationship to the disease, is the responsible employer. Once the
worker presents substantial evidence of successive-employer work-related disability, a prima
facie case for recovery is established. The last injurious employer can then present evidence
to show that the disability is with another employer or that the disability is unrelated to
employment. The trier of fact will evaluate the evidence and render a decision.
It is hereby ordered that SIIS should conduct a hearing to determine the employer
responsible under the last injurious exposure rule. Mrs. Jesch is responsible for providing a
complete list of her late husband's employers as there is no dispute that mesothelioma is an
occupational disease.
Accordingly, we affirm in part and we remand with instructions that the district court shall
direct a determination of the last responsible employer.
Springer, C. J., and Mowbray, Gunderson, and Steffen, JJ., and Zenoff, Sr. J.,
3
concur.
____________________

3
The Honorable David Zenoff, Senior Justice, was designated to participate in this case. Nev. Const., art. 6,
19; SCR 10.
____________
101 Nev. 698, 698 (1985) Irvine v. Doyle
IN THE MATTER OF THE ESTATE OF ROY D. IRVINE, Deceased, and LOLA BYNUM
(LAUTE), Appellants, v. JACK DOYLE, ADMINISTRATOR OF THE ESTATE OF ROY
D. IRVINE, Respondent.
No. 15148
December 10, 1985 710 P.2d 1366
Appeal from an order denying a petition for the removal of an administrator and the
submission of a will to probate. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Will proponent brought action to remove administrator of decedent's estate and to admit
copy of decedent's will to probate. The district court granted administrator's motion for
dismissal and will proponent appealed. The Supreme Court held that proponent of lost or
destroyed will is required to prove that testator did not revoke lost or destroyed will during
his lifetime.
Smith & Maurer, Las Vegas, for Appellants.
Jones, Jones, Close & Brown, Las Vegas, for Respondent.
In reviewing a district court's dismissal of an action pursuant to NRCP 41(b), evidence and all
reasonable inferences that can be drawn from it must be deemed admitted, and evidence must be
interpreted in light most favorable to petitioner.
2. Wills.
A will is said to be in legal existence if it has been validly executed and has not been revoked by testator.
3. Wills.
Words in existence and fraudulently destroyed contained in NRS 136.240, subd. 3 regarding
circumstances under which a will shall be allowed to be proved as a lost or destroyed will requires
proponent of a lost or destroyed will to prove that testator did not revoke the will during his lifetime.
4. Wills.
Question of whether a will was revoked by testator under NRS 136.240, subd. 3 regarding
circumstances under which a will shall be allowed to be proved as a lost or destroyed will is a matter to be
decided by trier of fact.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying a petition requesting the
removal of an administrator and the submission of a will to probate. Following appellant Lola
Bynum's presentation of evidence at the hearing in this matter, the district court orally granted
respondent Jack Doyle's motion for dismissal pursuant to NRCP 41(b). Thereafter, the district
court issued the order appealed from which purports to deny the petition on its merits. The
district court found that Bynum failed to satisfy the provisions of NRS 136.240(3) concerning
lost wills because Bynum could not prove the alleged lost will had been in actual physical
existence at the time of the decedent's death. Therefore, the district court concluded that a
copy of the purported will could not be probated and denied Bynum's petition. For the reasons
set forth below, we reverse and remand for a new hearing.
[Headnote 1]
In reviewing a district court's dismissal of an action pursuant to NRCP 41(b), the evidence
and all reasonable inferences that can be drawn from it must be deemed admitted, and the
evidence must be interpreted in the light most favorable to the petitioner. Roche v. Schartz,
82 Nev. 409, 419 P.2d 779 (1966); see also Stackiewicz v. Nissan Motor Co.,
Stackiewicz v. Nissan Motor Co., 100 Nev. 443, 686 P.2d 925 (1984); Corn v. French, 71
Nev. 280, 289 P.2d 173 (1955). The evidence when so viewed establishes the following facts.
In 1955, Lola Bynum and the deceased, Roy Irvine, married. While married, they
purchased a home in Las Vegas, Nevada. They divorced in 1960, but remained friends. On
June 6, 1962, Bynum quitclaimed her entire interest in the Las Vegas property to Irvine.
On January 8, 1973, Bynum and several friends gathered at a local restaurant at Irvine's
request. Irvine produced a will which he signed in the presence of these friends. Three of the
friends signed the will as witnesses. Irvine gave the original and a copy of the will to Bynum.
The members of the group then read and discussed the will. The will left the Las Vegas
property to Bynum. The three witnesses to the will predeceased Irvine.
Bynum stored the original will in a box until August 28, 1977, when it was apparently
destroyed in a house fire. On July 3, 1982, Irvine died. Because no will was found, the district
court declared that Irvine had died intestate and appointed respondent Doyle, a friend of
Irvine's, as administrator of the estate. Bynum later found the copy of the will in an old
briefcase. She then commenced this action by petitioning the district court to remove Doyle
as administrator of the estate and to admit the copy of Irvine's will to probate.
At the hearing in this matter, Bynum attempted to establish that she had quitclaimed the
Las Vegas property to Irvine with the understanding that he would leave the property to her in
his will. She also attempted to establish that the deceased did in fact execute a valid will
leaving the property to her, and that the document presented for probate was an accurate copy
of that will. Finally, she attempted to prove that Irvine did not know that the original will had
been destroyed in a fire prior to his death. However, the district court refused to allow any of
this testimony to be admitted on the ground that it was irrelevant to the issue of whether the
original will had been in actual physical existence at the time of Irvine's death. In the district
court's opinion, the only relevant question under NRS 136.240(3) was whether the purported
lost will had been in actual physical existence at the time Irvine died.
Bynum presented two witnesses whose testimony was severely limited by the district
court. Consequently, Bynum elected not to call her remaining witnesses, but made an offer of
proof. These witnesses included persons who had been present when the will was executed
and others who had known Irvine and could testify concerning his intent to devise the Las
Vegas property to Bynum. The district court refused to hear the witnesses because they could
not testify as to whether the will was in actual existence at the time of Irvine's death.
the time of Irvine's death. Thereupon, Doyle made a motion to dismiss based on NRCP 41(b),
and the district court granted the motion. This appeal followed.
The question presented for review is whether NRS 136.240(3) requires a lost will to be in
actual physical existence at the time of the testator's death in order to be admitted to probate.
No will shall be allowed to be proved as a lost or destroyed will unless the same shall
be proved to have been in existence at the death of the person whose will it is claimed
to be, or be shown to have been fraudulently destroyed in the lifetime of such person,
nor unless its provisions shall be clearly and distinctly proved by at least two credible
witnesses. (Emphasis added.)
Doyle urges this court to interpret the word existence in the statute to require that a will
be in actual physical existence at the time of the testator's death to be admitted to probate, as
did the district court. According to Doyle, any other interpretation does violence to the
English language and to the statutory scheme designed to prevent the probate of spurious
wills. Some of our sister states have construed similar statutes to require actual physical
existence. See In re Estate of Lane, 86 Cal.Rptr. 620 (Ct.App. 1970); In re Estate of
Strickman, 55 Cal.Rptr. 606 (Ct.App. 1966); In re Kerckhof's Estate, 125 P.2d 284 (Wash.
1942). Doyle further urges this court to construe fraudulently destroyed to require some
intentional perversion of truth for the purpose of inducing another in reliance upon it to part
with some valuable thing belonging to him or to surrender a legal right, relying on the
definition of fraud in Black's Law Dictionary 594 (rev. 5th ed. 1979). While this may be a
good definition of fraud in some contexts, we refuse to give NRS 136.240(3) such a narrow
construction.
The problem with the construction argued for by Doyle is that it has the result of creating a
valid yet unenforceable document. NRS 133.110-133.150 provide the possible methods of
revoking a will in Nevada. Nowhere is it provided that a will is deemed revoked if it is lost or
accidentally destroyed without the testator's knowledge. Further, NRS 136.240(3) does not
purport to be an additional method of revoking a will. Therefore, under the construction of
NRS 136.240(3) proposed by Doyle, a lost or accidentally destroyed will, although valid,
could not be enforced even if the terms of the will could be objectively proved or a valid copy
of the will could be produced. A testator could die thinking his affairs in order only to have
his desires frustrated by a legal technicality. Even more anomalous under Doyle's
interpretation of the statute is the fact that a will which was surreptitiously destroyed could
be admitted to probate if proved by other evidence, while the same will, if accidentally
destroyed, could not be probated regardless of whether the testator knew of the will's
destruction prior to his death.
destroyed could be admitted to probate if proved by other evidence, while the same will, if
accidentally destroyed, could not be probated regardless of whether the testator knew of the
will's destruction prior to his death. Similar considerations prompted the Colorado Supreme
Court to comment:
There is no good reason a testator should be decreed to have died intestate, and his
wishes, solemnly committed to writing, be defeated by the loss or destruction of what
is, after all, merely the best, and not the only, evidence of his desires.
In re Eder's Estate, 29 P.2d 631, 634-635 (Colo. 1934). To ignore a testator's desires when the
testator has done all in his power to comply with the laws concerning wills would be an
injustice. We do not believe the legislature intended such a result.
[Headnote 2]
Other jurisdictions with statutes similar to NRS 136.240(3), moved by these policy
considerations, have construed the term existence in their statutes to mean legal
existence. A will is said to be in legal existence if it has been validly executed and has not
been revoked by the testator. Thus, a will lost or destroyed without the testator's knowledge
could be probated because it was in legal existence at the testator's death. See In re Eder's
Estate, 29 P.2d 631 (Colo. 1934); In re Estate of Enz, 515 P.2d 1133 (Colo.Ct.App. 1973); In
re Havel's Estate, 194 N.W. 633 (Minn. 1923); Matter of Estate of Wheadon, 579 P.2d 930
(Utah 1978).
1

Doyle argues, however, the acceptance of the legal existence theory effectively amends the
words fraudulently destroyed out of the lost wills statute. According to Doyle, a
fraudulently destroyed will would remain unrevoked and would therefore have been in
existence at the time of death under the legal existence theory. Thus, fraudulently
destroyed is rendered nugatory or redundant. Some jurisdictions have refused to construe in
existence to mean legal existence for this reason. However, these jurisdictions have reached
the same result by construing fraudulently destroyed to mean destroyed by somebody other
than the testator without his consent or direction, or by accident without his knowledge. See
In re Estate of Newman, 518 P.2d 800, 801-02 (Mont. 1974); In re Fox' Will, 174 N.E.2d 499
(N.Y. 1961). We note that by giving fraudulently destroyed this meaning, the term in
existence is rendered redundant.
____________________

1
Utah's lost wills statute has since been repealed and replaced by the more liberal Uniform Probate Code.
However, the views expressed in Matter of Estate of Wheadon remain valid. See Matter of Estate of Wheadon,
579 P.2d at 931. Minnesota's lost wills statute has been replaced by a statute that requires that a will be
unrevoked at the time of death. See In re Greenberg's Estate, 82 N.W.2d 239 (Minn. 1957). Thus, the same result
was achieved by legislation.
[Headnotes 3, 4]
We conclude that it is unnecessary to so construe either of the terms in this statute in order
to reach a just result. Instead, we choose to construe the statute as a whole, giving effect to
each word without ignoring the intent of the legislature. See generally Nevada Tax Comm'n
v. Bernhard, 100 Nev. 348, 683 P.2d 21 (1984) (statute should be read to give meaning to all
of its parts); Spencer v. Harrah's Inc., 98 Nev. 99, 641 P.2d 481 (1982) (court will not give
statute a construction contrary to its clear meaning). In Fox, the New York Court of Appeals
made the following pertinent statement:
By requiring proof that a lost or destroyed will was either in existence at the time of
the testator's death, or was fraudulently destroyed in his lifetime, the Legislature
merely intended to require proof that either the will had not been destroyed during the
testator's lifetime or that, if destroyed during his lifetime, it had not been destroyed by
him or by his authority. In other words, all that section 143 requires is proof that the
testator himself had not revoked the lost or destroyed will, proof that would overcome
the common-law presumption of revocation.
In re Fox' Will, 174 N.E.2d 499, 504 (N.Y. 1961). We agree with this statement. At common
law, when an executed will could not be found after the death of a testator, there was a strong
presumption that it was revoked by destruction by the testator. Id. at 505; Matter of Estate of
Wheadon, 579 P.2d at 932. NRS 136.240(3) codifies the common law rule and places the
burden of overcoming the presumption on the proponent of a lost or destroyed will.
Accordingly, we hold that the words in existence and fraudulently destroyed taken
together convey the legislative intent to require the proponent of a lost or destroyed will to
prove that the testator did not revoke the lost or destroyed will during his lifetime. Further,
the question of whether a will was revoked is a matter to be decided by the trier of fact. See In
re Killgore's Estate, 370 P.2d 512 (Idaho 1962).
Finally, Doyle argues that such an interpretation of the statute will allow spurious wills to
be probated. We note, however, that in addition to proving that a will remains unrevoked, a
proponent of a lost or destroyed will must prove the provisions of the will clearly and
distinctly by at least two credible witnesses under NRS 136.240(3). These provisions will
adequately protect against the probate of spurious wills.
Doyle argues that the district court's judgment may be upheld independently of NRS
136.240(3). According to Doyle, the district court decided Irvine knew of the destruction of
the will prior to his death. Doyle asserts that the district court properly refused to consider
evidence tending to establish the existence of a lost will pursuant to NRS 136.230.2 At
the hearing, however, the district court refused to allow Bynum to present any evidence
relevant to the issue of whether Irvine knew of the destruction of his will prior to his
death.
to consider evidence tending to establish the existence of a lost will pursuant to NRS
136.230.
2
At the hearing, however, the district court refused to allow Bynum to present any
evidence relevant to the issue of whether Irvine knew of the destruction of his will prior to his
death. Instead, the district court made it abundantly clear that, in its opinion, the only relevant
inquiry was whether the purported lost will had been in actual physical existence at the time
of Irvine's death. Consequently, the district court's statements about Irvine's knowledge were
mere conjecture and did not enter into the district court's decision. Therefore, the order of the
district court cannot be sustained on the basis of NRS 136.230.
The decision of the district court in this case was based on an invalid construction of NRS
136.240(3), and must be reversed. Bynum attempted, but was not allowed, to prove that
Irvine had executed a valid will which was destroyed prior to his death without his
knowledge. Bynum's reasons for executing the quitclaim deed were relevant to the inquiry of
whether Irvine intended to leave the Las Vegas property to Bynum and whether Irvine
revoked his will or intended to revoke his will prior to his death. Further, the testimony of the
other witnesses was relevant to the issue of the existence and content of Irvine's purported
will. Because the district court excluded this evidence, no factual determinations have been
made on these important issues. Accordingly, this case is reversed and remanded for a new
hearing.
3

____________________

2
Whenever any will shall be lost by accident or destroyed by fraud without the knowledge of the
testator, the district court shall have power to take proof of the execution and validity of the will and to
establish the same, notice to all persons having first been given, as prescribed in cases of proof of wills in
other cases.

3
The Honorable Cliff Young, Justice, did not participate in the consideration of this case.
____________
101 Nev. 705, 705 (1985) State v. Eaton
STATE OF NEVADA, Appellant and Cross-Respondent, v. CHRYSTAL EATON,
No. 15158
December 10, 1985 710 P.2d 1370
Appeal and cross-appeal from a judgment entered on a jury verdict awarding damages.
Second Judicial District Court, Washoe County, Roy L. Torvinen, Judge.
A personal injury and wrongful death action arising out of a car accident caused by icy
road conditions was brought by infant decedent's mother against the State of Nevada. The
district court entered judgment on a jury verdict awarding damages, and an appeal and
cross-appeal were taken. The Supreme Court, Mowbray, J., held that: (1) the district court's
calculation of damages, as modified for prejudgment interest, was proper and would be
affirmed, but (2) a cause of action is now recognized in Nevada for serious emotional distress
which results in physical symptoms caused by apprehending the death or serious injury of a
loved one due to the negligence of defendant, and therefore plaintiff in this case should have
been permitted to present to the jury her claim for negligent infliction of emotional distress.
[Rehearing denied April 24, 1986]
Brian McKay, Attorney General, Steven F. Stucker, Deputy Attorney General, Carson City,
for Appellant and Cross-Respondent.
Erickson, Thorpe, Swainston & Cobb, Ltd., Reno, for Respondent and Cross-Appellant.
1. Automobiles.
In personal injury and wrongful death action arising out of car accident caused by icy road conditions,
evidence concerning the failure of highway patrol troopers to place flares or otherwise warn motorists of
treacherous ice was properly admitted, as the highway patrol knew of the ice one hour before fatal accident
occurred, and a trooper was on the scene 20 minutes prior to the accident but did nothing to warn
oncoming motorists.
2. Damages; Death.
Trial court, in personal injury and wrongful death action brought against the State, was not required to
reduce the jury award on each claim to the statutory maximum recoverable against the State before
subtracting the amount plaintiff received for releasing the other codefendants. NRS 41.035, subd. 1.
3. Damages; Death.
Trial court, in personal injury and wrongful death action brought against the State, properly allocated
between plaintiff's two claims the amount she received from the settling codefendants in exchange for their
release.
101 Nev. 705, 706 (1985) State v. Eaton
4. Interest.
Plaintiff in personal injury action brought against the State was entitled to prejudgment interest on the
entire amount of her personal injury award, not just on the amount of her past medical bills, since the
personal injury award was based on jury instructions compensating plaintiff for her medical expenses, pain
and suffering incurred to the date of the jury verdict. NRS 17.130, subd. 2.
5. Damages.
Plaintiff bystanders need not prove that they were in the zone of danger to recover for negligently
inflicted emotional distress in Nevada.
6. Torts.
Doctrine of proximate cause, as a limit on liability, applies to every tort action.
7. Damages.
To recover for emotional distress caused by witnessing harm to another, plaintiff must prove that
defendant's negligent conduct was the proximate cause of harm to the victim; in addition, plaintiff must
prove that the shock of witnessing the harm was the proximate cause of his or her emotional distress.
8. Death.
Under a cause of action for negligent infliction of emotional distress, recovery may not be had for grief
that may follow from the death of a related accident victim.
9. Damages.
In the context of bystander recovery for negligent infliction of emotional distress, if the victim's
negligence exceeded that of defendant, then the victim could not recover for his or her injuries and neither
can the witness recover for the emotional distress caused by observing those injuries.
10. Negligence.
As regards negligent infliction of emotional distress, the principles of comparative negligence operate to
limit liability in bystander cases just as they do in other types of cases.
11. Damages; Death.
A defendant would be liable for serious emotional distress of a parent who witnessed the death or injury
of a child, but may not be liable for serious emotional distress of a stranger who also witnessed the
accident.
12. Damages.
In calculating the degree of foreseeability of emotional harm to plaintiff bystander resulting from
defendant's conduct, three factors should be considered: (1) whether plaintiff was located near the scene of
the accident as contrasted with one who was a distance away from it; (2) whether the shock resulted from a
direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident,
as contrasted with learning of it from others; and (3) whether plaintiff and the victim were closely related,
as contrasted with an absence of any relationship or the presence of only a distant one.
13. Damages; Death.
A cause of action exists in Nevada for serious emotional distress which results in physical symptoms
caused by apprehending the death or serious injury of a loved one due to the negligence of defendant.
101 Nev. 705, 707 (1985) State v. Eaton
OPINION
A jury awarded respondent Chrystal Eaton $40,472.65 for personal injuries and $100,000
for the wrongful death of her infant daughter, Amber, arising out of a car accident.
1
Chrystal's husband and Amber's father, Byron Ronald Eaton (Ron), was driving the family car
when it struck the rear of a truck. Ron was not a plaintiff in this action.
We reject appellant's assignments of error and affirm the judgment for Chrystal. We also
affirm the calculation of damages by the district court as modified for prejudgment interest.
We hold, however, that Chrystal should have been permitted to present to the jury her claim
for negligent infliction of emotional distress. We reverse for a trial on this issue.
THE FACTS
On January 11, 1980, Ron and Chrystal Eaton and their thirteen-month-old daughter,
Amber, were traveling west on Interstate 80 between Battle Mountain and Winnemucca,
Nevada. Their car reached Golconda Summit at about 7:00 p.m. It was dark but the weather
was clear. The freeway approaching the summit from the east was dry. The freeway on the
western slope was slick with black ice. Black ice is invisible and is one of the most hazardous
of all road conditions.
Earlier that evening, two westbound cars slid off the freeway just past the summit due to
the ice. These accidents, which did not result in injuries, were reported to the Nevada
Highway Patrol at 5:59 p.m. At 6:00 p.m., Trooper Bradley reported to the highway patrol
dispatcher that the freeway two to three miles west of Golconda was solid ice. He requested
that sanding trucks be sent to the summit. At 6:34 p.m., Trooper Butler asked the dispatcher
whether the sanding trucks were coming out because he had received several reports from
truckers of ice on Golconda.
Trooper Butler arrived at the scene of the two accidents at 6:51 p.m. At 7:00 p.m., the
drivers of two westbound semi-trucks pulled over to the shoulder to put on chains. The trucks
were slipping on the black ice. They parked the trucks just west of the summit. From that
point, the drivers could not see the two cars off the road or the flashers of the patrol car
because the freeway curved.
____________________

1
The district court reduced the award to a total of $82,352.65 pursuant to NRS 17.425 and NRS 41.035(1).
101 Nev. 705, 708 (1985) State v. Eaton
curved. Trooper Butler did not place cones or flares to warn oncoming motorists of the black
ice.
Ron testified that he did not see a sign warning of possible icy conditions on the summit.
The Eatons reached the crest of Golconda without difficulty. Ron had no way of knowing of
the black ice a few yards ahead. At 7:10 p.m., the Eaton's car headed down the western slope
of Golconda at about fifty miles per hour. Amber, who had been ill, had just finished nursing
and was asleep in her mother's lap. Ron changed into the left lane to give the two semis on
the shoulder more room. Then he saw another semi ahead in the same lane traveling at five to
fifteen miles per hour. Ron tried to change lanes again and to slow down. The car slid on the
black ice. The car slammed into the rear of the semi. The impact dislocated Chrystal's ankle.
Amber was crushed between Chrystal and the dashboard. Amber died on impact of head
injuries. Believing Amber to be asleep, Chrystal handed her through the car window to the
patrolman. Ron later went to the patrol car to check on Amber. He was told she was dead.
Ron began shouting to Chrystal that the baby was dead. Chrystal heard Ron screaming but
could not believe that Amber was dead. When she asked the patrolman about her baby, he
just shook his head.
After the Eaton accident, the patrolman ordered a trucker to prevent westbound traffic
from crossing the summit. This lane was closed until the western slope of Golconda Summit
was sanded.
As a result of Amber's death and her own injuries, Chrystal became depressed and lost
twenty pounds. She spent several weeks while her ankle was in a cast lying in the family den
with the lights off. Chrystal sued Ron Eaton, the driver of the semi the Eatons hit, his
employer, and the State of Nevada, among others. Chrystal settled with all the defendants
except the State and proceeded to trial against the State alone. The State appeals from the
judgment for Chrystal and from the calculation of the damages. Chrystal cross-appeals from
the district court's failure to instruct the jury on her claim for negligent infliction of emotional
distress and from the calculation of damages.
THE LIABILITY OF THE STATE
[Headnote 1]
Appellant contends that the district court erred by admitting evidence on the failure of
State employees, the highway patrol troopers, to place flares or otherwise warn motorists of
the black ice. The State's pretrial motion in limine to exclude such evidence was denied. The
State argues that the placement of warning flares is a discretionary act. Therefore, the State
suggests, it is immune from liability for the failure of its employees to place warning flares.
101 Nev. 705, 709 (1985) State v. Eaton
from liability for the failure of its employees to place warning flares. NRS 41.032(2).
2
We
disagree. This court has held:
[T]he State has a duty to exercise due care to keep its highways reasonably safe for the
traveling public. Inherent in this duty of care is the alternative duty to either remedy a
known hazardous condition on its highways or give appropriate warning of its presence.
[Citations omitted.]
State v. Kallio, 92 Nev. 665, 667, 557 P.2d 705, 706 (1976). In the case at bar, the State
through its highway patrol knew of the black ice on the western slope of Golconda Summit
one hour before the Eaton accident occurred. Furthermore, a highway patrol trooper was on
the scene twenty minutes prior to the accident but did nothing to warn oncoming motorists of
the hazard. The icy road was not sanded until after the fatal crash. Under these facts, the State
could be held liable for failure to warn motorists of the known hazard. Id. The district court
did not err by admitting evidence on the use or absence of flares.
THE CALCULATION OF DAMAGES
Both parties challenge the district court's calculation of damages. The jury awarded
Chrystal $40,472.65 for her personal injuries and $100,000 for the wrongful death of Amber.
Chrystal settled with all defendants except the State for $29,000. Pursuant to NRS 17.245,
3
the district court reduced the jury award by $29,000. The court subtracted $8,120 of the
$29,000 from the personal injury award. The court subtracted the remainder of the $29,000
{$20,SS0) from the wrongful death award.
____________________

2
Except as provided in NRS 278.0233 no action may be brought under NRS 41.031 or against an officer
or employee of the state or any of its agencies or political subdivisions which is:
. . . .
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of the state or any of its agencies or political subdivisions or of any officer or
employee of any of these, whether or not the discretion involved is abused.

3
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.
101 Nev. 705, 710 (1985) State v. Eaton
$29,000 ($20,880) from the wrongful death award. See generally NRS 17.245. The court then
reduced the wrongful death award to $50,000, the statutory maximum for claims against the
State. NRS 41.035(1).
4
(The personal injury award of $32,352.65 was already below the
maximum.) Thus, Chrystal's total award was $82,352.65.
[Headnote 2]
The State argues that the court should have reduced the award on each claim to the
maximum under NRS 41.035(1) before subtracting the amount Chrystal received for
releasing the other codefendants. We disagree. In a hypothetical case, a plaintiff may settle
with all defendants except the State for $75,000. After proceeding to trial against the State,
the plaintiff may obtain a $1 million judgment. Under the State's proposal, this judgment
would be reduced to $50,000 before the $75,000 received for the release was subtracted.
Thus, the State would sustain no liability despite a $1 million judgment against it. This result
contravenes the legislative purpose of the statutory waiver of immunity for actions against the
State. NRS 41.031 et seq. The purpose of these statutes was to waive immunity and,
correlatively, to strictly construe limitations upon that waiver. State v. Silva, 86 Nev. 911,
914, 478 P.2d 591, 593 (1970). We hold that the district court's method of calculating the
damages was consistent with this purpose. The district court properly subtracted the $29,000
Chrystal received for releasing the State's codefendants under NRS 17.245 before it reduced
the jury award for the wrongful death claim to $50,000 under NRS 41.035.
[Headnote 3]
On her cross-appeal, Chrystal contends the district court erred by allocating the $29,000
Chrystal received in exchange for the release between her two claims. We perceive no error.
The district court calculated the percentage of the total jury award that was represented by the
personal injury award (28 percent) and the percentage that was represented by the wrongful
death award (72 percent). The court then applied 28 percent of the $29,000 to reduce the
personal injury award and applied 72 percent of the $29,000 to reduce the wrongful death
award. Chrystal does not dispute that the $29,000 was in exchange for a release of all
claims, including both her personal injury and her wrongful death claims, against the
settling defendants.
____________________

4
An award for damages in an action sounding in tort brought under NRS 41.031 or against a present or
former officer or employee of the state or any political subdivision or any state legislator or former 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.
101 Nev. 705, 711 (1985) State v. Eaton
dispute that the $29,000 was in exchange for a release of all claims, including both her
personal injury and her wrongful death claims, against the settling defendants. Therefore, we
hold that the lower court did not err by allocating the $29,000 between the personal injury and
the wrongful death awards. See NRS 17.245.
[Headnote 4]
Chrystal also argues that the district court erred by awarding her prejudgment interest on
the amount of her past medical bills alone rather than on the entire amount of her personal
injury award. See NRS 17.130(2).
5
We agree. The personal injury award was based on jury
instructions compensating Chrystal for her medical expenses, pain and suffering incurred to
the date of the jury verdict. These constitute past damages. Therefore, the entire amount is
subject to prejudgment interest. Id.
THE CLAIM FOR NEGLIGENT INFLICTION
OF EMOTIONAL DISTRESS
Chrystal's complaint alleged damages for emotional distress caused by witnessing the
death of Amber. The district court refused to instruct the jury on this claim. The issue
presented by this appeal although of first impression in this jurisdiction has been the subject
of much commentary and many cases in other jurisdictions.
6

THE IMPACT RULE
Traditionally, courts did not allow recovery for emotional distress which neither resulted
from nor lead to physical injury or sickness against a defendant who has been merely
negligent. II Harper and James, The Law of Torts 18.4, p. 1031 (1956). A majority of
jurisdictions once required that the plaintiff suffer some physical touching or impact as a
result of defendant's negligent conduct in order to recover for emotional distress.
____________________

5
When no rate of interest is provided by contract or otherwise by law, or specified in the judgment, the
judgment draws interest at the rate of 12 percent per annum from the time of service of the summons and
complaint until satisfied, except for any amount representing future damages, which draws interest at that
rate only from the time of the entry of the judgment until satisfied.

6
In a related area, this Court recently recognized a cause of action for intentional infliction of emotional
distress. Star v. Rabello, 97 Nev. 124, 625 P.2d 90 (1981). The court noted that bystanders may recover for the
intentional infliction of emotional distress caused by witnessing the defendant's outrageous conduct to another
where the bystander was a close relative of the person against whom the outrage was committed and where the
defendant's conduct was violent and shocking. 97 Nev. at 126, 625 P.2d at 92.
101 Nev. 705, 712 (1985) State v. Eaton
Prosser and Keeton, The Law of Torts, 54, p. 363 (5th ed. 1984). The requirement of
impact, which was supposed to guarantee that the mental disturbance was genuine, has in
recent years been satisfied by such minor contact as dust in the eye and smoke inhalation,
which played no part in causing the actual harm. Id., 54, p. 331; Porter v. Delaware, L. &
W. R. Co., 63 A. 860 (N.J. 1906) (dust in eye); Morton v. Stack, 170 N.E. 869 (Ohio 1930)
(recovery allowed for physical injuries resulting from emotional distress where only physical
contact was smoke inhalation). In a few jurisdictions the impact rule still applies to claims for
emotional distress. Prosser and Keeton, 54, p. 365. See, e.g., Champion v. Gray, 420 So.2d
348 (Fla.App. 1982). However, the vast majority of states now reject the impact rule. Rickey
v. Chicago Transit Auth., 457 N.E.2d 1 (Ill. 1983); Dziokonski v. Babineau, 380 N.E.2d 1295
(Mass. 1978); Corso v. Merrill, 406 A.2d 300 (N.H. 1979); Whetham v. Bismark Hospital,
197 N.W.2d 678 (N.D. 1972); Schultz v. Barberton Glass Co., 447 N.E.2d 109 (Ohio 1983);
Sinn v. Burd, 404 A.2d 672 (Pa. 1979); Garrett by Kravit v. City of New Berlin, 362 N.W.2d
137 (Wis. 1985).
THE ZONE OF DANGER RULE
Many states replaced the impact rule with the zone of danger rule to limit recovery for
emotional distress. II Harper and James, 18.4, p. 1036-37. See Rickey v. Chicago Transit
Auth., 457 N.E.2d 1; Whetham v. Bismark Hospital, 197 N.W.2d 678. Under the zone of
danger rule, a bystander could recover for the emotional distress resulting from observing
harm to a close relative occasioned by the defendant's negligence only when that negligence
also threatened the bystander-plaintiff with bodily injury. Prosser and Keeton, 54 p. 365.
See Annot. 29 A.L.R.3d 1337, 1356. The jurisdictions which embrace the zone of danger rule
do so in part because it is a reasonably objective' standard which will serve the purpose of
holding strict rein on liability'. Bovsun v. Sanperi, 461 N.E.2d 843, 848 (N.Y. 1983)
(quoting Tobin v. Grossman, 249 N.E.2d 419, 424 (N.Y. 1969)). See also Stadler v. Cross,
295 N.W.2d 552, 554 (Minn. 1980).
THE DILLON RULE
The California Supreme Court rejected the zone of danger rule in Dillon v. Legg, 441 P.2d
912 (Cal. 1968), its seminal opinion on bystander recovery for negligent infliction of
emotional distress. In Dillon v. Legg, a young girl was killed by being struck by a car
negligently driven by the defendant. The mother and the sister of the victim observed the
accident; the sister may have been in the zone of danger while the mother was not.
101 Nev. 705, 713 (1985) State v. Eaton
been in the zone of danger while the mother was not. Justice Torbriner in writing for the court
noted:
The case thus illustrates the fallacy of the rule that would deny recovery in the one
situation and grant it in the other. . . . [W]e can hardly justify relief to the sister for
trauma which she suffered upon apprehension of the child's death and yet deny it to the
mother merely because of a happenstance that the sister was some few yards closer to
the accident. The instant case exposes the hopeless artificiality of the
zone-of-danger-rule.
441 P.2d 915. Other jurisdictions have criticized and rejected the zone of danger rule.
Barnhill v. Davis, 300 N.W.2d 104, 107 (Iowa 1981) (We reject the harshness and
artificiality of the zone of physical danger test); Dzionski v. Babineau, 380 N.W.2d at 1300
(Although the zone of danger rule . . . provides a means of limiting the scope of a
defendant's liability, it lacks strong logical support); Paugh v. Hanks, 451 N.E.2d 759, 763
(Ohio 1983) (We view the zone of danger' rule as being unduly restrictive).
[Headnote 5]
The main concern of courts adopting the zone of danger rule for bystander recovery for
emotional distress was to prevent the possibility of unlimited and unduly burdensome
liability. The Dillon court denied that the zone of danger rule had to be invoked to limit
liability. Instead, the court held that liability could be circumscribed in these cases, as in all
other tort cases, by the application of the general principles of negligence. 441 P.2d at 924.
The trial courts could determine whether the accident and the harm to the bystander was
reasonably foreseeable and thus mark out areas of liability, excluding the remote and
unexpected. 441 P.2d at 921. We agree with the reasoning of the California court. We see
no good reason why the general rules of tort law, including the concepts of negligence,
proximate cause, and foreseeability, long applied to all other types of injury, should not
govern the case now before us. 441 P.2d at 924. We therefore reject the zone of danger rule
as unnecessary to delineate liability under this cause of action.
7
See also II Harper and
James, 18.4, p. 1039 (mechanical rules of thumb which are at variance with these [general]
principles [of tort law] do more harm than good.").
____________________

7
Fears that the Dillon foreseeability test would lead to unlimited liability have proven to be unfounded.
California's subsequent experience demonstrates that the adoption of well-defined foreseeability factors will not
lead to unlimited liability, and that the threat of remote and unexpected liability is not a substantial fear. Corso
v. Merrill, 406 A.2d at 306. See also Versland v. Caron Transport, 671 P.2d 583, 588 (Mont. 1983).
101 Nev. 705, 714 (1985) State v. Eaton
harm than good.). Chrystal was within the zone of danger; indeed, she suffered physical
injury as a result of defendant's negligence. Future plaintiffs, however, need not prove that
they were in the zone of danger to recover for negligently inflicted emotional distress in
Nevada.
[Headnotes 6-8]
1. The doctrine of proximate cause, as a limit on liability, applies to every tort action.
Negligence is not actionable unless, without the intervention of an intervening cause, it
proximately causes the harm for which complaint was made. Thomas v. Bokelman, 86 Nev.
10, 13, 462 P.2d 1020, 1022 (1970). For a plaintiff to recover for emotional distress caused
by witnessing harm to another the plaintiff must prove the defendant's negligent conduct was
the proximate cause of the harm to the victim. Dziokonski v. Babineau, 380 N.E.2d at 1302;
Bovsun v. Sanperi, 461 N.E.2d at 848. In addition, the plaintiff must prove that the shock of
witnessing the harm was the proximate cause of his or her emotional distress. Corso v.
Merrill, 406 A.2d at 306; Bovsun v. Sanperi, 461 N.E.2d at 849. Plaintiff's burden of
proving causation in fact should not be minimized. The emotional injury must be directly
attributable to the emotional impact of the plaintiff's observation or contemporaneous sensory
perception of the accident and immediate viewing of the accident victim.
8
Corso v. Merrill,
406 A.2d at 306. Recovery may not be had, under this cause of action, for the grief that may
follow from the death of the related accident victim, for example. Id. See also Keck v.
Jackson, 593 P.2d 668, 670 (Ariz. 1979). During trial on this cause of action, Chrystal must
demonstrate the degree to which her emotional distress following the accident was the result
of being on the scene of and immediately apprehending Amber's death. If she does so,
Chrystal may be awarded additional damages based upon the jury's evaluation of this portion
of her emotional trauma.
[Headnotes 9, 10]
2. The defendant must not only have proximately caused the victim's injuries but he must
also be primarily liable for them. Dillon v. Legg, 441 P.2d at 916; Portee v. Jaffee, 417 A.2d
521, 528 (N.J. 1980). In the absence of the primary liability of the tort-feasor for the death
[or serious injury] of the [victim], we see no grounds for an independent and secondary
liability for claims for injuries by third parties."
____________________

8
One of the longstanding arguments against bystander recovery for negligently inflicted emotional distress
was the difficulty or impossibility of proving that the alleged psychic injuries in fact resulted from seeing a
gruesome accident. Sinn v. Burd, 404 A.2d at 678. The modern consensus is that medical science has
unquestionably become sophisticated enough to provide reliable and accurate evidence of the causes of mental
trauma. Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 436 (Me. 1982). See also Schultz v. Barberton
Glass Co., 447 N.E.2d at 112; Sinn v. Burd, 404 A.2d at 678.
101 Nev. 705, 715 (1985) State v. Eaton
tort-feasor for the death [or serious injury] of the [victim], we see no grounds for an
independent and secondary liability for claims for injuries by third parties. Dillon v. Legg,
441 P.2d at 916. Under Nevada's comparative negligence statute, NRS 41.141,
9
a plaintiff
may recover for negligently caused injuries only if his or her negligence does not exceed the
negligence of the defendant. In the context of bystander recovery, if the victim's negligence
exceeds that of the defendant, then the victim cannot recover for his or her injuries and
neither can the witness recover for the emotional distress caused by observing those injuries.
Dillon v. Legg, supra; Portee v. Jaffee, supra. See also Dawson v. Garcia, 666 S.W.2d 254,
260 (Tex.App. 1984) (family members of victim could not recover for emotional distress
from witnessing death of victim where the jury found victim 75 percent negligent and the
defendant 25 percent negligent under a comparative negligence statute similar to NRS
41.141). Thus, the principles of comparative negligence operate to limit liability in bystander
cases just as they do in other types of cases.
[Headnote 11]
3. A further limit on liability requires that the harm occasioned by the defendant's
negligence must be foreseeable to be compensable. A negligent defendant is responsible for
all foreseeable consequences proximately caused by his or her negligent act. Taylor v. Silva,
96 Nev. 738, 741, 615 P.2d 970, 971 (1980). Foreseeability is the cornerstone of the Dillon
test for negligently inflicted emotional distress. The California court reiterated that a
defendant was liable for emotional distress proximately caused by his negligence only when
such distress was reasonably foreseeable. 441 P.2d at 921. (Emphasis in original.) The
Court of Appeals of New York ignored the reasonableness element when it criticized Dillon
v. Legg for affording no stopping point on liability. Tobin v. Grossman, 249 N.E.2d at 423.
10
The court argued: If foreseeability be the sole test . . .
____________________

9
decedent.

10
But, as Justice Torbiner stated in Dillon v. Legg:
[T]he application of tort law can never be a matter of mathematical precision. In terms of characterizing
conduct as tortious and matching a money award to the injury suffered as well as in fixing the extent of
injury, the process cannot be perfect. Undoubtedly, ever since the
101 Nev. 705, 716 (1985) State v. Eaton
[liability] would extend to . . . any other affected bystander. Id. While it may be foreseeable
that any bystander would be traumatized by witnessing the death of a child, it is not
reasonably foreseeable that a stranger would suffer the same degree of trauma as a parent.
Therefore, a defendant would be liable for the serious emotional distress of a parent who
witnessed the death or injury of a child but may not be liable for the serious emotional
distress of a stranger who also witnessed the accident.
[Headnote 12]
4. In Dillon v. Legg, the California court articulated the following factors which trial
courts should consider in determining whether the emotional injury to the plaintiff was
reasonably foreseeable:
11

(1) Whether plaintiff was located near the scene of the accident as contrasted with one
who was a distance away from it. (2) Whether the shock resulted from a direct
emotional impact upon plaintiff from the sensory and contemporaneous observance of
the accident, as contrasted with learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related, as contrasted with an absence
of any relationship or the presence of only a distant relationship.
441 P.2d at 920. We adopt these factors to assist in calculating the degree of foreseeability of
the emotional harm to a plaintiff bystander resulting from the defendant's conduct. Other
courts which have permitted actions for negligent infliction of emotional injuries
unaccompanied by the risk of physical harm have adopted or followed these guidelines. See
D'Amicol v. Alvarez Shipping Co., Inc., 326 A.2d 129 (Conn.Sup. 1973); Kelley v. Kokua
Sales and Supply, Ltd., 532 P.2d 673 (Hawaii 1975); Dziokonski v. Babineau, 380 N.E.2d
1295; Toms v. McConnell, 207 N.W.2d 140 (Mich. App. 1973); Sinn v. Burd, 404 A.2d 672;
D'Ambra v. United States, 338 A.2d 524 (R.I. 1975); Landreth v. Reed, 570 S.W.2d 486
(Tex.Civ.App. 1978). As the Supreme Court of New Jersey noted: The three factors
described in Dillon together create a strong case for negligence liability.
____________________
ancient case of the tavern-keeper's wife who successfully avoided the hatchet cast by an irate customer (I
de S et ux v. W de S, Y.B. 22 Edw. iii, f99 pl. 60 (1348)), defendants have argued that plaintiff's claims
of injury from emotional trauma might well be fraudulent. Yet we cannot let the difficulties of
adjudication frustrate the principle that there be a remedy for every substantial wrong.
441 P.2d at 919.

11
We concur with the Dillon court in holding that the emotional injury need not have been actually foreseen
by the individual defendant but should have been reasonably foreseeable by the ordinary person under the
circumstances. 441 P.2d at 921.
101 Nev. 705, 717 (1985) State v. Eaton
The three factors described in Dillon together create a strong case for negligence
liability. In any given case, as physical proximity between plaintiff and the scene of the
accident becomes closer, the foreseeable likelihood that plaintiff will suffer emotional
distress from apprehending the physical harm of another increases. The second
requirement of direct . . . sensory and contemporaneous observance' appears to reflect
a limitation of the liability rule to traumatic distress occasioned by immediate
perception. The final criterion, that the plaintiff be closely related' to the injured
person, also embodies the judgment that only the most profound emotional interests
should receive vindication for their negligent injury.
Portee v. Jaffee, 417 A.2d at 526. See also Barnhill v. Davis, 300 N.W.2d 104; Versland v.
Caron Transport, 671 P.2d 583; Ramirez v. Armstrong, 673 P.2d 822 (N.M. 1983).
All three factors are present in the case at bar. The jury should be permitted to consider
them. Chrystal was injured in the accident which killed her daughter, Amber. Thus, she was
on the scene and was closely related to the victim. See Annot. 94 A.L.R.3d 486. While
Chrystal did not immediately realize that Amber was dead, she learned of the tragedy within
minutes through sensory and contemporaneous observance of the events following the crash,
including her husband screaming that their baby was dead. Chrystal's emotional distress was
foreseeable under the factors outlined in Dillon v. Legg. The jury should be allowed to
consider it.
We agree with the Supreme Court of New Jersey in Portee v. Jaffee, 417 A.2d at 526, that:
The task in the present case, [as in this case] involves the refinement of principles of
liability to remedy violations of reasonable care while avoiding speculative results or
punitive liability. The solution is close scrutiny of the specific personal interests
assertedly injured. By this approach, we can determine whether a defendant's freedom
of action should be burdened by the imposition of liability. In the present case, [as in
this case] the interest assertedly injured is more than a general interest in emotional
tranquility. It is the profound and abiding sentiment of parental love. The knowledge
that loved ones are safe and whole is the deepest wellspring of emotional welfare.
Against that reassuring background, the flashes of anxiety and disappointment that mar
our lives take on softer hues. No loss is greater than a loss of a loved one, and no
tragedy is more wrenching than the helpless apprehension of the death or serious injury
of one whose very existence is a precious treasure. The law should find more than pity
for one who is stricken by seeing that a loved one has been critically injured or
killed.
101 Nev. 705, 718 (1985) State v. Eaton
than pity for one who is stricken by seeing that a loved one has been critically injured or
killed.
CONCLUSION
[Headnote 13]
We affirm the judgment for Chrystal and the calculation of the awards for her personal
injury claim and her wrongful death claim as modified for prejudgment interest. We
recognize a cause of action for serious emotional distress which results in physical symptoms
caused by apprehending the death or serious injury of a loved one due to the negligence of the
defendant. We reverse and remand for a trial on this claim.
12

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

12
Any award granted Chrystal is governed by the limitations imposed by NRS 41.035, including the sums she
has already been awarded.
____________
101 Nev. 718, 718 (1985) Campbell v. District Court
WILLIAM J. CAMPBELL, Petitioner, v. MICHAEL R. GRIFFIN, District Judge of the First
Judicial District Court of the State of Nevada in and for Carson City, Nevada, Respondent.
No. 15262
December 10, 1985 710 P.2d 70
Original petition for writ of prohibition or, alternatively, mandamus.
Habeas corpus petitioner sought writ of prohibition or mandamus precluding district court
from proceeding against him in criminal prosecution for escape. The Supreme Court held
that: (1) escape was a continuing offense that was recommitted each day an escaped inmate
was not in a custodian's lawful custody; (2) statute of limitations, which requires that
indictment be found, or information or complaint filed, within three years after commission
of felony, did not begin to run until criminal conduct ceased and escapee was retaken into
custody; and (3) amended complaint, which contained affidavits and factual averments in
support of probable cause, was timely filed when it was filed one month after petitioner was
retaken into custody, even though escape had taken place more than three years earlier and
original complaint filed shortly after escape was not supported by affidavits or other factual
averments sufficient to establish probable cause for arrest.
Petition denied.
[Rehearing denied December 19, 1985] Robert A.
Robert A. Bork, State Public Defender, Carson City, for Petitioner.
Brian McKay, Attorney General, for Respondent.
1. Habeas Corpus.
Doctrine of laches did not preclude extraordinary relief on habeas corpus petition 16 months after district
court order denying petition, where petitioner's counsel explained that he did not seek extraordinary relief
promptly after district court denial because he did not believe extraordinary relief was appropriate at that
time, counsel stated that he left public defender's office for almost four months and did not handle the case
during that time, and counsel stated that when he returned to the public defender's office, petitioner
presented new arguments concerning the issue that convinced counsel to pursue extraordinary relief.
2. Criminal Law.
Legislature intended that crime of escape [NRS 212.090] be treated as a continuing one, for purpose of
statute of limitations on filing of charges.
3. Criminal Law.
Statutes of limitation on criminal offenses ordinarily begin to run when a crime has been completed.
4. Criminal Law.
Escape is a continuing offense that is recommitted each day an escaped inmate is not in a custodian's
lawful custody. NRS 212.090.
5. Criminal Law.
Statute of limitations, which provides that indictment must be found or information or complaint filed
within three years after commission of felony [NRS 171.085(2)], does not begin to run for continuing
offense of escape [NRS 212.090] until the criminal conduct ceases and the escapee is retaken into
custody.
6. Criminal Law.
Amended criminal complaint charging escape, which contained affidavits and factual averments in
support of probable cause, was timely filed, when it was filed one month after escapee was retaken into
custody, even though escape had taken place more than three years earlier and complaint filed shortly after
escape was not supported by affidavits or other factual averments sufficient to establish probable cause for
arrest, as three-year statute of limitations for filing complaint did not begin to run until escapee was retaken
into custody. NRS 171.085(2), 212.090.
OPINION
Per Curiam:
1

Petitioner William Campbell seeks a writ of prohibition or, alternatively, a writ of
mandamus, precluding the respondent district court from proceeding against him in a criminal
prosecution for one count of escape from the Nevada State Prison, a felony in violation of
NRS 212.090.
____________________

1
This petition was previously denied on the merits in an unpublished order of this court. Upon motion of the
respondent, we have determined that our decision should be issued in a published opinion. Accordingly, we
hereby issue this opinion in place of our Order Denying Petition for Writ of Prohibition or, Alternatively,
Mandamus filed October 22, 1985.
tion for one count of escape from the Nevada State Prison, a felony in violation of NRS
212.090.
On October 13, 1977, the state filed a criminal complaint against Campbell in justice's
court alleging that he committed the crime of escape three days earlier, on October 10, 1977.
The complaint was not supported by affidavits or other factual averments to establish
probable cause for arrest. A warrant of arrest was issued on October 13, 1977, based upon the
criminal complaint. Approximately four years later, Campbell was apprehended in Los
Angeles County, California, and was retaken into the custody of the Nevada Department of
Prisons on September 24, 1981.
On October 9, 1981, an amended criminal complaint was filed in justice's court against
Campbell which contained affidavits and factual averments in support of probable cause.
Campbell subsequently moved to dismiss the complaint on the ground that the three-year
statute of limitations had expired and precluded the criminal action from proceeding against
him.
2
The justice's court denied his motion, the matter proceeded to a preliminary hearing,
and Campbell was bound over for trial.
[Headnote 1]
In January of 1982, Campbell filed a pretrial petition for a writ of habeas corpus in the
district court. Campbell again contended that the original complaint, which was filed shortly
after his alleged escape, was invalid and that the statute of limitations had expired before the
complaint was amended and corrected. On July 6, 1982, the district court denied Campbell's
petition. The district judge reasoned that [w]hile the [original] complaint may not have been
sufficient to support probable cause for an arrest warrant it was [adequate] to put the
defendant on notice of the crime charged and therefore sufficient to toll the statute of
limitations as to the escape charge. Sixteen months later, Campbell petitioned this court for
extraordinary relief, challenging the district court's order.
3

Once again petitioner contends that the statute of limitations expired before the state
filed its amended complaint, and that the statute had not been tolled by the original
complaint because no facts were alleged therein to support a finding of probable cause.
____________________

2
An indictment for any other felony than murder, theft, robbery, burglary, forgery, arson or sexual
assault must be found, or an information or complaint filed, within 3 years after the commission of the
offense.

3
Counsel for petitioner explains that he did not seek extraordinary relief from this court promptly after the
district court denied his habeas petition because he did not believe extraordinary relief was appropriate at that
time. Counsel states that he left the public defender's office for almost four months in late 1982 and 1983, and
did not handle this case during that time. Counsel adds that when he returned to the public defender's office,
Campbell presented new arguments to him concerning this issue that convinced him to pursue extraordinary
relief. Cause appearing, we conclude that the doctrine
expired before the state filed its amended complaint, and that the statute had not been tolled
by the original complaint because no facts were alleged therein to support a finding of
probable cause. We need not reach the merits of this contention, however, because we have
concluded that the crime of escape is a continuing offense and that, as such, the statute of
limitations did not commence running until the crime was completed and petitioner was
retaken into custody. The amended complaint, filed one month after petitioner was retaken
into custody was, therefore, not barred by the statute of limitations. We deny the writ on this
ground.
[Headnote 2]
The Supreme Court held in United States v. Bailey, 444 U.S. 394, 413 (1980), that the
crime of escape is a continuing offense. Petitioner contends, nevertheless, that the holding in
Bailey was mandated by the federal statute of limitations, 18 U.S.C. 3290 (1948), which
specifically provides that [n]o statute of limitations shall extend to any person fleeing from
justice.
4
Petitioner asserts that because Nevada does not have a similar legislatively created
tolling statute, we should not adopt the holding in Bailey. We disagree. The language used by
the Court in Bailey clearly indicates that its holding was not based on the federal statute of
limitations, but was instead based on important policy considerations. In particular, the Court
in Bailey reasoned that [g]iven the continuing threat to society posed by an escaped prisoner,
the nature of the crime involved is such that Congress must assuredly have intended that it
be treated as a continuing one.'
5
(Emphasis added.) Id. at 413.
____________________
of laches does not preclude extraordinary relief in this case. See Buckholt v. District Court, 94 Nev. 631, 584
P.2d 672 (1978).

4
Petitioner also argues that, absent such a statute, the Supreme Court would have been constrained to apply
the policies enunciated in Toussie v. U.S., 397 U.S. 112 (1970), that criminal statutes of limitation are to be
liberally construed in favor of repose, and that the doctrine of continuing offenses should be applied only in
limited circumstances. The Court held in Toussie that a particular offense should not be construed as a
continuing one unless the explicit language of the substantive criminal statute compels such a conclusion, or the
nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing
one. Id. at 115.

5
The nature of the crime involved under the federal statute is substantially similar to that which appears in
our own.
18 U.S.C. 751(a) provides in pertinent part:
Whoever escapes or attempts to escape from the custody of the Attorney General . . . or from any
institution or facility in which he is confined . . . or from any custody under or by virtue of any process
issued under the laws of the United States . . . [shall be punished].
Every prisoner confined in a prison, or being in the lawful custody of an officer or other person, who
escapes or attempts to escape from such prison or custody . . . shall be punished. . . .
added.) Id. at 413. We agree with this reasoning in Bailey, and conclude that our legislature
also intended that the crime of escape be treated as a continuing one. See supra note 3.
Petitioner also contends that this court has implicitly considered escape not to be a
continuing offense because we have previously held that, in order to establish the defense of
duress, an escaped prisoner must show, inter alia, that he immediately reported to the proper
authorities after obtaining a position of safety. See Jorgensen v. State, 100 Nev. 541, 688 P.2d
308 (1984); Wolfe v. State, 95 Nev. 240, 591 P.2d 1155 (1979). Petitioner reasons that if
escape were a continuing offense, a special duty to report for those asserting the duress
defense would be superfluous because all escaped prisoners have a continuing legal duty to
return to custody in any event. We disagree. It is precisely because escape is by its nature a
continuing offense that the escapee must show a bona fide effort to return to custody as soon
as the claimed duress has lost its coercive force. See generally United States v. Bailey, supra
at 412-13. If the crime of escape occurred only during the course of the escapee's initial
departure from custody, and did not continue thereafter, there would be no duty for the
escapee to report to the authorities after the duress had terminated. Cf. United States v.
Chapman, 455 F.2d 746 (5th Cir. 1972) (escapee has a continuing duty to report to authorities
after escape even if initial departure from custody was lawful). Accordingly, our holdings in
Jorgensen and Wolfe requiring an escapee to report to the authorities after obtaining a
position of safety do not conflict with our conclusion that escape is a continuing offense.
[Headnotes 3-6]
Statutes of limitation ordinarily begin to run when a crime has been completed. Pendergast
v. United States, 317 U.S. 412, 418 (1943). Escape is a continuing offense that is
recommitted each day an escaped inmate is not in a custodian's lawful custody. The statute of
limitations for the continuing offense of escape does not, therefore, begin to run until the
criminal conduct ceases and the prisoner is retaken into custody. See Johnson v. State, 272
So.2d 597 (Ala.Crim.App. 1973). Consequently, the statute of limitations did not begin to run
in the present case until Campbell was retaken into custody in September of 1984. The
amended complaint, filed one month later, was therefore timely filed.
Accordingly, we hereby deny the petition.
6

____________________

6
The Honorable Cliff Young, Justice, did not participate in the consideration of this case.
____________
101 Nev. 723, 723 (1985) Lee v. Employment Security
EDWARD LEE, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT and
HOWLETT OLSON EGG COMPANY, Respondents.
No. 16114
December 10, 1985 709 P.2d 1016
Appeal from order upholding administrative denial of unemployment benefits. Eighth
Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Employee appealed from an order of the district court upholding a determination by the
Employment Security Department that employee had been terminated for misconduct and
was thus ineligible for unemployment benefits. The Supreme Court held that evidence was
insufficient to sustain determination of Employment Security Department that employee's
termination was for misconduct, thus rendering him ineligible for unemployment benefits.
Reversed.
Richard S. Segerblom, Las Vegas, for Appellant.
Crowell, Crowell, Crowell & Susich and Daniel L. O'Brien, Carson City, for Respondents.
Social Security and Public Welfare.
Evidence was insufficient to sustain determination of Employment Security Department that employee's
termination was for misconduct, thus rendering him ineligible for unemployment benefits; it was clear that
driving habits of employee, a truck driver, were tolerated by employer and he would not have been
terminated but for Department of Motor Vehicle's erroneous suspension of his driving privileges. NRS
612.385.
OPINION
Per Curiam:
This is an appeal from an order of the district court upholding a determination by the
Employment Security Department that appellant, Edward Lee, had been terminated for
misconduct and was thus ineligible for unemployment benefits. NRS 612.385.
1
Appellant, a
truck driver, was employed by respondent Howlett Olson Egg Company {"the Company").
____________________

1
NRS 612.385: A person is ineligible for benefits for the week in which he has filed a claim for benefits, if
he was discharged from his last or next to last employment for misconduct connected with his work, and remains
ineligible until he earns remuneration in covered employment equal to or exceeding his weekly benefit amount in
each of not more than 15 weeks thereafter as determined by the executive director in each case according to the
seriousness of the misconduct.
Appellant, a truck driver, was employed by respondent Howlett Olson Egg Company (the
Company). In the course of his work, Lee drove an average of 10,000 miles per month.
During the two years he was employed with the Company, while driving Company trucks,
Lee was cited on five occasions for speeding. During the same period, he was also involved
in five accidents, all of them minor.
In late 1983, Lee was talked to by his supervisor, who apparently warned him that the
Company was concerned about his driving habits. This was the first time that Lee was warned
about his driving record. It was also the last.
On January 10, 1984, the California Department of Motor Vehicles (DMV) issued an
order suspending Lee's California driving privileges for a period of six months, effective
February 13, 1984. The DMV cited as the basis for its order Lee's record of traffic citations in
California. When it learned of the DMV order, the Company terminated Lee.
Lee applied for unemployment benefits. The Employment Security Department
(Department) determined that Lee was ineligible for benefits. The Department found, in
reliance upon the DMV order, that Lee had failed to maintain his driving privileges and that
this amounted to misconduct within the meaning of NRS 612.385.
In the meantime, however, Lee had successfully appealed from the DMV's order. Under a
provision of the California Vehicle Code then in force, a person who drove more than 25,000
miles annually was allowed to accumulate more points, before his driver's license was
suspended, than a person who drove less. See Cal. Veh. Code 12810.5, repealed by 1984
Cal. Stat., ch. 667, 10, p. 139, eff. July 1, 1985. The DMV had apparently failed to take this
into account when it suspended Lee's license. Accordingly, on February 9, 1984, the DMV set
aside its order of suspension.
Lee appealed the Department's denial of unemployment benefits to a referee in the
Department's Office of Appeals. The referee concluded that Lee had been terminated because
of his driving record and that the DMV's action in rescinding its suspension order was of no
controlling significance. The referee's decision was allowed to stand by the Department
Board of Review and the district court. This appeal followed.
The sole question before us is whether the decision of the Department was based upon
substantial evidence. See McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982);
No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 281, 429 P.2d 66, 68 (1967). We
conclude that it was not. From our review of the record, it is clear that Lee's driving habits
were tolerated by the Company and that he would not have been terminated but for the
DMV's erroneous suspension of his driving privileges.
by the Company and that he would not have been terminated but for the DMV's erroneous
suspension of his driving privileges. Because Lee's termination was not precipitated by
misconduct, it follows that NRS 612.385 should not have been applied to deny him
unemployment benefits. Cf. Ortiz v. Unemployment Insurance Appeal Board, 305 A.2d 629,
631 (Del.Super.Ct. 1973) (unless acts are thereafter repeated, employer who condones acts of
misconduct cannot rely on them as basis for discharge), rev'd on other grounds, 317 A.2d 100
(Del. 1974). Accordingly, we reverse the decision of the district court.
____________
101 Nev. 725, 725 (1985) Standen v. State
WARREN ROBERT STANDEN, Appellant, v. THE
No. 16128
December 11, 1985 710 P.2d 718
Appeal from a judgment of murder with the use of a deadly weapon; Second Judicial
District Court, Washoe County, James J. Guinan, Judge.
Defendant who pled guilty to first degree murder appealed from order of the district court
denying post-conviction relief. The Supreme Court, 99 Nev. 76, 657 P.2d 1159, reversed and
remanded for trial. On remand, jury found defendant guilty of first degree murder with a
deadly weapon, and he again appealed. The Supreme Court, held that although trial judge
erred in instructing jury that prior guilty plea which was reversed could be used as part of the
evidence upon which a conviction could be based, error was harmless, given overwhelming
evidence of guilt.
Affirmed.
David G. Parraguirre, Public Defender, Mark L. Mausert, Deputy Public Defender,
Daniel L. McCormick, Deputy Public Defender, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Edwin T.
Basl, Deputy District Attorney, Gary H. Hatlestad, Deputy District Attorney, Reno, for
Respondent.
1. Criminal Law.
A prior guilty plea that has been legally withdrawn or judicially invalidated is deemed never to have
existed and it should not be used as evidence.
2. Criminal Law.
Although trial judge erred in instructing jury that prior guilty plea which was reversed could be used as
part of the evidence in murder trial, error was harmless beyond a reasonable doubt, given overwhelming
evidence of guilt.
OPINION
Per Curiam:
A jury found Warren Robert Standen guilty of first degree murder with a deadly weapon
and sentenced him to life without the possibility of parole. Since the murder was
accomplished with the use of a deadly weapon, the penalty was enhanced and the district
judge sentenced Standen to two consecutive terms of life without the possibility of parole.
Standen challenges his conviction in this appeal. For the reasons set forth below, we affirm.
The Facts
On February 1, 1978, deputies of the Washoe County Sheriff's Office were dispatched to a
location in Sparks on a report of an injured woman. The injured woman was the victim,
Kaylyn Danner. She was deceased. The cause of death was multiple stab wounds and her
throat had been slit. The victim's vehicle was located about one-half hour after the original
dispatch, about two or three miles away from where the victim's body was found.
On February 4, 1978, a sheriff's department explorer located a trucker's log book in a ditch
near where the victim's body was found. The log book contained appellant's name. After the
log book was found, an arrest warrant was issued for Standen for the murder of Kaylyn
Danner. He was apprehended on July 19, 1978, in New York. Extradition proceedings
commenced and Standen was returned to Reno in September of 1978.
Before trial, Standen tried to implicate a former resident of a hospital for the criminally
insane, in Rome, New York. The man Standen sought to implicate met Standen at the State
School in Rome, but had not seen him since.
Evidence from the autopsy on the victim provided fluid samples that matched Standen's
blood type. Further, head and body hair specimens from the crime scene were found to be
consistent and similar to samples provided by Standen.
Additional evidence showed that Standen had been in Reno during the time the homicide
occurred. He had registered at the Holiday Inn on Sixth Street on January 24, 1978 and had
used his own name. Investigation revealed that Standen had been in the casino where the
victim was employed between the hours of 10:30 p.m. and 11:45 p.m. on January 31, 1978.
Employees of the casino testified that appellant was carrying some sort of a dark colored case
in his hand, which was in physical appearance consistent with the log book found at the
location of the body.
colored case in his hand, which was in physical appearance consistent with the log book
found at the location of the body. Within one hour of being last seen at the casino, appellant
was seen at the location where the victim's vehicle was found.
On February 13, 1979 appellant entered a guilty plea to a charge of open murder.
Subsequently, this Court reversed the conviction for first degree murder. Standen v. State, 99
Nev. 76, 657 P.2d 1159 (1983). We there held that Standen's plea was not entered knowingly
or with understanding. Thereafter, an amended information was filed and Standen was
charged with murder with the use of a deadly weapon. Standen pled not guilty to this charge
and a date for trial was set.
Before trial, defense counsel moved to suppress the admission of evidence of Standen's
prior guilty plea. The motion was granted and trial proceeded. During trial, the fact that
appellant had previously pled guilty to the murder of Mrs. Danner came before the jury and
the trial court briefly informed the jury of the procedural history of the case. The court also
formally instructed the jury on the subject of the prior guilty plea.
The jury found appellant guilty of first degree murder with the use of a deadly weapon.
Standen was sentenced to two consecutive terms of life without the possibility of parole.
The Trial
The sole issue raised by Standen on appeal is whether the district court prejudicially erred
in instructing the jury that the prior guilty plea could be used as part of the evidence upon
which a conviction could be based.
We agree that the instruction given by the trial judge was erroneous and was a
misstatement of the law. However, since the evidence of guilt was overwhelming, we
conclude that the error was harmless beyond a reasonable doubt. See Harrington v. California,
395 U.S. 250 (1969).
At trial, the defense relied on a three prong attack. The first prong consisted of an attempt
to implicate a man who could not otherwise be tied to the crime. The second prong consisted
of an attempt to show that the crime required military precision which Standen could not have
exercised due to a diminished mental capacity. The third prong consisted of an attempt to
show dilatory conduct and incompetence on the part of the police and the crime laboratory.
The first prong failed. It was clear that the man implicated by Standen had not committed
the crime. The second argument was equally unsuccessful. Although testimony was offered to
show Standen's diminished mental capacity, the evidence supported the State's theory of the
crime.
The success of defendant's final position depended not only on the actions of the police
investigators and the crime laboratory technicians, but also on the reasonableness and
responsibility of those actions.
the actions of the police investigators and the crime laboratory technicians, but also on the
reasonableness and responsibility of those actions. Defense counsel tried to show improper
conduct on the part of the police investigators and the technicians at the crime laboratory by
inferring that reasonable leads had been dropped, potentially exculpatory evidence had been
carelessly discarded, and the finger of blame had been pointed at Standen with little
evidential support. Defense counsel knew that evidence of the prior guilty plea could not be
admitted in order to explain the appearance of irresponsibility which defense counsel sought
to create concerning the investigators and crime laboratory technicians. Finally, after defense
counsel repeatedly disregarded the court's admonitions and approached this subject, the trial
judge allowed the prosecution to elicit testimony of the prior guilty plea in order to help the
jury understand the reasons why all investigatory activities had ceased and the evidence had
been disposed of in accordance with department policy. So, although the prosecutor initially
exposed the jury to the prior guilty plea, defense counsel effectively caused the revelation
through his persistent attempts to take improper advantage of the court's ruling in limine to
exclude evidence of the guilty plea.
[Headnote 1]
The trial judge then advised counsel that he would give a cautionary instruction at the end
of the trial. Defense counsel asked that the instruction be given immediately. Without further
preparation, the trial judge complied with defendant's request. The instruction the judge then
gave was erroneous. The judge advised the jury that they should base their decision on all the
evidence in the case and that the guilty plea was a part of that evidence. This was error. A
prior guilty plea that has been legally withdrawn or judicially invalidated is deemed never to
have existed and should not be used as evidence. See Kercheval v. United States, 274 U.S.
220, 224 (1927).
[Headnote 2]
We conclude, however, that the erroneous instruction was harmless beyond a reasonable
doubt. Standen was in Reno at the time of the murder, his log book was found near the crime
scene, and the physical evidence from the victim matched samples taken from him.
Co-workers at the casino where the victim worked saw appellant shortly before the victim
disappeared. Finally, Standen was seen where the victim's car was found, looking for his lost
log book. Where there is substantial evidence in the record to support the jury's verdict, the
Court will not disturb the verdict on appeal. See Mercado v. State, 100 Nev. 535, 688 P.2d
305 (1984); Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).
Conclusion
Defendant's persistence in attempting to mislead the jury concerning the State's
investigatory efforts and control invited the introduction of the prior guilty plea. The
revelation of the prior plea was introduced to help the jury better understand the actions of the
police and the crime lab technicians.
The initial instruction given by the trial judge was erroneous, but the evidence against
Standen is substantial. The error is, therefore, harmless beyond a reasonable doubt. Therefore,
the verdict of the trial court is affirmed.
____________
101 Nev. 729, 729 (1985) State Dept. Mtr. Veh. v. Kiffe
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant, v. KARL
H. KIFFE, Respondent.
No. 16169
December 11, 1985 709 P.2d 1017
Appeal from judgment, Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Motorist filed petition for judicial review of a hearing officer's decision revoking his
license for his refusal to submit to evidentiary tests of his blood alcohol content. The district
court reversed, and Department of Motor Vehicles appealed. The Supreme Court held that
motorist's license was properly revoked for having failed to submit to evidentiary tests of his
blood alcohol content after being directed to do so by police officer, where police officer had
reasonable grounds to believe that motorist had been driving his vehicle while under the
influence of intoxicating liquor, based upon another officer's statement to him that other
officer had observed motorist driving his vehicle in an erratic fashion.
Brian McKay, Attorney General, and Paul L. Wilkin, Deputy Attorney General, Carson
City, for Appellant.
John G. Watkins, Las Vegas, for Respondent.
1. Automobiles.
Motorist was entitled to challenge at his license revocation hearing the grounds upon which he was
directed to submit to evidentiary tests of his blood alcohol content. NRS 484.387, subd. 2.
2. Automobiles.
First officer's statement that he had observed motorist driving his vehicle in an erratic fashion was
admissible, pursuant to general exception to hearsay rule, NRS 51.075, subd. 1, in administrative
proceeding reviewing revocation of motorist's license, to show that motorist was
driving vehicle while under influence of intoxicating liquor, where second officer was
dispatched to assist first officer, and motorist's vehicle was parked nearby, with
motorist close to his vehicle, when second officer arrived at parking lot in which first
officer had stopped motorist.
reviewing revocation of motorist's license, to show that motorist was driving vehicle while under influence
of intoxicating liquor, where second officer was dispatched to assist first officer, and motorist's vehicle was
parked nearby, with motorist close to his vehicle, when second officer arrived at parking lot in which first
officer had stopped motorist. NRS 484.383, subd. 1.
3. Automobiles.
First officer's statement to second officer that first officer observed motorist driving his vehicle in an
erratic fashion was of the type commonly relied upon by reasonable and prudent persons in the conduct of
their affairs and, thus, was admissible, pursuant to NRS 233B.123, subd. 1, in administrative proceeding
reviewing revocation of motorist's license, to show that motorist was driving his vehicle while under
influence of intoxicating liquor, where second officer was dispatched to assist first officer, and motorist's
vehicle was parked nearby, with motorist close to his vehicle, when second officer arrived at parking lot in
which first officer had stopped motorist. NRS 484.383, subd. 1.
4. Automobiles.
Motorist's license was properly revoked for having failed to submit to evidentiary tests of his blood
alcohol content after being directed to do so by police officer, where officer had reasonable grounds to
believe that motorist had been driving his vehicle while under the influence of intoxicating liquor, based
upon another officer's statement to him that other officer had observed motorist driving his vehicle in an
erratic fashion. NRS 484.383, subd. 1, 484.384, subd. 1.
5. Automobiles.
District court erred by substituting its judgment for that of hearing officer on question of fact, where
hearing officer's determination was supported by substantial evidence on the record presented. NRS
233B.140, subd. 5.
OPINION
Per Curiam:
This is an appeal from a judgment of the district court reversing the revocation of
respondent's driver's license by the Nevada Department of Motor Vehicles.
On December 17, 1983, Police Officer Wall was dispatched to assist Police Officer Davis.
Upon Officer Wall's arrival at the scene, Officer Davis informed him that he had observed
respondent Kiffe driving his vehicle in an erratic fashion. When Officer Wall arrived at the
scene, however, Kiffe was outside of his vehicle. Officer Wall therefore had no personal
knowledge that Kiffe had been driving a vehicle.
After observing Kiffe and administering the usual field sobriety tests, Officer Wall placed
Kiffe under arrest for driving while intoxicated, pursuant to NRS 484.382(3), and transported
him to the Clark County Jail. Officer Wall then read to Kiffe the Nevada Implied Consent
Law, whereupon Kiffe refused to submit to any evidentiary tests of the alcoholic content of
his blood.1 Consequently, Kiffe's driver's license was seized, and ultimately revoked
pursuant to NRS 4S4.3S5.
evidentiary tests of the alcoholic content of his blood.
1
Consequently, Kiffe's driver's license
was seized, and ultimately revoked pursuant to NRS 484.385. See also NRS 484.384.
Thereafter, Kiffe sought a hearing before the Department of Motor Vehicles pursuant to
NRS 484.387(1), requesting a review of the Department's order of revocation.
2
At the
hearing, the only witness for the Department was Officer Wall. Over Kiffe's objection,
Officer Wall testified as to the aforementioned facts, including the information provided to
him by Officer Davis. Based upon Officer Wall's testimony, the hearing officer affirmed the
revocation of Kiffe's license. The hearing officer found that a police officer had reasonable
grounds to believe [Kiffe] was driving or in actual physical control of a vehicle . . . while
under the influence of intoxicating liquor.
Kiffe then petitioned the district court for judicial review of the hearing officer's decision.
The district court reversed the decision on the ground that the hearsay statements of Officer
Davis, although admissible, were not sufficiently probative to sustain the findings of the
hearing officer. The Department now appeals from the judgment of the district court.
[Headnote 1]
The Department is required by NRS 484.384(1) to revoke the driver's license of any
person who fails to submit to an evidentiary test when directed by a police officer pursuant to
NRS 484.383. Under NRS 484.383(1), a police officer may direct a person to take an
evidentiary test for the purpose of determining the alcohol content of his blood, when the
police officer has "reasonable grounds to believe that the person to be tested was driving
or in actual physical control of a vehicle while under the influence of intoxicating liquor."
____________________

1
1. Except as provided in subsections 4 and 5, any person who drives or is in actual physical control
of a vehicle on a highway or on premises to which the public has access shall be deemed to have given
his consent to an evidentiary test of his blood, urine, breath or other bodily substance for the purpose of
determining the alcoholic content of his blood or the presence of a controlled substance when such a test
is administered at the direction of a police officer having reasonable grounds to believe that the person to
be tested was driving or in actual physical control of a vehicle while under the influence of intoxicating
liquor or a controlled substance.
2. The person to be tested must be informed that his failure to submit to the test will result in the
revocation of his privilege to drive a vehicle.

2
NRS 484.387(1) provides in pertinent part:
At any time while a person is not eligible for a license, permit or privilege to drive following an order
of revocation issued pursuant to NRS 484.385, he may request in writing a hearing by the department to
review the order of revocation, but he is only entitled to one hearing.
reasonable grounds to believe that the person to be tested was driving or in actual physical
control of a vehicle while under the influence of intoxicating liquor. A person whose license
has been revoked may seek a hearing before the Department to review the order of
revocation, but the scope of the hearing must be limited to the issue [of] whether or not the
person failed to submit to a test or had 0.10 percent or more by weight of alcohol in his blood
at the time of the test. NRS 484.387(2). Nevertheless, we recognize, and the Department
acknowledges, that Kiffe was entitled to challenge at his revocation hearing the grounds upon
which he was directed to submit to the test.
The central issue in this appeal is thus whether Officer Wall's testimony, in part consisting
of the hearsay statements made by Officer Davis at the scene, constituted substantial evidence
supporting the hearing officer's determination that Kiffe was properly directed to submit to a
test and refused to do so. Evidence may be admitted [in administrative proceedings], except
where precluded by statute, if it is of a type commonly relied upon by reasonable and prudent
men in the conduct of their affairs, NRS 233B.123(1). Respondent contends that the
statements made by Officer Davis were inadmissible hearsay, and thus were precluded by
statute under NRS 51.065, the statute precluding the admission of hearsay evidence.
[Headnotes 2, 3]
The general exception to the hearsay rule, NRS 51.075(1), provides:
A statement is not excluded by the hearsay rule if its nature and the special
circumstances under which it was made offer assurances of accuracy not likely to be
enhanced by calling the declarant as a witness, even though he is available.
The circumstances under which Officer Davis's statements were made offer assurances of
accuracy not likely to be enhanced by calling him as a witness. Officer Wall was dispatched
to assist Officer Davis. When Officer Wall arrived at the parking lot where Officer Davis had
stopped Kiffe, Kiffe's vehicle was parked nearby. The fact that Officer Wall observed Kiffe
close to his car in a parking lot corroborates the information conveyed to Officer Wall by
Officer Davis. Under these circumstances, Officer Davis's statements were admissible in the
administrative proceeding, pursuant to NRS 51.075(1), for the purpose of showing that Kiffe
was driving a vehicle while under the influence of intoxicating liquor. Cf. Biegler v. Nevada
Real Est. Div., 95 Nev. 691, 601 P.2d 419 (1979) (evidence consisting of hearsay statements
in a letter and in a "statement of fact" prepared for the hearing, could not, without
corroboration, support the suspension of a real estate broker's license).
a letter and in a statement of fact prepared for the hearing, could not, without corroboration,
support the suspension of a real estate broker's license). Furthermore, under these
circumstances, the evidence consisting of Officer Davis's statements is of the type commonly
relied upon by reasonable and prudent persons in the conduct of their affairs. See NRS
233B.123(1).
[Headnotes 4, 5]
Therefore, the hearing officer's determination that Kiffe's license should be revoked was
supported by substantial evidence on the record presented. Consequently, the district court
erred by substituting its judgment for that of the hearing officer on a question of fact. See
NRS 233B.140(5); State Dep't Mtr. Veh. v. Jenkins, 99 Nev. 460, 663 P.2d 1186 (1983).
The Department has also challenged the district court's determination that driving or
being in actual physical control of a vehicle is an element which must be proved at the
hearing before a license may be revoked. The Department contends that it need show only
that a police officer had reasonable grounds to believe that the person to be tested was
driving or in actual physical control of a vehicle, under NRS 484.383(1) (emphasis added).
We have concluded, however, that the testimony of Officer Wall constituted substantial
evidence supporting revocation of Kiffe's license under either standard and, therefore, we
consider it unnecessary to resolve this issue.
Accordingly, we reverse the judgment of the district court and we remand with instructions
that the district court reinstate the decision of the Department's hearing officer.
____________
101 Nev. 733, 733 (1985) Union Plaza Hotel v. Jackson
UNION PLAZA HOTEL, Appellant, v.
ARISTA JACKSON, Respondent.
No. 16396
December 11, 1985 709 P.2d 1020
Appeal from district court's order affirming the decision of an administrative appeals
officer. Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge.
Self-insured employer filed petition for judicial review of order of appeals officer
requiring employer to refer claimant to either of one of two named physicians for a second
rating evaluation. The district court affirmed, and employer appealed. The Supreme Court
held that appeals officer exceeded his jurisdiction by exercising authority specifically
delegated to hearing officer by statute and referring claimant to physician chosen by
appeals officer and, instead, should have referred claimant to appropriate medical board.
and referring claimant to physician chosen by appeals officer and, instead, should have
referred claimant to appropriate medical board.
Jerry Collier Lane, Las Vegas, for Appellant.
King, Clark, Gross & Sutcliffe, Las Vegas, for Respondent.
Fact that appeals officer occupied higher administrative appellate level than hearing officer did not mean
that appeals officer possessed at least the same authority as hearing officer.
2. Statutes.
Provisions contained in one law respecting a certain officer or body may not be applied to another and
different officer or body mentioned in another law, even though laws be in pari materia, and duties imposed
upon such officers be similar in character.
3. Statutes.
Supreme Court is not empowered to go beyond face of statute to lend it a construction contrary to its
clear meaning.
Appeals officer exceeded his jurisdiction by exercising authority specifically delegated to hearing officer
under NRS 616.5416, subd. 3, and referring claimant to physician chosen by appeals officer; instead,
appeals officer should have referred claimant to appropriate medical board in accordance with NRS
616.540.
OPINION
Per Curiam:
Appellant Union Plaza Hotel, a self-insured employer, appeals from an order of the district
court affirming the decision of an appeals officer. For the reasons set forth below, we reverse.
Respondent Arista Jackson injured her back while working for appellant Union Plaza
Hotel on March 14, 1983. During the course of her medical treatment, she was seen by
several doctors and ultimately referred to the Jean Hanna Clark Rehabilitation Center for
physical therapy.
On November 21, 1983, respondent was examined for permanent partial disability by a
rating physician. In his report dated December 8, 1983, the rating physician concluded that
although respondent had demonstrated a loss of range of motion, she had not suffered a
permanent partial disability. The rating physician recommended a zero percent award and
closure of respondent's claim. Union Plaza ratified this determination.
Respondent appealed to a hearing officer who affirmed the closure of her claim with no
award. Respondent then appealed to an appeals officer.
an appeals officer. The appeals officer determined that the rating undertaken by the physician
was not dispositive of the issue of permanent partial disability, and ordered that Union Plaza
refer respondent to either one of two named physicians for a second rating evaluation. Union
Plaza subsequently petitioned the district court for judicial review, and the district court
affirmed the decision of the appeals officer. Union Plaza has appealed, arguing that the
appeals officer exceeded his jurisdiction by ordering that a second rating evaluation be
conducted by either of two physicians named by the appeals officer. We agree.
The power of an appeals officer to order another medical evaluation is limited by NRS
616.540. NRS 616.540 provides in relevant part:
1. If on a claim for compensation by an injured employee any medical question or
the extent of disability of an injured employee is in controversy, an appeals officer or
the insurer may refer the case to the medical board which serves the appropriate
medical board district. (Emphasis added.)
When the situation arises, as it did in the present case, where the appeals officer disagrees
with and rejects the rating physician's conclusions, and the appeals officer determines that the
claimant should be reevaluated, the only alternative available to the appeals officer is set forth
in NRS 616.540.
[Headnotes 1-3]
Respondent points out that NRS 616.5416(3) provides that a hearing officer has the power
to refer a claimant to a physician chosen by the hearing officer in order to resolve a medical
question.
1
Respondent then argues that because an appeals officer occupies a higher
administrative appellate level than a hearing officer, an appeals officer possesses at least the
same authority as a hearing officer. We cannot adopt respondent's assertion. As stated by this
court in V. & T.R.R. Co. v. Ormsby County, 5 Nev. 341, 347 (1870):
There is no rule of construction which will authorize the application of provisions
contained in one law respecting a certain officer or body, to another and different
officer or body mentioned in another law, although the laws be in pari materia, and the
duties imposed upon such officers be similar in character.
____________________

1
NRS 616.5416(3) provides in pertinent part:
If necessary to resolve a medical question concerning an injured employee's condition, the hearing
officer may refer the employee to a physician chosen by the hearing officer. If the medical question
concerns the rating of a permanent disability, the hearing officer may refer the employee to a physician
designated by the administrator.
We are not empowered to go beyond the face of a statute to lend it a construction contrary to
its clear meaning. Cirac v. Lander County, 95 Nev. 723, 729, 602 P.2d 1012, 1016 (1979).
[Headnote 4]
The legislature, by enacting NRS 616.540 and 616.5416(3), expressly provided two
different and distinct grants of authority at two separate administrative appellate levels. The
appeals officer in the present case, therefore, exceeded his jurisdiction by exercising the
authority specifically delegated to the hearing officer and referring the claimant to a physician
chosen by the officer. The appeals officer should have instead referred respondent to the
appropriate medical board in accordance with NRS 616.540.
Accordingly, the order of the district court is reversed and the district court is instructed to
remand the matter to the appeals officer for further proceedings consistent with this opinion.
____________
101 Nev. 736, 736 (1985) Director, State Prison v. Powell
VERNON HOUSEWRIGHT, Director, Nevada State Prison, Appellant, v. KEITH IRVING
POWELL, Respondent.
No. 15264
December 11, 1985 710 P.2d 73
Appeal from order granting post-conviction petition for writ of habeas corpus, First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
Appeal was taken from order of the district court granting defendant's post-conviction
petition for writ of habeas corpus. The Supreme Court held that failure to inform defendant at
time he entered his guilty pleas that his sentences would necessarily be consecutive because
each of the two offenses to which he pled guilty were committed while he was under
sentence of imprisonment did not render defendant's guilty pleas constitutionally infirm.
Brian McKay, Attorney General, and William A. Hehn and Ernest E. Adler, Deputy
Attorneys General, Carson City, for Appellant.
Aebi, FitzSimmons & Lambrose, Carson City, for Respondent.
1. Habeas Corpus.
District court's decision to release inmate was subject to review by Court of Appeals despite
state's failure to file opposition to inmate's habeas corpus petition where decision to
release inmate constituted plain error.
Court of Appeals despite state's failure to file opposition to inmate's habeas corpus petition where decision
to release inmate constituted plain error.
2. Criminal Law.
Failure to inform defendant at time he entered his guilty pleas that his sentences would necessarily be
consecutive under NRS 176.035, subd. 2 because each of the two offenses to which he pled guilty were
committed while he was under sentence of imprisonment did not render defendant's guilty pleas
constitutionally infirm where defendant was fully aware of mandatory sentencing statute prior to time he
was actually sentenced and failed to express any concern over impact of the statute. NRS 34.380.
3. Criminal Law.
Defendant who is subject to mandatory consecutive sentences under NRS 176.035, subd. 2 because
offenses were committed while he was under sentence of imprisonment should be advised of provision at
time he enters his guilty plea.
4. Criminal Law.
Defendant may not stand silent at sentencing when presented with critical information concerning the
sentence, then wait one year, with full knowledge of that information, to raise challenge to voluntariness of
his plea based on alleged lack of knowledge of information at time of plea entry.
OPINION
Per Curiam:
[Headnote 1]
This is an appeal from an order of the district court granting respondent Powell's
post-conviction petition for writ of habeas corpus. Powell's petition challenged two guilty
pleas as constitutionally infirm on the ground that Powell had not been informed at the time
he entered his pleas that his sentences would necessarily be consecutive because each of the
two offenses was committed while Powell was under sentence of imprisonment. See NRS
176.035(2). The district court concluded that the pleas were constitutionally infirm and
permitted Powell to withdraw his pleas. The state then appealed. For the reasons set forth
below, we reverse the district court's order.
1
Powell was originally convicted in 197S of one
count of possession of stolen property and was sentenced to a four year term of
imprisonment.
____________________

1
We note initially that Powell argues that the state should not be permitted to raise any arguments on appeal
against the district court's order granting the writ of habeas corpus, because the state did not file an opposition to
the petition in the court below. As we have previously noted, however, a court should not blindly and
arbitrarily release a prisoner, not entitled to release, because of a late return and answer or even because of [a]
total lack of a return or answer'. Warden v. O'Brian, 93 Nev. 211, 212, 562 P.2d 484, 485 (1977) (quoting
Marshall v. Geer, 344 P.2d 440, 442 (Colo. 1959)). In any event, the district court's decision to release Powell
constituted plain error which is subject to review by this court despite a failure to raise the error in the court
below. See NRS 178.602.
Powell was originally convicted in 1978 of one count of possession of stolen property and
was sentenced to a four year term of imprisonment. While he was free on bail pending the
appeal of this conviction, Powell committed two additional felonies. At the time he pleaded
guilty to these additional crimes, Powell was not informed of the existence of NRS
176.035(2), which provides that [w]henever a person under sentence of imprisonment
commits another crime constituting a felony and is sentenced to another term of
imprisonment for such felony, such latter term shall not begin until the expiration of all prior
terms. Thus, the statute provides for mandatory consecutive sentencing for any felony
committed while under a sentence of imprisonment for a prior felony. Since Powell was
under a sentence of imprisonment when he committed the last two felonies, he was
subsequently sentenced to consecutive sentences on each of those two offenses, to run
consecutively to the sentence Powell was serving for his initial stolen property conviction.
[Headnote 2]
Powell did not appeal from his judgments of conviction in the above two case. Instead he
waited until over one year later to file a post-conviction petition for a writ of habeas corpus in
which he contended that his two guilty pleas were not entered knowingly and intelligently
because he had not been informed that his sentences would necessarily be consecutive. The
district court agreed with Powell's argument and therefore granted the writ.
[Headnote 3]
Initially, we note our agreement with the district court's conclusion that Powell should
have been advised of the mandatory consecutive sentencing provisions of NRS 176.035(2), at
the time he entered his pleas. When accepting a guilty plea, the district court must inform the
defendant of the consequences of the plea, the range of punishments. See Hanley v. State,
97 Nev. 130, 133, 624 P.2d 1387, 1389 (1981). The fact that Powell faced mandatory
consecutive sentences was an important and direct consequence of Powell's pleas and was
critical information which should have been conveyed to him to insure that his pleas were
entered knowingly and intelligently. Cf. Meyer v. State, 95 Nev. 885, 603 P.2d 1066 (1979)
(fact that offense to which defendant was pleading was not probational was critical to
defendant's understanding of the nature of his plea). See also Parkerson v. State, 100 Nev.
222, 678 P.2d 1155 (1984) (defendant must be informed that the state is seeking a finding of
habitual criminality when he enters his plea and must understand possible sentencing
consequences of such a finding).
Our review of the record, however, reveals that Powell waived his right to assert this issue
by not raising it at his subsequent sentencing hearing when he was informed of the
existence of the mandatory sentencing provision.
sentencing hearing when he was informed of the existence of the mandatory sentencing
provision. Specifically, we note that Powell's attorney advised the district court of the
existence of the statute at the sentencing hearing in Powell's presence. Powell's attorney
admitted that the statute required consecutive sentencing as to two of his sentences, but
argued that the statute did not mandate a consecutive sentence as to the remaining offense.
2
The district court expressed its belief that the statute required consecutive sentencing as to all
three offenses, but nevertheless ordered the parties to brief the issue. Powell was then given
an opportunity to speak at the sentencing hearing, but did not express any concern over the
possible application of the statute to his case.
Moreover, the record reveals that the statute's possible application to his case was
discussed in Powell's presence on at least one other occasion in open court; further, Powell
himself admitted at the evidentiary hearing held on his habeas corpus petition that his
attorney had discussed the possible application of the mandatory consecutive sentencing
provision with him prior to the day of the sentencing hearing. Despite the fact that sentencing
was delayed several days after Powell was first informed of the mandatory consecutive
sentencing statute, there is no indication in the record that Powell ever expressed any
misunderstanding or confusion concerning the possible application of the statute to his case,
or that he ever objected to the possibility. Instead, Powell waited until over one year later to
bring the issue to the district court's attention.
[Headnote 4]
Powell was fully aware of the mandatory sentencing statute prior to the time he was
actually sentenced and his failure to express any concern over the impact of the statute
indicates to us that he was fully satisfied with his plea, despite the possible application of the
statute. Naturally, it would have been preferable for the district court to have informed Powell
of the existence of the mandatory sentencing provisions of NRS 176.035(2), when Powell
first entered his plea. In fact, if Powell had filed a motion to withdraw his guilty plea when he
first learned of the existence of this statute, we believe the district court would probably have
been obligated to grant the motion. See generally Hanley v. State, supra. However, we will
not permit a defendant to stand silent at sentencing when presented with critical information
concerning his sentence, and then wait one year, with full knowledge of that information, to
raise a challenge to the voluntariness of his plea based on an alleged lack of knowledge of the
information at the time of the plea entry.
____________________

2
The parties have now agreed that NRS 176.035(2) did indeed require consecutive sentencing for all three
offenses since Powell committed both of the latter two felonies while under a sentence of imprisonment.
time of the plea entry. To do so would make a mockery of our guilty plea system.
Accordingly, we conclude that the district court erred by granting Powell's petition for a
writ of habeas corpus.
3
The district court's order is therefore reversed and this matter is
remanded to the district court for further proceedings consistent with this opinion.
4

____________________

3
We also deny Powell's motion to dismiss this appeal, which was brought on the ground that the state did not
file a timely notice of appeal. The state filed its notice of appeal thirteen days after the district court filed its
order granting Powell's petition, within the fifteen day time period for filing a notice of appeal which existed at
that time. See Jordon v. Director, Dep't of Prisons, 101 Nev. 146, 696 P.2d 998 (1985). We note that NRS
34.380, as amended in 1985, now provides that a party shall have 30 days from the date of service of written
notice of entry of the order within which to file its notice of appeal in a habeas corpus proceeding.

4
The Honorable Justice John Mowbray voluntarily disqualified himself from consideration of this appeal.
____________
101 Nev. 740, 740 (1985) Zirovcic v. Kordic
DUBRAVKO ZIROVCIC, as Vice Counsul of the Socialist Federal Republic of Yugoslavia
in Behalf of the People of the Town of Cerovljani, County of Kostanjnica, Province of
Banija, Yugoslavia, Appellants, v. NIKOLA KORDIC, Executor of the estate of PETER N.
STOYNICH, aka PETER N. STOJNIC, Respondent.
No. 16203
December 11, 1985 709 P.2d 1022
Appeal from declaratory judgment and order construing will; Eighth Judicial District
Court, Clark County; Thomas A. Foley, Judge.
Executor of will filed petition on behalf of decedent's heirs and legatees for construction of
will so as to permit immediate distribution to five legatees named in will. The district court
concluded that the decedent intended his entire estate to be distributed immediately to his five
legatees upon his death. Beneficiary appealed. The Supreme Court held that the trial court
erroneously construed the provisions of the will the way it believed the testator intended, and
not in accord with meaning of words used.
Gladstone & Stark, Frank Sorrentino, for Appellants.
Dickerson, Miles, Pico & Mitchell, Eleissa Lavelle, for Respondent.
1. Wills.
In considering will, primary aim in construing terms of testamentary document must be to give effect, to
extent consistent with law and policy, to intentions of testator.
2. Wills.
In construing will, question before court is not what testator actually intended or what he meant to write;
rather it is confined to determination of meaning of words used by testator.
3. Wills
Trial court erroneously construed provisions of will the way the court believed the testator intended, and
not in accord with the meaning of the words used.
OPINION
Per Curiam:
This appeal involves the construction of the last will and testament of Peter N. Stoynich.
The executor of the will (respondent in this appeal), Nikola Kordic, filed a petition in the
district court on behalf of the decedent's heirs and legatees for construction of the will so as to
permit immediate distribution to five legatees named in the will. Appellant Dubravko
Zirovcic, vice counsul of the Socialist Federal Republic of Yugoslavia filed an opposition to
the petition. Zirovcic is designated as a beneficiary in the will.
The district court considered the will and concluded the decedent intended his entire estate
to be distributed immediately to his five legatees upon his death. Zirovcic appeals from that
decision.
[Headnote 1]
In considering the will, it is the long-accepted position of this court that the primary aim
in construing the terms of a testamentary document must be to give effect, to the extent
consistent with law and policy, to the intentions of the testator. Concannon v. Winship, 94
Nev. 432, 434, 581 P.2d 11, 13 (1978).
[Headnote 2]
Our review of the will reveals that Stoynich's clear intention was to create a trust, have the
trust assets held, invested, and preserved for a period of years or until a certain event
occurred, at which time distribution was to be made in one of two ways, depending on
whether the term of years or the event occurred first. The question before the court is not
what the testator actually intended or what he meant to write. Rather it is confined to a
determination of the meaning of the words used by [the testator]."
testator]. Sharp v. First Nat. Bk., 75 Nev. 355, 360, 343 P.2d 572, 574 (1959) (quoting Jones
v. First Nat. Bank, 72 Nev. 121, 296 P.2d 295 (1956)).
[Headnote 3]
In the present case, the district court construed the provisions of the will the way the court
believed the testator intended, and not in accord with the meaning of the words used.
Accordingly, the judgment is reversed and the case remanded to the district court with
instructions to enter judgment consistent with this opinion.
____________
101 Nev. 742, 742 (1985) Trustees, Carpenters v. Better Building Co.
THE TRUSTEES OF THE CARPENTERS FOR SOUTHERN NEVADA HEALTH AND
WELFARE TRUST; THE TRUSTEES OF THE CONSTRUCTION INDUSTRY AND
CARPENTERS JOINT PENSION TRUST FOR SOUTHERN NEVADA; THE TRUSTEES
OF THE VACATION TRUST CARPENTERS LOCAL NO. 1780 and THE TRUSTEES OF
THE SOUTHERN NEVADA CARPENTERS AND MILLWRIGHTS APPRENTICE
TRAINING TRUST, Appellants and Cross-Respondents, v. BETTER BUILDING
COMPANY, Respondent and Cross-Appellant.
No. 15830
December 12, 1985 710 P.2d 1379
Appeal and cross appeal from a jury verdict and judgment in respondent's favor. Eighth
Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Trustees for various trusts for carpenters brought action against employer to recover
allegedly unpaid contributions. The district court entered judgment on verdict for employer
and trustees appealed. The Supreme Court, Steffen, J., held that: (1) evidence was sufficient
to support finding that tool rental payments were not disguised compensation for work
performed by carpenters and benefit contributions were not owed by employer; (2) evidence
was sufficient to support finding that trustees were not entitled to recover damages for breach
of contract; and (3) employer was not entitled to recovery of attorney's fees on basis that
trustees did not recover more favorable judgment than their offer of judgment under NRCP
68.
Affirmed.
Springer, C. J., dissented.
Lionel Sawyer & Collins and Evan J. Wallach, Las Vegas, for Appellants and
Cross-Respondents.
Robert K. Dorsey, Las Vegas, for Respondent and Cross-Appellant.
1. Evidence.
At trial, proponent of a proposition essentially has two burdens relative to his proof, those being to
produce evidence which proves or tends to prove his position, and to persuade trier of fact that his evidence
is more credible or entitled to the greater weight.
2. Labor Relations.
Evidence was sufficient to support finding that tool rental payments were not disguised compensation for
work performed by carpenters and benefit contributions were not owed by employer to various trusts for
carpenters, where carpenters' wages upon which benefit contributions were made remained the same,
employer merely paid tool rental to carpenters to furnish and transport whatever tools they needed in an
attempt to eliminate loss of tools and lost time resulting from distribution, gathering, maintenance and
repair of tools previously supplied by employer.
3. Labor Relations.
Trustees for various trusts for carpenters were not damaged by breach of contract by employer, where had
contract which forbade employers from making tool rental payments not been breached employer would
have applied tool rental payments towards purchase, maintenance and repair of their own tools and wages
would have remained the same and hence trustees would have not received any additional benefit
payments.
Admission of testimony regarding Internal Revenue Service ruling which accepted employer's tool rental
payments as such in action to recover allegedly unpaid contributions brought by trustees for various trusts
for carpenters against employer was harmless and did not necessitate reversal even if evidence was
properly objected to, where other evidence presented indicated that payments for tool rental were properly
so categorized and were not subterfuge for wages in order to avoid paying benefit contributions to trust
fund, and that employer merely paid tool rental to carpenters to furnish and transport whatever tools they
needed in an attempt to eliminate loss of tools and lost time.
Alleged error of admission of testimony of State Industrial Commission's acceptance of employer's tool
rental payments as such was never objected to at trial in action by trustees for various trusts for carpenters
against employer and would not be considered on appeal.
6. Labor Relations.
Employer was not entitled to attorney's fees in action brought against it by trustees for various trusts were
carpenters on grounds that trustees did not recover more favorable judgment than their offer of judgment
under NRCP 68, where trustees were refused access to general ledger or cash disbursement journal of
employer when employer's books were audited, without access to those records no accurate determination
could be made of whether employer had fully reported and paid benefits on all hours work by its carpenter
employees, and it was not until nine months after Rule 68 offer of judgment was made that documents were
produced.
7. Labor Relations.
Employer was not entitled to an award of attorney's fees under NRS 18.010, subd. 5, in action brought
by trustees for various trusts for carpenters where contract entered into between the parties provided that
trustees were entitled to attorney's fees if they prevailed, not that such fees were permitted to prevailing
party.
8. Costs.
Employer was not entitled to expenses and costs of expert utilized for preparation of defense under NRS
17.115 providing for discretionary award of expert witness fees, where employer's offer of judgment was
tendered expressly pursuant to NRCP 68 and refused offer was necessarily subject to terms under which
it was made, and employer's expert was never sworn and did not testify at trial.
OPINION
Appellants contend the lower court committed reversible error in refusing to grant their
motions for a new trial and judgment notwithstanding the verdict.
[Headnote 1]
At trial, the proponent of a proposition essentially has two burdens relative to his proof.
The first being to produce evidence which proves or tends to prove his position. The second
burden is to persuade the trier of fact that his evidence is more credible or entitled to the
greater weight. See Koesling v. Basamakis, 539 P.2d 1043 (Utah 1975).
Appellants' proposition at trial was that they were entitled to unpaid contributions to the
Employee Benefit Trust Fund for thirteen carpenters employed by Better Building Company
(Better Building) during the audit period. Appellants also asserted that contributions were
owed for tool rental payments to Better Building's employees because allegedly such
payments were actually compensation payable by reason of the employees' work. The jury,
however, was not swayed by appellants' arguments.
[Headnote 2]
An examination of the record reveals that appellants did not meet their burden of proof.
Based upon the evidence presented at trial, the jury could reasonably conclude that
contributions were properly made on behalf of all employed carpenters by Better Building
during the audit period and therefore no contributions were owed for the thirteen questioned
individuals. In addition, the evidence indicates that payments for tool rental were properly so
categorized and were not a subterfuge for wages in order to avoid paying benefit
contributions to the trust fund. The carpenters' wages, upon which benefit contributions were
made, remained the same.
remained the same. Better Building merely paid a tool rental to the carpenters to furnish
and transport whatever tools they needed in an attempt to eliminate the loss of tools and the
lost time resulting from the distribution, gathering, maintenance and repair of the tools
previously supplied by Better Building. The jury's decision that the tool rental payments were
not disguised compensation for work performed is reasonable and fully supported by the
record.
[Headnote 3]
Moreover, the trial court instructed the jury that a non-breaching party to a contract is
entitled to all sums which that party would have received had the contract not been
breached. The appellants' contention that the jury disregarded this instruction is meritless.
Had the contract which forbade employers from making tool rental payments not been
breached, Better Building would have applied the tool rental payments towards the purchase,
maintenance and repair of their own tools, the wages would have remained the same, and the
appellants would not, therefore, have received any additional benefit payments. Appellants
were not damaged by respondent's breach. Also, as discussed earlier, tool rentals were
contractually prohibited because some contractors were using them as a subterfuge to avoid
paying benefits. This is not the case here. The jury properly concluded that appellants were
not entitled to recover damages for breach of contract.
[Headnotes 4, 5]
Appellants also contend that the lower court committed prejudicial error by allowing
respondent to offer testimony as to rulings by the Internal Revenue Service (IRS) and the
Nevada Industrial Commission (NIC) which accepted Better Building's tool rental payments
as such. Our review of the record convinces us that in view of the other evidence presented
concerning the tool rental payments, the admission of the IRS ruling, even if properly
objected to, was harmless and does not necessitate a reversal. See NRCP 61. Testimony
concerning NIC's acceptance was also harmless, but more importantly, was never objected to
at trial. We will not, therefore, consider it on appeal. Old Aztec Mine, Inc. v. Brown, 97 Nev.
49, 623 P.2d 981 (1981).
In Bates v. Chronister, 100 Nev. 675, 691 P.2d 865 (1984), this Court held that:
[A] motion for [JNOV] may be granted only when, without weighing the credibility
of the evidence, there can be but one reasonable conclusion as to the proper judgment.
Where there is conflicting evidence or there is insufficient evidence to make a
one-way verdict proper, [JNOV] should not be awarded.
awarded. In considering the motion, the court must view the evidence in the light most
favorable to the party who secured the jury verdict.
See also, Hernandez v. City of Salt Lake, 100 Nev. 504, 686 P.2d 251 (1984). Viewing the
evidence in the light most favorable to Better Building, the jury could reasonably reach a
verdict contrary to that desired by appellants. Accordingly, the trial court did not err by
denying appellants' motions for new trial and JNOV. Moreover, because there is substantial
evidence to support the jury's decision, we will not disturb it. Udevco, Inc. v. Wagner, 100
Nev. 185, 678 P.2d 679 (1984).
Better Building asserts in its cross appeal that the trial court abused its discretion when it
failed to grant them attorney's fees since appellants did not recover a more favorable
judgment than their Rule 68 offer of judgment.
This Court recently noted in Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983), that the
purpose of Rule 68 is not to force plaintiffs unfairly to forego legitimate claims and that:
In exercising its discretion regarding the allowance of fees and costs under NRCP 68 . .
. the trial court must carefully evaluate the following factors: (1) whether the plaintiff's
claim was brought in good faith; (2) whether the defendants' offer of judgment was
reasonable and in good faith in both its timing and amount; (3) whether the plaintiff's
decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith;
and (4) whether the fees sought by the offeror are reasonable and justified in amount.
[Emphasis added.]
[Headnote 6]
The trustees in this case had a fiduciary duty to collect from signatory employers all
amounts due as contributions to the trust funds for each hour worked by every carpenter
employee. When Better Building's books were audited, appellants were refused access to the
general ledger or cash disbursement journal. Without access to those records, no accurate
determination could be made of whether Better Building had fully reported and paid benefits
on all hours worked by its carpenter employees. It was not until nine months after the Rule 68
offer of judgment was made that such documents were produced. A Rule 68 offer expires ten
days after its tender. Hence, absent the essential documents, it cannot be said appellants'
decision to proceed with litigation was unreasonable or in bad faith. We are convinced the
lower court did not abuse its discretion in refusing to award Better Building attorney's fees.
[Headnote 7]
Better Building also argues that NRS 18.010(5) should be extended to permit them an
award of attorney's fees.
extended to permit them an award of attorney's fees. We disagree. NRS 18.010(2)(c)
specifically precludes Better Building from receiving an award of attorney's fees in this case.
NRS 18.010(5) states that subsection 2 does not apply to any action arising out of a written
instrument or agreement which entitled the prevailing party to an award of reasonable
attorney's fees. In the present case, the contract entered into between the parties provided
that appellants were entitled to attorney's fees if they prevailed, not that such fees were
permitted to the prevailing party. We simply cannot construe that the statutory language as
covering the unilateral provision for fees set forth in the parties' contract. Better Building was
properly refused an award of attorney's fees.
[Headnote 8]
The respondent in this case also appeals to this court, claiming that the lower court abused
its discretion when it did not award Better Building the expenses and costs of their expert
utilized for preparation of their defense. Better Building's rationale is unpersuasive. Although
a Rule 68 offer does not provide for payment of expert witness fees, respondent proposes that
NRS 17.115, which does provide for a discretionary award of expert witness fees, should be
read together with NRCP 68. Better Building cites to Armstrong v. Riggi, 92 Nev. 280, 549
P.2d 753 (1976), for analogous support of this proposition. This Court, however, need not
address this question inasmuch as Better Building's offer of judgment in this case was
tendered expressly pursuant to Rule 68. The refused offer was necessarily subject to the terms
under which it was made.
Moreover, Better Building's expert, Mr. Goodman, was never sworn and did not testify at
trial. Accordingly, the lower court did not abuse its discretion by refusing to award Better
Building expert witness fees. Mays v. Todaro, 97 Nev. 195, 626 P.2d 260 (1981).
Finally, Better Building contends that the trial court erred in refusing to increase its award
of expert witness fees to Richard Strahlem. NRS 18.005(5) makes discretionary an award of
more than $750.00 for an expert witness. Unless the circumstances surrounding the expert's
testimony were of such necessity as to require the larger fee, $750.00 is sufficient. Our
review of the record discloses a lack of such necessity and therefore the lower court did not
abuse its discretion.
We have considered the remaining contentions of error and consider them to be without
merit. Accordingly, we affirm the judgment entered upon the jury verdict.
Mowbray, Gunderson, and Young, JJ., concur.
Springer, C. J., dissenting:
During the course of trial the district court permitted Better Building to introduce
testimony, over objection, that the Internal Revenue Service had accepted Better Building's
tool rental payments as such.
1
Clearly, this second-hand testimony of the Internal Revenue
Service's out-of-court opinion was offered to prove the truth of the matter asserted (that the
tool rental payments were such and not salary as contended by the Trustees). It cannot be
claimed that the testimony was anything other than legally inadmissible hearsay. NRS 51.035;
NRS 51.065; Archibald v. State, 77 Nev. 301, 362 P.2d 721 (1961); United Association of
Journeyman v. Stone, 76 Nev. 189, 351 P.2d 965 (1960); Las Vegas Sun v. Franklin, 74 Nev.
282, 329 P.2d 867 (1958); State v. McKay, 63 Nev. 118, 165 P.2d 389 (1946); Zelavin v.
Tonopah Belmont Dev. Co., 39 Nev. 1, 149 P. 188 (1915); In Re Kelly, 28 Nev. 491, 83 P.
223 (1905); Jones and Colla v. O'Farrel, James and Co., 1 Nev. 354 (1865). This much
appears to be recognized by the majority; however, after conceding the inadmissible nature of
the testimony and timely objection thereto, the majority then declares the error harmless.
2

The majority's resort to the harmless error rule in order to reach its preferred result is an
usurpation of the jury's exclusive role as fact finder. In literally hundreds of cases this court
has held that it is the exclusive province of the jury to serve as finder of fact; however, the
majority opinion seems to ignore that rule and conclusively presumes to find other evidence
to support the verdict. Majority Opinion at 3. That conclusion exceeds our scope of review.
In a civil case the plaintiff must establish his or her case by a preponderance of the
evidence. As stated above, it is exclusively the province of the jury to weigh the evidence and
determine where the preponderance lies. Ewing v. Sargent, 87 Nev. 74, 482 P.2d 819 (1971);
Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967); Barreth v. Reno Bus Lines, 77 Nev.
196, 360 P.2d 1037 (1961). It is hard to conceive that the jury's weighing of the evidence
would not be influenced by testimony that an agency of the federal government had already
found as fact a matter at issue in the instant trial.3
____________________

1
Better Building was also permitted to introduce testimony that the Nevada Industrial Commission had also
accepted that characterization of the payments. Although the majority invokes a procedural bar to consideration
of the admissibility of that testimony, all that follows in this dissent is equally applicable to that testimony.

2
The Trustees objected to this testimony on the grounds that it was hearsay, irrelevant and lacked foundation.
The majority does not seem to deny the presence of those evidentiary faults. The record clearly supports the
merit of all three objections.
the federal government had already found as fact a matter at issue in the instant trial.
3

Just how much the jury was influenced by this testimony is uncertain; it may have
contributed only in a minor way or it may have been the factor that most influenced the jury.
The truth is we don't know where the jury would have found the preponderance of evidence
without this testimony. Regardless, the majority is prepared to state conclusively that it had
no impact whatsoever. Unable to agree with such a conclusion, I dissent.
____________________

3
This conclusion is all the more certain in light of the fact that the Internal Revenue Service, an entity whose
decisions influence affect all Americans, was the agency involved.
____________
101 Nev. 749, 749 (1985) Grayson v. Jones
JOHN WESLEY GRAYSON, Jr., M.D., Individually and as Trustee of the Grayson Trust,
Appellant, v. CLIFFORD A. JONES, HERBERT M. JONES, THOMAS G. BELL, MELVIN
D. CLOSE aka MELVIN D. CLOSE, Jr., and JOSEPH W. BROWN, Respondents.
No. 16140
December 12, 1985 710 P.2d 76
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Richard J.
Legarza, Judge.
Doctor brought action against five directors, officers, shareholders, and employees of
professional legal corporation in the district court seeking to hold the five employees
personally liable for alleged wrongful acts of sixth director, officer, shareholder, and
employee. Trial court granted the five employees' motion for summary judgment. Doctor
appealed. The Supreme Court held that the five employees did not personally participate in
alleged tortious acts of sixth employee and could not be held personally liable for alleged
wrongful acts of sixth employee.
Affirmed.
Johns & Johns, Las Vegas, for Appellant.
Wright, Shinehouse & Stewart, Las Vegas, for Respondents.
1. Corporations.
Member of professional legal corporation is not individually liable for tortious acts of other members of
that professional legal corporation unless he personally participated in those tortious acts. NRS 89.060.
2. Conspiracy.
Five directors, officers, shareholders, and employees of professional legal corporation did not personally
participate in alleged conspiracy by sixth director, officer, shareholder and employee of professional legal
corporation to wrongfully terminate plaintiff's employment with two medical corporations and could not be
held personally liable for any alleged wrongful acts of that sixth employee, where five employees stated
they did not personally participate in sixth employee's representation of medical corporations, and plaintiff
pointed to no specific fact in his affidavits to contradict the five employee's denial of personal involvement.
OPINION
Per Curiam:
This is an appeal from summary judgment entered by the trial court in favor of
respondents, Clifford A. Jones, Herbert M. Jones, Thomas G. Bell, Melvin D. Close, and
Joseph W. Brown. The trial court found that there was no genuine issue of material fact and
that respondents were entitled to judgment as a matter of law. We conclude that the trial court
was correct; accordingly, we affirm the summary judgment.
Respondents are directors, officers, shareholders, and employees of the professional legal
corporation Jones, Jones, Close & Brown, Chartered.
1
Appellant, Dr. Grayson, has alleged
that Gary Goodheart, also a director, officer, shareholder, and employee of Jones, Jones,
Close & Brown, was involved in a conspiracy to wrongfully terminate appellant's
employment with two medical corporations, Associated Pathologists, Chartered (APC) and
International Progress Modalities (IPM). Goodheart was counsel for both APC and IPM
during all times relevant to appellant's complaint. Appellant seeks to hold respondents
personally liable for any wrongful acts of Goodheart.
[Headnote 1]
A member of professional legal corporation in Nevada is not individually liable for the
tortious acts of other members of that professional legal corporation unless he/she personally
participated in those tortious acts. See NRS 89.060.
2
Thus, it is clear that, as a matter of
law, respondents cannot be held individually liable for the alleged tortious acts of
Goodheart unless they personally participated in those acts.
____________________

1
Mr. Bell left the corporation in April, 1984; however, he remains a party to this appeal.

2
NRS 89.060 states in relevant part:
The provisions of this chapter [Chapter 89] relating to professional corporations do not modify any
law applicable to the relationship between a person furnishing professional service and a person receiving
such service, including liability arising out of such professional service; but nothing contained in this
section shall render:
1. A person personally liable in tort for any act in which he has not personally participated. . . .
that, as a matter of law, respondents cannot be held individually liable for the alleged tortious
acts of Goodheart unless they personally participated in those acts.
Respondents are entitled to judgment if there exists no genuine issue as to the fact of their
personal participation in the acts of Goodheart. See Nevada Rule of Civil Procedure 56(c). It
is true that in evaluating the propriety of a grant of summary judgment, we must review the
evidence in the light most favorable to the party against whom summary judgment was
rendered, Servaites v. Lowden, 99 Nev. 240, 244, 660 P.2d 1008 (1983); however, appellant
must allege specific facts showing that there is a genuine issue for trial. Rule 56(3).
(Emphasis added.)
[Headnote 2]
Appellant's affidavits do not allege any facts showing that respondents personally
participated in the alleged tortious acts of Goodheart. Respondents state in their affidavits that
they did not personally participate in Goodheart's representation of the medical corporations.
Appellant points to no specific fact in his affidavits to contradict respondents' denial of
personal involvement. Therefore, we conclude that appellant has not met the burden imposed
on him by Rule 56(e).
Because respondents are entitled to judgment as a matter of law, and appellant showed no
triable issued of fact, we affirm the trial court's grant of summary judgment.
____________
101 Nev. 751, 751 (1985) Wilson v. Circus Circus
GELENA FORD WILSON, Individually and as Natural Mother and Guardian ad litem of
BRADFORD D. WILSON, a Minor, Appellant, v. CIRCUS CIRCUS HOTELS, INC., dba
CIRCUS CIRCUS HOTEL & CASINO, Respondent.
No. 16211
December 12, 1985 710 P.2d 77
Appeal from an order granting respondent's motion for directed verdict. Eighth Judicial
District Court, Clark County; Myron Leavitt, Judge.
Action was brought for damages sustained by two and one-half year old boy who
contracted salmonella bacteria following ingestion of food at hotel restaurant. The district
court entered a directed verdict in favor of hotel, and boy's mother, individually and as natural
mother of boy, appealed. The Supreme Court held that evidence presented jury question as
to whether boy contracted salmonella bacteria from a cup of tartar sauce allegedly left
unrefrigerated in hotel restaurant for too long.
that evidence presented jury question as to whether boy contracted salmonella bacteria from a
cup of tartar sauce allegedly left unrefrigerated in hotel restaurant for too long.
Crockett & Myers and Jonathan C. Reed, Las Vegas, for Appellant.
Edwards, Hunt & Hale and Amy R. Wrobel, Las Vegas, for Respondent.
1. Food.
Generally, mere correlation between ingestion and illness is insufficient as a matter of law to establish
causation.
2. Food.
In absence of direct proof, circumstantial evidence may be used in a food poisoning case to prove the
unwholesomeness or unfitness of food.
3. Food.
Absence of illness in one who has eaten the same food as one who does become ill is circumstantial, but
not controlling, evidence that food was not tainted.
4. Negligence.
Jury's determination of liability is not based on speculation or conjecture simply because there are
multiple possible causes of an incident.
5. Negligence.
Only when causes are equally probable can it be said that a jury's verdict will be based on speculation and
conjecture. NRCP 50(a).
6. Food.
Evidence presented jury question as to whether two and one-half year old boy contracted salmonella
bacteria from a cup of tartar sauce allegedly left unrefrigerated in hotel restaurant too long; evidence
established that boy had become ill within 72 hours following almost exclusive ingestion of restaurant's
food during incubation period for salmonella poisoning, and tended to negate restaurant's theories that
bacteria had been spread by oral/fecal contact by boy touching contaminated object or person or that illness
had been contracted from ingestion of bologna sandwich.
OPINION
Per Curiam:
This is an appeal from a directed verdict for the respondent/defendant (Circus Circus) in a
food poisoning case. The sole issue on appeal is whether the plaintiff presented sufficient
evidence on the element of causation to send the case to the jury. Because the
appellant/plaintiff presented evidence tending to negate other possible causes of the victim's
illness we reverse and remand for a new trial.
On October 17, 1980 two and one-half year old Bradford Wilson {Brad) left Texas with
his family to visit Brad's great uncle in California.
Wilson (Brad) left Texas with his family to visit Brad's great uncle in California. The Wilsons
stopped in Las Vegas, Nevada for a few days before continuing the trip to California. At
approximately 11:00 a.m. on October 18, 1980 the Wilsons checked into the Circus Circus
Hotel and ate at Circus Circus's Pink Pony Restaurant.
Although Brad began to show his first signs of illness around 3:00 p.m. on October 20,
1980, his parents did not become concerned until he developed a fever and diarrhea in the
early morning hours of October 21, 1980. Brad's mother called a doctor who told her Brad's
symptoms were probably caused by a virus and that she should not worry. The Wilsons
checked out of Circus Circus later that morning and decided to visit Caesars Palace before
driving on to California. While at Caesars Palace, Brad complained of stomach pain. His
father noticed that Brad's fever was worse and his stools were black. Brad was taken to the
emergency room at Sunrise Hospital and diagnosed as suffering from hemorrhagic
gastroenteritis caused by salmonella bacteria. Brad was hospitalized for eight days.
Brad's mother testified that Brad had eaten exclusively at Circus Circus's restaurants since
the 11:00 a.m. brunch at the Pink Pony on October 17, 1980. Brad usually ate the child's fish
dish with tartar sauce. No one else in the family ate the fish with tartar sauce during their stay
at Circus Circus. The tartar sauce was served in individual one-ounce cups. The plaintiff
argued at trial that Brad had contracted the salmonella bacteria from one of the cups of tartar
sauce left unrefrigerated for too long.
Dr. Anes, plaintiff's medical expert, testified that there was an 80 percent chance that Brad
was poisoned by food served by Circus Circus if Brad had eaten only at Circus Circus during
the 52 hours before the onset of symptoms. Dr. Anes increased his estimate to 90 percent
assuming that Brad had eaten only chips and cookies after 9:00 p.m. on October 17, 1980.
Medical experts testified that the first symptoms of salmonella poisoning appear 6 to 72 hours
after ingestion of contaminated food or water. Most people become ill within 36 hours of
ingestion.
After both parties had presented their evidence, Circus Circus moved for a directed verdict
pursuant to Nevada Rule of Civil Procedure 50(a). The district court granted the motion,
concluding that the plaintiff had failed to prove as a matter of law that Circus Circus's food
had proximately caused Brad's illness.
Plaintiff contends that the evidence of Brad's illness following ingestion of Circus Circus's
food, coupled with evidence tending to negate other possible causes, constituted sufficient
proof to send the case to the jury. Circus Circus, on the other hand, argues that the evidence
was insufficient as a matter of law because it failed to eliminate other possible sources of
the salmonella bacteria and because there was no proof that the food was outwardly
deleterious.
because it failed to eliminate other possible sources of the salmonella bacteria and because
there was no proof that the food was outwardly deleterious. Because any decision rendered by
the jury would have been based on speculation and conjecture, Circus Circus asserts, the
district court properly removed the case from the jury.
[Headnotes 1, 2]
As a general rule mere correlation between ingestion and illness is insufficient as a matter
of law to establish causation. See, e.g., Minder v. Cielito Lindo Restaurant, 136 Cal.Rptr.
915, 918 (Cal.Ct.App. 1977); Woolworth Company v. Garza, 390 S.W.2d 90, 93
(Tex.Civ.App. 1965). Direct proof of proximate cause in food poisoning cases is often
difficult, however, because the food has been consumed and is often unavailable for scientific
analysis. In the absence of direct proof, therefore, circumstantial evidence may be used to
prove the unwholesomeness or unfitness of food. See Vuletich v. Alivotvodic, 392 N.E.2d
663, 667 (Ill.App.Ct. 1979). However, to be sufficient for that purpose, the circumstantial
evidence must exclude other extrinsic causes of the accident. . . . Id.
Circus Circus suggests that Brad could have contracted the bacteria from (1) his father or
any other salmonella carrier, or (2) from a bologna sandwich Brad ate almost 70 hours before
the onset of symptoms. The plaintiff presented evidence, however, which, if believed by the
jury, would have negated these alternative sources of contamination.
As to the first alternative source, there was evidence presented that Brad's parents
observed proper sanitary precautions when supervising Brad. Brad's mother also testified that
her husband had never been diagnosed a salmonella carrier during recurrent treatment for
diarrhea. Hence the plaintiff presented evidence tending to negate Circus Circus's theory that
the bacteria had been spread by oral/fecal contact, i.e. by Brad touching a contaminated object
or person.
[Headnote 3]
There was also evidence indicating that the bologna sandwich Brad ate for dinner on
October 17, 1980, was not the cause of Brad's illness. Brad's sister also ate a bologna
sandwich for dinner that night made from the same package of bologna as Brad's. Dr. Anes
testified that if two children eat the same food contaminated with salmonella bacteria, both
are likely to become ill if the children are within two years of age of each other. Brad's sister,
who was one and one-half years older than Brad, did not become ill. The absence of illness in
one who has eaten the same food as one who does become ill is circumstantial, but not
controlling, evidence that the food was not tainted.
controlling, evidence that the food was not tainted. See Minder v. Cielito Lindo Restaurant,
136 Cal.Rptr. at 918.
[Headnotes 4, 5]
Drawing all inferences from the evidence in favor of the plaintiff, as we must in reviewing
a directed verdict for the defendant pursuant to Rule 50(a), see Bliss v. DePrang, 81 Nev.
599, 601-02, 407 P.2d 726 (1965), we conclude that the jury could have legitimately found
for the plaintiff if given the opportunity. A jury's determination of liability is not based on
speculation or conjecture simply because there are multiple possible causes of an incident.
See Otis Elevator v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985); Truckee-Carson Irr. Dist. v.
Wyatt, 84 Nev. 662, 448 P.2d 46 (1968), cert. denied, 395 U.S. 910 (1969). Only when the
causes are equally probable can it be said that a jury's verdict will be based on speculation and
conjecture. Wyatt, 84 Nev. at 665.
[Headnote 6]
Upon review of all the evidence presented at trial, we conclude that the three possible
causes of contamination were not equally probable. The evidence of Brad's illness following
the almost exclusive ingestion of Circus Circus's food during the incubation period for
salmonella poisoning, when coupled with evidence negating other possible causes, is
sufficient to send the case to the jury for its evaluation of the evidence. We therefore reverse
the district court's order directing a verdict for Circus Circus and remand for a new trial.
____________
101 Nev. 755, 755 (1985) Manke v. Airport Authority
WILLIAM A. MANKE and LAVON MANKE, Husband and Wife; WILLIAM A. MANKE
and LAVON MANKE as Co-Trustees of the WILLIAM A. MANKE FAMILY TRUST
AGREEMENT, Appellants, v. AIRPORT AUTHORITY OF WASHOE COUNTY, a
Quasi-Municipal Corporation, Respondent.
No. 15800
December 12, 1985 710 P.2d 80
Appeal from a judgment of condemnation and award of damages. Second Judicial District
Court, Washoe County; Richard C. Minor, Judge.
Condemnation action was instituted against vacant, unimproved, commercially zoned real
property. The district court entered a judgment of condemnation and award of damages, and
condemnees appealed.
condemnees appealed. The Supreme Court held that condemnees were entitled to interest
from date of service of summons in action to condemn their vacant and unimproved property,
which was of value primarily for purposes of investment or development.
Digesti & Peck, Reno, for Appellants.
Raggio, Wooster & Lindell, and Richard F. Cornell, Reno, for Respondent.
1. Eminent Domain.
Where condemned property is vacant, unimproved, and of value to condemnee primarily for purposes of
investment or development, a taking occurs on date of service of summons. NRS 37.120, subds. 1, 2.
2. Eminent Domain.
Condemnees were entitled to interest from date of service of summons in action to condemn their vacant
and unimproved property which was of value primarily for purposes of investment or development. NRS
37.120, subds. 1, 2.
3. Eminent Domain.
If condemned property is neither vacant, nor unimproved, nor of value to condemnee for purposes of
investment or development, condemnee is only entitled to interest from date of entry of judgment or, if
condemnor has occupied property of condemnee pursuant to NRS 37.100, permitting occupancy pending
entry of judgment, from date fixed by order on which condemnor was entitled to occupy, until final
judgment is satisfied. NRS 37.120, subds. 1, 2, 37.175, subd. 2.
4. Eminent Domain.
If condemned property is vacant, unimproved, and of value to condemnee primarily for purposes of
investment or development, but condemnee derives some incidental rent, profit, or use from property after
date of service of summons, condemnee remains entitled to interest from date of service of summons;
however, incidental rent, profit, or use value must be deducted from interest to which condemnee is
entitled. NRS 37.120, subds. 1, 2.
OPINION
Per Curiam:
This is an appeal from a judgment of condemnation and award of damages.
Appellants William A. Manke and Lavon Manke were fee simple owners of 4.24 acres of
vacant, unimproved, commercially zoned real property located in Washoe County.
Respondent Airport Authority of Washoe County is a quasi-municipal corporation that owns
and operates the Reno-Cannon International Airport. On February 23, 1983, respondent filed
a condemnation action to acquire appellants' property and served appellants with a
summons in that action.
action to acquire appellants' property and served appellants with a summons in that action.
The case was tried before a jury. The evidence presented at trial established that the
highest and best use of appellants' property was commercial or industrial development. The
evidence also indicated that at the time appellants were served with the summons in the
condemnation action they were in the initial stages of developing a shopping center on their
property. Respondent's expert real estate appraiser testified that appellants' expenditures
towards that end prior to service of the summons increased the fair market value of
appellants' property by $70,000.
The jury returned a verdict in which it found the fair market value of appellants' property
to be $568,100 on the date of the service of summons. The district court subsequently entered
its judgment of condemnation for that amount plus interest from the date of the judgment,
rather than from the date of the service of summons, and costs. Appellants seek modification
of the judgment of condemnation to include interest from the date the summons was served.
They argue that the taking of the property effectively occurred on that date. Because the just
compensation guaranteed condemnees by the fifth amendment of the United States
Constitution
1
and Article I, 8 of the Nevada Constitution
2
includes interest from the date
of the taking, appellants claim that they are entitled to interest from the date of the service of
summons. We agree. We reverse and remand the case to the district court to modify its
judgment of condemnation to include interest from the date of the service of summons.
[Headnote 1]
NRS 37.120(1) provides that, for purposes of compensation and damages, condemned
property is valued as of the date of the service of summons.
3
Any appreciation in the value
of the condemned property after the date of the service of summons accrues to the
condemnor; the investment value of the condemned property is frozen on that date. NRS
37.120(2) also provides that the condemnee is not entitled to any compensation made for
improvements to the condemned property subsequent to the date of the service of
summons.4 Consequently, development of the condemned property after the date of the
service of summons is foreclosed; the "development value" of the condemned property is
"frozen" on that date.
____________________

1
The fifth amendment of the United States Constitution provides: [N]or shall private property be taken for
public use, without just compensation.

2
Article I, 8 of the Nevada Constitution provides: [N]or shall private property be taken for public use
without just compensation having been first made, or secured, except in cases of war, riot, fire, or great public
peril, in which case compensation shall be afterward made.

3
In pertinent part, NRS 37.120(1) provides:
For the purpose of assessing compensation and damages, the right thereto shall be deemed to have
accrued at the date of the service of summons, and its actual value at that date shall be the measure of
compensation for all property to be actually taken. . . .
improvements to the condemned property subsequent to the date of the service of summons.
4
Consequently, development of the condemned property after the date of the service of
summons is foreclosed; the development value of the condemned property is frozen on
that date. Thus, where condemned property is vacant, unimproved, and of value to the
condemnee primarily for purposes of investment or development, NRS 37.120(1) and NRS
37.120(2) operate to destroy the only value such property offers the condemnee on the date of
the service of summons. Consequently, where condemned property is vacant, unimproved,
and of value to the condemnee primarily for purposes of investment or development, as in the
instant case, a taking occurs on the date of the service of summons.
In Stewart & Grindle, Inc. v. State, 542 P.2d 1242 (Alaska 1974), the Alaska Supreme
Court, interpreting an eminent domain statute virtually identical to Nevada's,
5
ruled that
where vacant and unimproved property is condemned a taking occurs at the inception of the
eminent domain proceedings. That court held:
Before the institution of an eminent domain action, possession of unimproved and
untenanted property is a desirable economic asset if: (1) the property may appreciate in
value; and (2) the owner is afforded the opportunity to improve the property toward
whatever end he might desire. (Footnote omitted.) Under the Alaska statutory scheme,
an owner is deprived of both investment potential and the possibility of future
development the moment a condemnation action commences. . . . Meanwhile, the
owner remains liable for property taxes, mortgage payments, and any other expenses
incidental to legal ownership. Indeed, the property is of less value to him in his own
name than it would be had the State taken immediate legal possession under a
declaration of taking, for at least in the latter case he would be delivered from the
burden of the property taxes. . . .
____________________

4
In pertinent part, NRS 37.120(2) provides:
No improvements put upon the property subsequent to the date of service of summons shall be included
in the assessment of compensation or damages, regardless of the date upon which the right to
compensation and damages is deemed to have accrued.

5
In pertinent part, AS 09.55.330 provides:
For the purpose of assessing compensation and damages the right to them accrues at the date of issuance
of the summons, and its actual value at that date is the measure of compensation of the property to be
actually taken. . . . No improvements put upon the property after the date of the service of summons shall
be included in the assessment of compensation or damages.
We conclude that the institution of condemnation proceedings constitutes a
compensable appropriation of vacant and unimproved land. . . .
Id. at 1247-1248.
See State v. Nordstrom, 253 A.2d 163 (N.J. 1969); United States v. 156.81 Acres of Land,
Etc., 671 F.2d 336 (1982). See also Kirby Forest Industries, Inc. v. United States, 467 U.S. 1,
104 S.Ct. 2187, 81 L.Ed.2d 1 (1984).
Our holding that a taking occurred in this case on the date of the service of summons is
buttressed by the fact that the burden placed upon appellants by the service of summons
directly corresponds to a benefit conferred upon respondent, Stewart & Grindle, Inc., 542
P.2d at 1248; Nordstrom, 253 A.2d at 166. Respondent's objective in condemning appellants'
property was to create a clear zone surrounding the airport. Because development of
appellant's property was frozen on the date of the service of summons, respondent's objective
in condemning appellants' property was accomplished on that date.
[Headnotes 2-4]
Since we hold in the instant case that the taking of the property occurred on the date of the
service of the summons, we conclude that the appellants are entitled to interest from that date.
County of Clark v. Alper, 100 Nev. 382, 685 P.2d 943 (1984). See also 3 Nichols on Eminent
Domain 8.03 p. 8-312 (3d ed. 1981).
6

We reserve and remand the case to the district court with instructions to modify its
judgment of condemnation to include interest from the date of service of summons.
____________________

6
If the condemned property is neither vacant, nor unimproved, nor of value to the condemnee for purposes of
investment or development, the condemnee is only entitled to interest pursuant to NRS 37.175(2). A condemnee
is entitled to interest from the date of the service of summons only when the condemned property is vacant,
unimproved, and, thus, of value to the condemnee primarily for purposes of investment or development. Further,
if the condemned property is vacant, unimproved, and of value to the condemnee primarily for purposes of
investment or development, but the condemnee derives some incidental rent, profit, or use value from the
property after the date of the service of summons, the condemnee remains entitled to interest from the date of the
service of summons. However, incidental rent, profit, or use value must be deducted from the interest to which
the condemnee is entitled. Stewart & Grindle, Inc., 542 P.2d at 1248.
____________
101 Nev. 760, 760 (1985) Aswegan v. State
EARL FREDRICK ASWEGAN, Appellant, v.
No. 16270
December 12, 1985 710 P.2d 83
Appeal from denial of petition for post-conviction relief. Second Judicial District Court,
Washoe County; Peter I. Breen, Judge.
Defendant, convicted of sexual assault upon his plea of guilty, appealed from an order of
the district court denying his petition for post-conviction relief. The Supreme Court held that
failure to inform defendant, on the record, that probation was unavailable to one convicted of
sexual assault warranted setting aside sexual assault conviction and allowing defendant to
withdraw guilty plea.
Aebi, FitzSimmons & Lambrose, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City, and Mills Lane, District Attorney, Washoe
Criminal Law.
Failure to inform post-conviction petitioner, on the record, that probation was unavailable to one
convicted of sexual assault warranted setting aside sexual assault conviction and allowing petitioner to
withdraw guilty plea. NRS 176.165.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's petition for
post-conviction relief. Pursuant to a plea bargain, appellant pleaded guilty to four counts of
sexual assault. Appellant argues that his guilty plea was not entered voluntarily and
intelligently because he was not informed, on the record, that probation is not available to one
convicted of sexual assault. Our review of the record supports this contention. Accordingly,
we reverse.
In Meyer v. State, 95 Nev. 885, 603 P.2d 1066 (1979), a case factually indistinguishable
from the instant case, we held that a district court's acceptance of a guilty plea was fatally
defective because the record did not indicate that the defendant in that case had been
informed that probation was not available to one convicted of sexual assault. In so holding,
we stated: Whether or not probation is available is critical to the defendant's
understanding of the consequences of his guilty plea.
101 Nev. 760, 761 (1985) Aswegan v. State
not probation is available is critical to the defendant's understanding of the consequences of
his guilty plea. Therefore, when an offense is not probational [sic], the district judge has a
duty to insure that the record discloses that the defendant is aware of that fact. Id. at 887,
603 P.2d at 1067.
The manifest injustice created by the district court's failure to inform appellant that
probation was not a possibility in his case may be corrected by setting aside the conviction
and allowing appellant to withdraw his guilty plea. See NRS 176.165. Accordingly, the order
of the district court denying appellant's petition for post-conviction relief is reversed and the
case is remanded to the district court for further proceedings. In light of this disposition, we
need not consider appellant's remaining contentions.
____________
101 Nev. 761, 761 (1985) Myatt v. State
WILBERT WINDHAM MYATT, Appellant, v.
No. 15776
December 20, 1985 710 P.2d 720
Appeal from judgment of conviction for conspiracy to commit murder and solicitation to
commit murder. Fifth Judicial District Court, Nye County; William P. Beko, Judge.
Defendant was convicted in the district court of conspiracy to commit murder and
solicitation to commit murder, and he appealed. The Supreme Court held that evidence
independent of the statements of the defendant to a feigned accomplice was insufficient to
corroborate the existence of a conspiracy to commit murder, notwithstanding that the
defendant possessed a photograph of the intended target as well as information concerning
the target's habits and vacation plans, where there was no evidence that the defendant
obtained the information from a third party, or if he did, that the individual from whom he
obtained the information was a co-conspirator rather an innocent third party.
Peter L. Flangas, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; A. D. Demetras, District Attorney, Michael
Golden, Deputy District Attorney, and James C. Martin, Deputy District Attorney, Tonapah,
for Respondent.
101 Nev. 761, 762 (1985) Myatt v. State
1. Conspiracy.
The existence of a conspiracy is not established unless there is independent evidence of an agreement
between two or more persons for an unlawful purpose.
2. Conspiracy.
Particular individual who was a feigned accomplice with defendant in alleged agreement to commit
murder could not be a co-conspirator and, in order to establish existence of conspiracy, it was necessary to
submit proof independent of defendant's own confessions and admissions to establish existence of an
agreement to commit murder with at least one person other than particular individual.
3. Conspiracy.
Evidence independent of the statements of the defendant to a feigned accomplice was insufficient to
corroborate the existence of a conspiracy to commit murder, notwithstanding that the defendant possessed a
photograph of the intended target as well as information concerning the target's habits and vacation plans,
where there was no evidence that the defendant obtained the information from a third party, or if he did,
that the individual from whom he obtained the information was a co-conspirator rather than an innocent
third party.
4. Conspiracy.
Expert's mere conclusion that the address of the intended target on a paper bag given to the feigned
accomplice could have been drafted by somebody other than the defendant did not constitute substantial
evidence independent of the defendant's own statements to establish the existence of a conspiracy to
commit murder.
OPINION
Per Curiam:
A jury convicted appellant of one count each of conspiracy to commit murder and
solicitation to commit murder. The facts in this case are not in dispute. On December 9, 1981,
appellant met with Eric Svenson, who, unbeknownst to appellant, was an informant for the
police. The meeting took place at appellant's residence in Nye County. Svenson carried a
concealed transmitter and the conversation which ensued was recorded and admitted into
evidence at appellant's trial. Appellant told Svenson that a group of doctors in Las Vegas had
been swindled by a person, not then named, and they wanted the individual killed. Appellant
asked Svenson if he would do the killing, and Svenson agreed to do it.
Later on that day, appellant and Svenson met again. Svenson again carried a concealed
transmitter. Svenson agreed to kill the individual for $2,000.00 Appellant gave Svenson a
paper bag, on which were written a name, address and Las Vegas telephone number. The bag
contained a paper napkin with some dates written on it, and a photograph of an individual
named Paul Mold, the intended target.
The following day, appellant and Svenson met for the last time at Svenson's hotel room.
101 Nev. 761, 763 (1985) Myatt v. State
at Svenson's hotel room. At this meeting, Svenson was informed that Paul Mold carried a belt
buckle derringer, went to a health spa every morning and had two reservations to fly to
Switzerland on the 18th and 25th of December. Appellant gave Svenson $1,000.00 as
advance payment for the killing, and Svenson promised to go to Las Vegas that night.
Appellant was arrested when he left the hotel.
[Headnotes 1, 2]
Appellant argues on appeal that the evidence presented at his trial was insufficient to
support his conviction for conspiracy because the only evidence of conspiracy consisted of
the uncorroborated statements of the accused.
1
We agree. A conspiracy is an agreement
between two or more persons for an unlawful purpose. See Sheriff v. Blasko, 98 Nev. 327,
647 P.2d 371 (1982). Svenson was a feigned accomplice; he therefore could not be a
co-conspirator. Johnson v. Sheriff, 91 Nev. 161, 532 P.2d 1037 (1975). Thus, in order to
prove the alleged conspiracy, it was necessary to show that appellant entered into an
agreement with at least one person other than Svenson concerning the killing of Paul Mold.
It is well settled in Nevada that there must be sufficient evidence to establish the corpus
delicti independent of a defendant's own confessions and admissions. Hooker v. Sheriff, 89
Nev. 89, 506 P.2d 1262 (1973). [T]he corroborative evidence need not be sufficient,
independent of the statements, to establish the corpus delicti [but must] tend to establish the
trustworthiness of the statement . . . and provide substantial independent evidence that the
offense has been committed. United States v. Todd, 657 F.2d 212, 216 (8th Cir. 1981),
quoting Opper v. United States, 348 U.S 84 (1954) and Smith v. United States, 348 U.S 147
(1954). Accordingly, to sustain a conviction of conspiracy there must be independent proof of
an agreement among two or more persons. United States v. Todd, at 216.
[Headnote 3]
The appellant's own statements establish an agreement between himself and the doctors
who, appellant indicated, desired to have Mold killed. The state has failed, however, to
present any evidence independent of the statements of the accused, corroborating the
existence of an illegal agreement. The state suggest that the fact that appellant possessed a
photograph of Mold, the intended target, as well as information concerning Mold's habits and
vacation plans, constituted independent evidence that a third party must have been involved
with appellant in a plot to kill Mold.
____________________

1
Appellant also contends that this evidence was insufficient to prove that a conspiracy was committed in Nye
County, as charged in the information. We have not considered this issue, however, because we have determined
that appellant's conviction for conspiracy must be reversed on other grounds.
101 Nev. 761, 764 (1985) Myatt v. State
party must have been involved with appellant in a plot to kill Mold. The record does not
reveal, however, that appellant obtained any of this information about Mold from a third
party. Moreover, even if appellant did obtain information about Mold from another source,
the information could plausibly have been delivered to him by an innocent third party, rather
than by someone conspiring with him. Nor can we conclude, as the state submits we should,
that appellant's apparent lack of a personal motive for killing Mold creates a reasonable
inference that an agreement must have been reached with a third party.
[Headnote 4]
The state also relies on the testimony of a handwriting expert that appellant was not
necessarily the drafter of the address written on the paper bag supplied by appellant to
Svenson.
2
During the course of a defense motion concerning the lack of independent
evidence, the district judge commented in reference to the handwriting expert's testimony:
[T]hat's the only thing I think I can take this on is that would be the only evidence
in the entire record that indicates that others participated in this offense . . . but the only
. . . independent evidence of it is that the handwriting expert neither included or
excluded others or the defendant.
We cannot agree with the district judge, however, that the expert's mere conclusion that the
address could have been drafted by somebody other than appellant constituted substantial
independent evidence that the requisite agreement existed.
We have therefore concluded that the prosecution failed in its burden to prove the
existence of a conspiracy through independent evidence. Indeed, the district judge all but
agreed with the conclusion of this court, when he gave an advisory instruction to the jury
pursuant to NRS 175.381,
3
and when he commented in response to a renewed motion by the
defense to dismiss the conspiracy count:
I might point out this is the first time I think I have given [an advisory instruction]
but I think it is the first time it has been requested where I felt that it was probably
justified because of the fact that theit's very, very skimpy but I'm going to leave it
in for the reason that the lawI'm not taking it out of the hands of the jury. . . .
____________________

2
The handwriting expert testified in regard to the address on the paper bag: I'm inconclusive [sic] as to
whether the particular individual who was investigated [appellant] was the person responsible. He may have
been the writer, somebody else may have been the writer. The handwriting expert also testified that it was
probable that appellant drafted Paul Mold's name on the paper bag, and the writing on the napkin in the bag.

3
NRS 175.381 provides that [i]f, at any time after the evidence on either side is closed, the court deems the
evidence insufficient to warrant a conviction, it may advise the jury to acquit the defendant, but the jury is not
bound by such advice.
101 Nev. 761, 765 (1985) Myatt v. State
been requested where I felt that it was probably justified because of the fact that
theit's very, very skimpy but I'm going to leave it in for the reason that the lawI'm
not taking it out of the hands of the jury. . . .
Where, as here, the evidence is not sufficient to justify a rational jury in finding guilt beyond
a reasonable doubt, a jury's verdict will not be upheld on appeal. See Woodall v. State, 97
Nev. 235, 627 P.2d 402 (1981); Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980); see also
Jackson v. Virginia, 443 U.S. 307 (1979). Appellant's conviction for conspiracy must
therefore be reversed.
Appellant has raised no meritorious challenge to his conviction for solicitation to commit
murder. Accordingly, we hereby affirm that conviction. For the reasons set forth above,
appellant's conviction for conspiracy to commit murder is reversed.
4

____________________

4
The Honorable John C. Mowbray voluntarily disqualified himself from participating in this case.
____________
101 Nev. 765, 765 (1985) Meador v. State
LAURENCE MEADOR, Appellant, v. THE
No. 15934
December 20, 1985 711 P.2d 852
Appeal from judgment of conviction upon jury verdict of seventeen counts of lewdness
with a child under fourteen and six counts of sexual assault of a child under fourteen. Third
Judicial District Court, Churchill County; Mario G. Recanzone, Judge.
Defendant was convicted in the district court of 17 counts of lewdness with a child under
14 and six counts of sexual assault of a child under 14, and he appealed. The Supreme Court
held that: (1) trial court correctly allowed wife of defendant to testify against defendant; (2)
trial court correctly allowed psychiatrist to testify regarding conversations with defendant;
and (3) defendant's conviction on four lewdness counts which were based upon same four
events which supported his conviction on four sexual assault counts was barred by double
jeopardy clause.
Michael F. Mackedon, Fallon, for Appellant.
Brian McKay, Attorney General, Carson City; Michael Dinning, District Attorney, and
Jack Fox, Deputy District Attorney, Churchill County, for Respondent.
1. Witnesses.
Marital privilege under NRS 49.295 could not be invoked by defendant who had physical control over
victims during molestations.
2. Witnesses.
Doctor-patient privilege contained in NRS 49.225 was inapplicable and the trial court correctly
allowed psychiatrist to testify regarding conversations with defendant, where psychiatrist informed
defendant that he was making evaluation at request of Navy, in which defendant was a chief petty officer,
and therefore defendant knew that information would be transmitted to third persons.
A lesser offense is an included offense when the greater offense cannot be committed without committing
the lesser offense.
4. Criminal Law.
Defendant's conviction on four counts of lewdness with a child under 14 which were based upon same
four events which supported conviction on four counts of sexual assault on child under 14 was barred by
double jeopardy clause, U.S.C.A.Const. Amend. 5, where proof of lewd act did not require proof of a fact
distinct from elements of sexual assault, since lewd act necessarily occurs during sexual assault; lewd and
lascivious conduct is a lesser included offense of crimes of sexual penetration; overruling McMichael v.
State, 94 Nev. 184, 577 P.2d 398 (1978).
OPINION
Per Curiam:
Appellant challenges his conviction of seventeen counts of lewdness with a child under
fourteen and six counts of sexual assault of a child under fourteen. We consider three of the
issues raised by appellant in this appeal.
THE FACTS
Appellant, a chief petty officer with the Navy, was stationed at the Naval Air Station in
Fallon where he lived with his wife, Brenda, and two daughters. In September, 1983, while
appellant was having a hernia repaired at an Oakland, California hospital, Mrs. Meador
decided to move out of the couple's bedroom onto the porch. In the course of the move, Mrs.
Meador discovered a collection of pornographic magazines, books and pictures at the bottom
of two dressers. Alarmed at the nature of some of the material, she called her counselor and
subsequently handed the material over to Nevada authorities.
The books, magazines and pictures reflected appellant's sexual obsession with young girls.
The pictures, which appellant admitted taking, were of friends of his then eleven-year-old
daughter and of daughters of other base personnel. Although many of the pictures were
taken while the girls were engaged in everyday activities, they were taken from angles
which focused on the girls' leg, buttock and crotch areas.
pictures were taken while the girls were engaged in everyday activities, they were taken from
angles which focused on the girls' leg, buttock and crotch areas. The sexual interest of the
photographer is obvious from the nature of the photographs. Appellant testified that he never
asked the girls to pose for him and that they were unaware of his prurient interest.
Mrs. Meador testified that she was concerned about her husband's friendship with the girls
because he seemed to prefer their company to that of adults. Appellant took the girls
swimming, horseback riding, to the movies, and encouraged them to spend the night at his
home. During some of these overnight stays, after removing their blankets and moving their
nightgowns above their waists, appellant would take pictures of the girls while they were
asleep. He admitted to pulling down one girl's underpants while she was asleep in order to get
photos of her genitalia.
Although appellant admits to being a pedophile, he insists that he confined his obsession
to taking pictures and using the pictures for fantasies during masturbation. He claims he never
touched the girls in anything but a loving, affectionate manner.
Appellant's older daughter helped the police identify the girls in the pictures. The
subsequent investigation led to appellant's arrest for molesting nine of the girls in his home, at
two public swimming pools, at the movies, and at the May Ranch.
At trial the girls testified that they did not report the incidents or stop visiting the Meador
home because they did not understand what was happening to them and because they were
scared or embarrassed. One of the girls testified that appellant told her she would be in
trouble if she told anyone. Dr. Little, a psychiatrist, testified that the girls' silence was typical
of molested children because children under twelve years of age are not aware of their sexual
identities and are incapable of making abstract judgments. He explained that the girls were
incapable of understanding what was happening to them. The girls ranged in age at the time
of these incidents from eight to twelve years old.
The jury found appellant guilty of seventeen counts of lewdness with a child under
fourteen years of age and six counts of sexual assault of a child under fourteen years of age.
Appellant was sentenced to six life terms for the sexual assaults and ten years for each count
of lewdness. Two of the life sentences were to be served consecutively; the remaining four
life sentences were to be served concurrently with the second consecutive life term. Five of
the ten-year sentences were to be served consecutively with each other and the second
consecutive life term. The remaining twelve ten-year sentences were to run concurrently with
the fifth consecutive ten-year term.
MARITAL PRIVILEGE
[Headnote 1]
Appellant contends that the district court erred in allowing his wife to testify against him
after he invoked the marital privilege. NRS 49.2951 provides in pertinent part:
1. Except as provided in subsections 2 and 3 and NRS 49.305:
(a) A husband cannot be examined as a witness for or against his wife without her
consent, nor a wife for or against her husband without his consent.
(b) Neither a husband nor a wife can be examined, during the marriage or
afterwards, without the consent of the other, as to any communication made by one to
the other during marriage.
2. The provisions of subsection 1 do not apply to a:
. . . .
(e) Criminal proceeding in which one spouse is charged with:
(1) A crime against the person or the property of the other spouse or of a child of
either, or of a child in the custody or control of either, whether such crime was
committed before or during marriage.
(Emphasis added.) The statute plainly provides that the privilege is inapplicable where the
spouse invoking the privilege has been charged with a crime against a child in the custody or
control of either spouse. The record indicates that appellant had physical control over the girls
during the molestations. We conclude that appellant's physical control over the girls at the
time of the molestations satisfies the requirements of the exception to the privilege.
DOCTOR-PATIENT PRIVILEGE
[Headnote 2]
Appellant contends that the district court erred in allowing a psychiatrist to testify to his
conversations with appellant, citing the doctor-patient privilege contained in NRS 49.225.
2
We conclude that the privilege was inapplicable, however, because the psychiatrist, Dr.
____________________

1
NRS 49.295 was amended during the (1985) legislative session. (1985) Nev. Stats. ch. 275, 1, at 842. As
amended, NRS 49.295 permits only the testifying spouse to invoke the privilege. A non-testifying spouse may no
longer invoke the privilege to prevent his or her spouse from testifying against him or her unless the testimony
relates to a communication from one spouse to the other made during the marriage. See NRS 49.295(b).

2
49.225 General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other
person from disclosing confidential communications among himself, his doctor or persons who are participating
in
psychiatrist, Dr. Little, informed appellant that he was making an evaluation at the request of
the Navy. NRS 49.215 defines a confidential communication as one not intended to be
disclosed to third persons. Since appellant knew that Dr. Little was talking to him at the
Navy's request, we conclude that he must have known that the information would be
transmitted to third persons. Therefore the privilege was inapplicable and the admission of
Dr. Little's testimony was proper.
DOUBLE JEOPARDY
Appellant's conviction on four of the lewd act counts (Counts 9, 10, 15 and 14) were based
upon the same four events which supported his conviction on four of the sexual assault
counts (Counts 12, 13, 16 and 18, respectively). Appellant contends that the double jeopardy
clause prohibits his conviction for both a lewd act and a sexual assault when both offenses are
based upon the same event. In other words, appellant argues that lewdness with a child, a
violation of NRS 201.230, is a lesser included offense of sexual assault, a violation of NRS
200.366.
To determine whether appellant's conviction on both offenses is barred by double
jeopardy, we refer to the Blockburger test adopted by this court in Litteral v. State, 97 Nev.
503, 508, 634 P.2d 1226 (1991): [W]here the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other does
not. Blockburger v. United States, 284 U.S. 299, 304 (1932). See also Brown v. Ohio, 432
U.S. 161 (1977) (prosecution for both joyriding and car theft barred because Fifth
Amendment forbids . . . cumulative punishment for a greater and lesser included offense).
By definition, conviction of both an offense and a lesser included offense will always be
impermissible under this test. Givens v. State, 99 Nev. 50, 56, 657 P.2d 97 (1983).
[Headnote 3]
A lesser offense is an included offense when the greater offense cannot be committed
without committing the lesser offense. See Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592
(1966). Appellant argues that a lewd act is necessarily committed each time a sexual assault is
perpetrated; therefore appellant contends that lewd and lascivious conduct is a lesser included
offense of sexual assault.
Respondent argues that lewd and lascivious conduct is not a lesser included offense of
sexual assault by operation of the statute. NRS 201.230(1) provides: Any person who
willfully and lewdly commits any lewd or lascivious act, other than acts constituting the
crime of sexual assault, upon or with the body, or any part or member thereof, of a child
under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust
or passions or sexual desires of that person or of that child, 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.
____________________
the diagnosis or treatment under the direction of the doctor, including members of the patient's family.
Any person who willfully and lewdly commits any lewd or lascivious act, other than
acts constituting the crime of sexual assault, upon or with the body, or any part or
member thereof, of a child under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust or passions or sexual desires of that person or of that
child, 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.
(Emphasis added.) This court previously addressed this issue when the clause other than acts
constituting the crime of sexual assault read other than acts constituting the . . . infamous
crime against nature. See McMichael v. State, 94 Nev. 184, 191, 577 P.2d 398 (1978). In
McMichael we held that a defendant was not entitled to a jury instruction on lewdness with a
child in a prosecution for the infamous crime against nature because lewd and lascivious
conduct is not a lesser included offense of the infamous crime against nature:
NRS 201.230 pertaining to lewdness with a child under 14 years of age states that the
crime is committed by [a]ny person who shall willfully and lewdly commit any lewd
or lascivious act, other than acts constituting the . . . infamous crime against nature,
upon or with the body . . . of a child under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust or passions or sexual desires of such person
or of such child. . . . (Emphasis added.) In Nevada, by definition the acts constituting
the infamous crime against nature do not imply the criminal commission of lewdness
with a child. Such crime must be proved by other acts not amounting to the infamous
crime, and none was proven or, indeed, even suggested. . . .
. . . [Lewd] acts are not . . . necessarily included lesser crimes within the infamous
crime against nature.
Id. at 191-92. Because the primary element of both sexual assault and the infamous crime
against nature is sexual penetration, see NRS 20.366(1) and NRS 201.193, respondent argues
that we must reject appellant's assertion that lewd and lascivious conduct could be inferred
from the mere circumstance of sexual penetration just as we did in McMichael, 94 Nev. at
192. We conclude, however, that McMichael was ill-considered and therefore overrule it to
the extent that it holds that lewd and lascivious conduct is not a lesser included offense of
crimes of sexual penetration.
[Headnote 4]
The Blockburger test was not considered in McMichael because the defendant was
challenging the district court's failure to instruct on the lesser offense; the defendant did
not, and had no reason to, raise a double jeopardy claim.
to instruct on the lesser offense; the defendant did not, and had no reason to, raise a double
jeopardy claim. Blockburger demands that each offense require proof of a fact that the other
does not. Although sexual assault requires proof of an additional fact, i.e. sexual penetration,
that the lewd act offense does not require, the converse is not true. Proof of a lewd act does
not require proof of a fact distinct from the elements of sexual assault since a lewd act
necessarily occurs during the sexual assault. Therefore appellant's conviction on Counts 9, 10,
15 and 14 is barred by the double jeopardy clause. We therefore vacate the four ten-year
sentences imposed by the district court for those counts. See People v. Brown, 320 P.2d 5, 15
(Cal. 1958) (if defendant convicted of two offenses which are actually one, conviction of less
severely punishable offense should be set aside).
CONCLUSION
Appellant's remaining contentions clearly lack merit and do not warrant discussion in this
opinion. Appellant's conviction on Counts 9, 10, 14 and 15 is reversed and the sentences
related to those counts are vacated. The district court's judgment is affirmed in all other
respects.
____________
101 Nev. 771, 771 (1985) Banks v. State
OSSIE LEE BANKS, Appellant, v. THE
No. 16029
December 20, 1985 710 P.2d 723
Appeal from a judgment of conviction of one count each of battery with intent to commit a
crime and sexual assault. Eighth Judicial District Court, Clark County; Miriam Shearing,
Judge.
Defendant was convicted in the district court of battery with intent to commit a crime and
sexual assault, and he appealed. The Supreme Court held that refusal to continue trial for one
day to permit a witness snowbound in Chicago to travel to Nevada was an abuse of
discretion, and abuse was not harmless beyond a reasonable doubt, where witness was the
only person available to corroborate the theory of defense urged by the defendant and, being
corroborative in nature, was material and essential to the defendant.
Morgan D. Harris, Public Defender; Robert D. Larsen, Assistant Public Defender; Robert
L. Miller, Deputy Public Defender, Clark County, for Appellant.
101 Nev. 771, 772 (1985) Banks v. State
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney; James
1. Criminal Law.
Rule requiring trial court faced with a motion for a continuance to consider whether the same facts can be
proven by other witnesses whose attendance might have been obtained [DCR 14, 14, subd. 2(c)]
contemplates not only the existence of witnesses who may testify to the same facts but also their
availability.
2. Criminal Law.
Refusal to continue trial for one day to permit a witness snowbound in Chicago to travel to Nevada was
an abuse of discretion, where witness was the only person available to corroborate the theory of defense
urged by the defendant and, being corroborative in nature, was material and essential to the defendant.
DCR 14, 14, subd. 2(c).
3. Criminal Law.
Testimony which corroborates one party and discredits the other is material and essential where the jury's
determination of guilt or innocence heavily depends upon their assessment of the credibility of the
defendant and the prosecutrix.
4. Criminal Law.
Abuse of discretion in refusing to grant defendant a continuance was not harmless beyond a reasonable
doubt when defendant was deprived of an opportunity to present testimony material to his defense.
OPINION
Per Curiam:
A jury found appellant guilty of one count each of battery with the intent to commit a
crime and sexual assault. Appellant contends on appeal that the district court abused its
discretion in denying appellant's motion to continue the trial for one day to permit a witness
snowbound in Chicago to travel to Nevada. Because we conclude that the witness's testimony
would have been material to appellant's defense, we reverse and remand for a new trial.
Prosecutrix Christy Davis testified that she and appellant had lived together from April,
1983 to August, 1983. In August, appellant moved out of Christy's apartment at her request.
On the morning of October 11, 1983, appellant went to Christy's apartment, which Christy
shared with her nine-year-old son, Symaron, and asked her where she had been the night
before. When Christy replied that she had been out with friends, appellant struck her. Christy
also testified that appellant sexually assaulted her three times that morning.
In between the first and second sexual assaults, appellant ordered Christy to dress Symaron
and send him to school. Christy mouthed the words call the police to Symaron while
helping him dress.
101 Nev. 771, 773 (1985) Banks v. State
helping him dress. Symaron left the apartment and went next door for help. Symaron and the
next-door neighbor walked to a nearby convenience store to call the police. The police did
answer a call regarding a domestic disturbance at Christy's apartment, but they left when no
one answered the door. Christy testified that appellant would not allow her to answer the door
when the police knocked.
Appellant testified to a completely different version of his visit to Christy's apartment on
the morning of October 11, 1983. According to appellant, Christy had confronted him the
night before with a picture of appellant embracing another woman, Jan Vidakovich.
Appellant left the apartment that night and returned the next morning to tell Christy he was
leaving her. Appellant testified that he slapped Christy, causing her to strike her left cheek on
a bedpost, after she kicked him in the groan. Appellant insisted that he and Christy did not
have sexual intercourse, consensual or assaultive, that morning.
At trial appellant's counsel orally moved to continue the trial for one day to permit an
absent witness, Jan Vidakovich, to travel from Chicago, where she was snowbound, to
Nevada. Pursuant to District Court Rule 14, appellant's counsel was sworn and testified that,
if called to the stand, Vidakovich would testify that Christy had seen Vidakovich on previous
occasions, which would have directly contradicted Christy's testimony that she had never seen
Vidakovich before and was not jealous of Vidakovich. Had Vidakovich testified in this
manner, her testimony would have also corroborated appellant's defense theory as explained
below.
1

[Headnote 1]
The decision to grant a continuance is within the discretion of the trial court. Zessman v.
State, 94 Nev. 28, 31, 573 P.2d 1174, 1177 (1978). In exercising its discretion in ruling on a
motion for a continuance, the district court is instructed by Rule 14 to consider whether or
not the same facts can be proven by other witnesses . . . whose attendance . . . might have
been obtained. DCR 14(c). (Emphasis added.) Thus the rule contemplates not only the
existence of witnesses who may testify to the same facts but also their availability.
[Headnote 2]
The district court denied the motion to continue because it believed that Vidakovich's
testimony was not essential to appellant's case and that other witnesses could testify to the
same facts. The record indicates, however, that defense counsel informed the court that he
had been unable to procure other witnesses to testify to the substance of Vidakovich's
testimony. Vidakovich appears to have been the only witness available to testify that
Christy had seen her and that Christy was jealous.
____________________

1
The record also indicates that counsel had exercised due diligence in securing Vidakovich's presence by
making housing and travel arrangements.
101 Nev. 771, 774 (1985) Banks v. State
to have been the only witness available to testify that Christy had seen her and that Christy
was jealous. Thus, we conclude that the district court either misapprehended counsel's
statements or overlooked the relevant considerations outlined in Rule 14.
[Headnote 3]
We further conclude that Vidakovich's testimony was material to appellant's defense.
Appellant theorized that Christy had fabricated the charges against him because she was
jealous of appellant's relationship with Vidakovich. Vidakovich's testimony would have
corroborated appellant's testimony and contradicted Christy's. Where, as here, the jury's
determination of guilt or innocence heavily depends upon their assessment of the credibility
of the defendant and the prosecutrix, testimony which corroborates one party and discredits
the other is material and essential. In a similar case, we approved a magistrate's decision to
grant a one-day continuance where an essential witness was absent because of inclement
weather. See Sheriff v. Smith, 96 Nev. 381, 609 P.2d 1236 (1980).
[Headnote 4]
We conclude that the district court abused its discretion in refusing to grant a continuance.
Because appellant was deprived of the opportunity to present testimony material to his
defense, we cannot say that the abuse was harmless beyond a reasonable doubt. See Zessman
v. State, 94 Nev. at 31, 573 P.2d at 1177. Accordingly, we reverse and remand for a new trial.
2

____________________

2
We need not review appellant's remaining assignment of error since the error is now conceded by
respondent and therefore will not recur upon retrial.
____________
101 Nev. 774, 774 (1985) Balboa Ins. Co. v. Southern Distrib. Corp.
BALBOA INSURANCE COMPANY, Appellant, v. SOUTH-
ERN DISTRIBUTORS CORPORATION, Respondent.
No. 16042
December 20, 1985 710 P.2d 725
Appeal from summary judgment in action by supplier of materials against surety to
recover under contractor's performance bond to pay for materials. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Supplier of materials brought action against surety to recover under contractor's
performance bond. The district court entered summary judgment for supplier, and surety
appealed. The Supreme Court held that supplier of roofing materials on an open account to
contractor for use in various construction projects was a "supplier furnishing materials or
equipment" entitled to benefits of contractor's performance bond, notwithstanding
whether supplier had knowledge of specific construction contracts in which materials
were to be used, where language of bond disclosed a specific intent to cover a failure to
pay a supplier in performance of any construction contract entered into with an owner of
property irrespective of whether supplies were sold on an open account or there was
reference to a specific construction contract.
Supreme Court held that supplier of roofing materials on an open account to contractor for
use in various construction projects was a supplier furnishing materials or equipment
entitled to benefits of contractor's performance bond, notwithstanding whether supplier had
knowledge of specific construction contracts in which materials were to be used, where
language of bond disclosed a specific intent to cover a failure to pay a supplier in
performance of any construction contract entered into with an owner of property irrespective
of whether supplies were sold on an open account or there was reference to a specific
construction contract.
Affirmed.
Fitzgibbons, Cobb & Morrell, Las Vegas, for Appellant.
Mahan & Ellis, Las Vegas, for Respondent.
1. Public Contracts.
Statute requiring that performance bond be obtained by contractor for benefit of any person who as a
supplier or materialman furnished materials or equipment for construction covered by contract [NRS
624.273, 624.273, subd. 1(c)] does not require a supplier to be cognizant of specific contract for which
supplies are to be used.
2. Public Contracts.
Supplier of roofing materials on an open account to contractor for use in various construction projects
was a supplier furnishing materials or equipment under statute [NRS 624.273, 624.273, subd. 1(c)]
and, as such, was entitled to benefits of contractor's performance bond, notwithstanding whether supplier
had knowledge of specific construction contracts in which materials were to be used, where language of
bond disclosed a specific intent to cover a failure to pay a supplier in performance of any construction
contract entered into with an owner of property irrespective of whether supplies were sold on an open
account or there was reference to a specific construction contract.
OPINION
Per Curiam:
Plaintiff-respondent Southern Distributors Corporation sold roofing materials on an open
account to A&S Roofing for use in various construction projects. A&S Roofing failed to pay
respondent for the materials in an amount over $17,000. A&S had previously posted a surety
bond in the amount of $10,000 with the state contractors board as a condition of its being
granted a contractor's license pursuant to NRS 624.270. Appellant Balboa Insurance
Company acted as surety and A&S Roofing was named as principal of the bond. Respondent
filed a complaint to collect the bond for the debt for supplies sold and then moved for
summary judgment.
summary judgment. The district court granted summary judgment in favor of respondent and
this appeal followed.
Appellant contends that because respondent sold supplies on an open account and had
no knowledge of the specific construction contracts in which its materials were to be used,
respondent is not a supplier or materialman furnish[ing] materials or equipment for the
construction covered by the contract for whose benefit the bond affords coverage within the
meaning of NRS 624.273(1)(c).
1
We disagree and affirm the judgment.
[Headnotes 1, 2]
Respondent does not dispute that it was unaware of the structures into which the materials
it sold A&S Roofing were assimilated. However, NRS 624.273(1)(c) does not require a
supplier to be cognizant of the specific contract for which the supplies are to be used.
Moreover, contracts of a compensated surety should be liberally interpreted in the interests of
the beneficiaries rather than strictly in favor of the surety. Zuni Constr. Co. v. Great Am. Ins.
Co., 86 Nev. 364, 468 P.2d 980 (1970). The surety bond contract provides that it concerns the
performance of any construction contract entered into with an owner of property. It then
states that A&S Roofing shall not incur any legal judgments for failure to pay a supplier in
the performance of such a construction contract. The language of the bond contract thus
discloses an intent to cover a failure to pay a supplier in the performance of any construction
contract entered into with an owner of property irrespective of whether the supplies are sold
on an open account or there was reference to a specific construction contract. Homewood
Investment Co. v. Moses, 96 Nev. 326, 608 P.2d 503 (1980), we remanded to the district
court when we determined that a supplier was entitled to a pro rata share of a bond pursuant
to NRS 624.273(1). We see no basis on which to distinguish Homewood because one
condominium construction project was specifically contemplated there at the time the bond
was posted. Appellant cites Day & Night Mfg. v. Fidelity & Cas.
____________________

1
1. Each bond or deposit required by NRS 624.270 must be in favor of the State of Nevada for the
benefit of any person who:
(a) As owner of the property to be improved entered into a construction contract with the contractor
and is damaged by failure of the contractor to perform the contract or to remove liens filed against the
property;
(b) As an employee of the contractor performed labor on or about the site of the construction covered
by the contract;
(c) As a supplier or materialman furnished materials or equipment for the construction covered by
the contract; or
(d) Is injured by any unlawful act or omission of the contractor in the performance of a contract. . . .
(Emphasis supplied.)
Co., 85 Nev. 227, 452 P.2d 906 (1969), which held a supplier of materials was not protected
by a contractor's surety bond. However, Day & Night Mfg. was decided prior to the 1971
amendment to NRS 624.273(1) which enactment added suppliers to those persons in whose
favor the surety bond operates to afford protection. Stats. of Nev. 1971, ch. 264, p. 383-384.
Summary judgment is appropriate where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Zuni Constr. Co. v. Great Am. Ins.
Co., supra, 86 Nev. at 364, 468 P.2d at 980. In light of the liberal construction of surety bond
contracts in favor of beneficiaries, we conclude that a supplier need not be aware of a specific
construction contract for which supplies are furnished in order to be given the benefit of the
protection of NRS 624.273(1). Consequently, appellant's claim is without merit. The district
court did not err in granting summary judgment in respondent's favor.
The judgment is affirmed.
____________
101 Nev. 777, 777 (1985) Lakeside Community Hosp. v. Levenson
LAKESIDE COMMUNITY HOSPITAL, INC., and THE TRUSTEES OF LAKESIDE
COMMUNITY HOSPITAL, in Their Official Capacity and as Individuals: MARGARET W.
MONTGOMERY; JOHN C. ROGERS; EDWARD I. ORLEY; CHESTER S. LATHSHAW;
JAN F. CLARK; JAY JOHNSON; JAMES F. QUINN and DAVID TRUSSELL, Appellants
v. BARRY LEVENSON, M.D., Respondent.
No. 16453
December 20, 1985 710 P.2d 727
Appeal from an order granting a preliminary injunction; Second Judicial District Court,
Washoe County; Robert Schouweiler, Judge.
Physician filed action requesting preliminary injunction against private hospital which
denied him staff privileges. The district court granted preliminary injunction requiring
hospital to grant physician limited staff privileges, and hospital appealed. The Supreme Court
held that district court lacked jurisdiction to review decision of private hospital's board
denying physician staff privileges.
Order reversed; injunction dissolved.
Piscevich & Gallagher, Reno, for Appellants.
101 Nev. 777, 778 (1985) Lakeside Community Hosp. v. Levenson
Lionel, Sawyer & Collins, Dennis L. Kennedy, Las Vegas, for Amicus Nevada Hospital
Association.
Lawrence J. Semenza, Reno, for Respondent.
Hospitals.
Court lacked jurisdiction to review decision of private hospital to appoint or remove members of its
medical staff and therefore could not review denial of physician's application for staff privileges.
OPINION
Per Curiam:
Lakeside Community Hospital, a private hospital, appeals from an order granting a
preliminary injunction requiring the hospital to grant Barry Levenson, M.D., limited staff
privileges, after the hospital board of trustees voted to deny Levenson these privileges.
The threshold issue is whether the courts have power to review the denial of a physician's
application for staff privileges. We hold that the courts do not have this power and dissolve
the preliminary injunction.
The weight of judicial authority in this country denies judicial review of decisions of
governing boards of private hospitals to appoint or remove members of their medical staffs.
The action of hospital trustees in refusing to appoint a physician to its medical or
surgical staff, or declining to renew an appointment that has expired or changing the
requirements for staff privileges, is not subject to judicial review. The action of the
board of trustees is final in such matters. A court may not substitute its judgment for
that of the hospital trustees' judgment.
Kahn v. Suburban Community Hospital, 340 N.E.2d 398 (Ohio 1976) (citation omitted).
Since the district court had no jurisdiction to review the decision of the hospital's board, it
had no power to issue a preliminary injunction in this case. The order granting the injunction
is reversed, and the preliminary injunction is dissolved.
____________
101 Nev. 779, 779 (1985) Sheriff v. Hecht
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
IRA HARVEY HECHT, Respondent.
No. 16622
December 20, 1985 710 P.2d 728
Appeal from order granting a pretrial petition for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Lester H. Berkson, Judge.
Appeal was taken from order of the district court granting respondent's pretrial petition for
a writ of habeas corpus. The Supreme Court held that testimony which was given by
respondent's client at preliminary hearing and which concerned existence of a prior
conviction, the existence of which made the difference between a misdemeanor and a felony,
was material to the issues at the hearing and, when shown to be false and given by client on
advice of respondent, was a proper basis on which to charge respondent with subornation of
perjury.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, and James
Tufteland, Deputy District Attorney, Clark County, for Appellant.
Bernstein & Piazza, Las Vegas, for Respondent.
1. Perjury.
The strength or weakness of the evidence available to disprove the false testimony must not be
considered in determining the materiality of the testimony of a person charged with perjury. NRS
201.220.
2. Perjury.
A false statement made under oath is material and perjurious under statute [NRS 201.220] if it
concerns an issue essential to the decision of the case and could influence the court if believed.
3. Perjury.
Fact that a statement under oath may easily be proved false beyond any doubt does not preclude the
statement from being material and perjurious if it concerns an issue essential to the decision of the case and
could influence the court if believed. NRS 201.220.
4. Perjury.
Testimony which was given by respondent's client at preliminary hearing and which concerned existence
of a prior conviction, the existence of which made the difference between a misdemeanor and a felony, was
material to the issues at the hearing and, when shown to be false and given by client on advice of
respondent, was a proper basis on which to charge respondent with subornation of perjury. NRS
201.220.
OPINION
Per Curiam:
This is an appeal from an order of the district court granting respondent's pretrial petition
for a writ of habeas corpus.
respondent's pretrial petition for a writ of habeas corpus. Because we conclude that the writ of
habeas corpus was improperly granted, we reverse.
Respondent was charged with subornation of perjury in violation of NRS 199.120. The
events leading to the charge were as follows.
Respondent, an attorney, represented a client who had been charged with indecent
exposure. The client was originally charged with a gross misdemeanor. However, when the
district attorney learned that the client had previously been convicted in California of indecent
exposure, the district attorney amended the complaint pursuant to NRS 201.220(1)(b) to
allege a felony.
1

At the client's preliminary hearing, respondent decided that it would be necessary to put
his client on the witness stand. When the client expressed concern about what he should
answer if asked about his prior conviction in California, respondent allegedly advised him:
When the district attorney asks you about your past, tell him you don't remember. The
client subsequently took the witness stand and, when asked by the district attorney whether he
had been convicted of indecent exposure in California, answered that he did not remember.
The district attorney asked numerous questions concerning the California incident. However,
the client continually answered, in essence, that he did not remember. Finally, respondent
objected to the questioning as cumulative and time consuming. The district attorney answered
that he was seeking an admission that the client had been convicted of indecent exposure in
California. Because it was apparent that no admission would be forthcoming, the justice's
court sustained the objection and questioning ceased.
Following the preliminary hearing, the client was concerned because he had lied under
oath. He met with respondent and discussed the matter. Secretly, he recorded the
conversation. After the conversation, the client was dissatisfied with respondent as his
attorney. Therefore, he employed a new attorney to handle his case. When the recording of
the conversation between the client and respondent came to the new attorney's attention, he
instructed the client to turn the recording over to the district attorney. Respondent was
subsequently charged with subornation of perjury, a felony in violation of NRS 199.120.
____________________

1
NRS 201.220 provides in part:
1. Every person who makes any open and indecent or obscene exposure of his person, or of the
person of another, is guilty:
(a) For the first offense, of a gross misdemeanor.
(b) For any subsequent offense, of a felony, and upon conviction shall be punished by imprisonment
in the state prison for not less than 1 year nor more than 6 years, and may be further punished by a fine of
not more than $5,000.
At respondent's preliminary hearing, his former client testified that on respondent's advice,
he had lied under oath. The recording of the conversation between the client and respondent
was also entered into evidence. At the close of the hearing, respondent was bound over for
trial.
Respondent then filed a pretrial petition for a writ of habeas corpus in the district court. In
his petition, respondent first pointed out that NRS 199.120 defines perjury as a false
statement on a material issue made under oath. Respondent then argued that because his
client's testimony was not material to any issue raised at the client's preliminary hearing, his
client did not commit perjury. Respondent reasoned that if there was no perjury, there could
be no subornation of perjury. The district court accepted this argument and granted
respondent's petition for a writ of habeas corpus. This was error.
Testimony at a trial is material if the testimony could have influenced the court on an issue
before the court had its falsity been made known to the court during the trial of the case. See
Taylor v. Sheriff, 85 Nev. 505, 457 P.2d 961 (1969); Ex Parte Sheldon, 44 Nev. 268, 193 P.
967 (1920). Relying on this standard, respondent reasoned that because the state had a
certified copy of the client's California judgment of conviction, the justice's court could not
possibly have been influenced by the client's false testimony that he did not remember having
been convicted in California. Therefore, respondent contended, and the district court agreed,
that the client's testimony was not material, and not perjurious. We disagree with this
application of the materiality standard enunciated above.
[Headnotes 1-3]
In determining the materiality of the testimony of a person charged with perjury, the
strength or weakness of the evidence available to disprove the accused's false testimony must
not be considered. A false statement made under oath is material and perjurious if it concerns
an issue essential to the decision of the case and could influence the court if believed. This is
true even if the statement may easily be proved false beyond any doubt, and thus, in a
practical sense, could not influence the court.
[Headnote 4]
In this case, the testimony claimed to be nonmaterial concerned one of the elements of the
crime charged. Indeed, the testimony concerned the existence of a prior conviction, and the
existence of a prior conviction made the difference between a misdemeanor and a felony. See
NRS 201.220, supra, note 2. An admission from the client would have obviated the necessity
for the state to have presented evidence on this point. Further, if the justice's court had known
that the client was lying, it might have been more inclined not to believe the client's other
testimony.
been more inclined not to believe the client's other testimony. See Ex Parte Sheldon, 44 Nev.
268, 193 p. 967 (1920) (witness' statements were material because they had an impact on his
credibility as a witness). We conclude, therefore, that the testimony of respondent's client was
material to the issues raised at the client's preliminary hearing. It follows that the district court
erred in granting respondent's pretrial petition for a writ of habeas corpus. Accordingly, the
order of the district court granting respondent's pretrial petition for a writ of habeas corpus is
reversed and the case is remanded for further proceedings.
____________
101 Nev. 782, 782 (1985) Gallego v. State
GERALD ARMOND GALLEGO, Appellant, v. THE
No. 15932
December 20, 1985 711 P.2d 856
Appeal from judgment of conviction and sentences of death entered upon jury verdicts for
two counts of murder in the first degree and from consecutive sentences of life without
possibility of parole for two counts of kidnapping in the first degree with substantial bodily
harm. Sixth Judicial District Court, Pershing County; Llewellyn A. Young, Judge.
Defendant was convicted of two counts of first degree murder and two counts of first
degree kidnapping with substantial bodily harm by jury in the district court and sentenced to
death. The Supreme Court held that: (1) denial of change of venue was proper; (2) sufficient
evidence independent of accomplice testimony linked him to offenses charged; (3)
accomplice testimony was not barred by spousal privilege; (4) evidence of uncharged
homicides was properly admitted; and (5) evidence of murders occurring after charged
homicides for which defendant had been previously convicted were properly admitted as
aggravating circumstance under death penalty statute.
Affirmed.
Robert Bork, State Public Defender, Carson City, FitzSimmons, Lambrose & Perkins,
Brian McKay, Attorney General, Carson City, and Richard A. Wagner, District Attorney,
Lovelock, for Respondent.
1. Criminal Law.
Accused is entitled to be fairly tried based on evidence adduced at trial, and that right remains inviolate in
face of apparent guilt, most heinous criminal charges, and less than inspiring station in life.
2. Criminal Law.
Denial of motion for change of venue for trial of defendant convicted of two counts each of first degree
murder and kidnapping was proper, notwithstanding pretrial publicity and rural setting of trial, where
victims were not local girls, many residents of area were opposed to trial situs because of expense to
county, there were no publications of admissions or confessions attributable to defendant, no jurors were
shown to have formed opinion that defendant was guilty, and all indicated they could follow the law and, if
appropriate, return sentences other than death if defendant was found guilty.
3. Criminal Law.
Sufficient evidence independent of testimony of accomplice existed to link defendant to kidnappings and
murders; uncommon variety of macrame rope which matched in all respects rope that bound two victims
was found in defendant's car, burial spot for victims was remote site in desert area at spot shown to be
familiar to defendant, defendant was seen one day following disappearance of victims relatively near
murder site, and evidence of two murders for which defendant had previously been convicted showed
common scheme or plan consistent with kidnappings, sexual molestation and eventual killings of instant
case.
4. Witnesses.
Wife is precluded from testifying for or against her husband without his consent under NRS 49.295,
subd. 1(a).
5. Witnesses.
Testimony of woman who was not lawfully married to defendant did not violate spousal privilege, as
marriage that defendant sought to validate by means of California nunc pro tunc order was void from
beginning as defendant had obtained only interlocutory decree of divorce with respect to earlier California
marriage when marriage to accomplice was performed.
6. Criminal Law.
Introduction of evidence of uncharged homicides for purpose of showing common plan, intent, identity
and motive, was proper where uncharged homicides were not remote in time from killings considered,
substantial similarities were shown to exist in plan and intent, and probative value of evidence outweighed
prejudice to defendant. NRS 48.035, subd. 1.
7. Criminal Law.
Jury instruction regarding executive clemency which did not inform jury that clemency was available to
defendant sentenced to term of life without possibility of parole did not contravene constitutional
standards.
8. Criminal Law.
Jury instruction regarding sentencing for first degree murder as it related to death penalty in which death
penalty was removed from sentencing options upon defendant's showing that mitigating circumstances
revealed by evidence outweighed aggravating circumstances proved by State, did not unconstitutionally
shift burden to defendant to prove that mitigating circumstances outweighed aggravating circumstances.
NRS 175.554, subds. 2, 3.
9. Homicide.
Properly qualified evidence of uncharged homicides allegedly committed by defendant was highly
relevant to meaningful consideration of defendant's death worthiness, as evidence of defendant's character,
rather than as aggravating circumstance.
10. Homicide.
Evidence of murder for which defendant had previously been convicted was admissible as
aggravating circumstance under death penalty statute, NRS 200.033 subd.
convicted was admissible as aggravating circumstance under death penalty statute, NRS 200.033 subd.
2, notwithstanding fact that defendant murdered those two victims after deaths of two victims for whose
murders defendant was being sentenced.
OPINION
Per Curiam:
Two young women, Stacey Redican and Karen Twiggs, disappeared from a shopping mall
in Sacramento, California, on April 24, 1980. Their brutalized bodies were discovered on July
27, 1980 in shallow graves in remote Limerick Canyon, Nevada. The hands of both girls were
trussed with an uncommon variety of macrame rope. An autopsy revealed that both victims
suffered violent deaths caused by multiple blows to the head with a hammer or hammer-like
object.
According to the State's primary witness, Charlene Williams (aka Charlene Gallego),
defendant had her entice the two victims into into a van where they were forcibly confined,
sexually molested by Gallego and ultimately transported to the place of their destruction. The
gravamen of Charlene's testimony was that Gallego again transmogrified his sex slave
fantasy into an intense, morbid reality. During the course of trial, evidence was adduced
concerning similar conduct by Gallego in the earlier killing of two young women kidnapped
from another shopping mall in the Sacramento area. The latter victims were felled by a
number of bullets to the head, whereas Stacey and Karen had been viciously bludgeoned to
death by a hammer that Gallego had purchased enroute to the fatal destination in Limerick
Canyon.
The jury found Gallego guilty of two counts of murder in the first degree and two counts
of kidnapping in the first degree with substantial bodily harm. Gallego was sentenced to death
for Stacey and Karen's murder and received two consecutive sentences of life without the
possibility of parole for the kidnapping counts. Having determined that no prejudicial error
occurred in Gallego's trial, we affirm the convictions and sentences without exception.
ISSUES ON APPEAL
Gallego raises twenty-one issues on appeal, a number of which we need not consider.
Suffice it to say that the trial as a whole produced fairness to the defendant both in the guilt
and penalty phases.
I. The Guilt Phase
A.
Change of Venue
[Headnote 1]
An accused is entitled to be fairly tried based upon evidence adduced at trial, and that
right remains inviolate in the face of apparent guilt, the most heinous criminal charges
and a less than inspiring station in life.
adduced at trial, and that right remains inviolate in the face of apparent guilt, the most
heinous criminal charges and a less than inspiring station in life. Irvin v. Dowd, 366 U.S 717
(1961). Gallego contends that his due process right to fundamental fairness was emasculated
beyond redemption by the inflammatory nature of the pretrial news coverage and the rural
setting of the trial in Pershing County. Unquestionably, the combination of inflammatory
pretrial publicity and a sparse population could produce an ambiance so fraught with
prejudice that a fair trial would be unattainable. However, viewed within the context of the
instant case, we have concluded that the confluence of the aforementioned concerns did not
deprive Gallego of a fair trial.
It is true, as appellant emphasizes, that the local weekly newspaper of general circulation,
the Lovelock Review-Miner, published a number of derisive articles about Gallego.
1
The
Nevada news media throughout the State provided extensive pretrial coverage of the Gallego
prosecution, including its sensational aspects. It may thus be fairly assumed that no
geographical area within the State of Nevada having facilities available to accommodate
defendant's trial would have been insulated from pre-trial publicity. It is equally clear that a
change of venue would have intensified the media coverage accessible to residents of the area
of the new trial site. Of paramount concern, then, is whether, in spite of the coverage, Gallego
was accorded his constitutional right to a fair trial by a panel of qualified, impartial jurors.
Given the realities of our age, it is unlikely that a high-profile criminal defendant will be
presented with a venire of uninformed individuals from which to select a jury. Indeed, it is
conceded by many jurists that such a panel would least likely provide the considered,
enlightened judgment that can best serve the demands of trial. As a result, courts abide by the
following standards:
To hold that the mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut the presumption of a
prospective juror's impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and render a verdict
based on the evidence presented in court.
____________________

1
Indeed, front-page articles referred to Gallego in terms of a sex slayer, convicted killer, accused sex slayer
or condemned sex slayer. Telecasts received in the Lovelock area from Reno also made reference to Gallego's
sex-slave fantasy. Several articles in the Lovelock Review-Miner focused on the cost of the trial to Pershing
County. Other comments related to trial donations made by interested parties from California, e.g., Here's five
bucks to help you on the Gallego trial costs. Hang the bastard! Reference was also made to California sources
who decried California's infirmity in capital cases as opposed to a perceived willingness in Nevada to do it
right.
opinion and render a verdict based on the evidence presented in court.
Murphy v. Florida, 421 U.S. 794 (1975), quoting Irvin v. Dowd, supra at 723. See also
Kaplan v. State, 96 Nev. 798, 618 P.2d 354 (1980). In analyzing the constitutional adequacy
of Gallego's jury, it should be noted that not all of the circumstances contributing to the
pre-trial atmosphere were adverse to Gallego. Importantly, the victims were not local girls.
Moreover, it was evident that many residents of Pershing County were opposed to the trial
situs because of the expense to the County. Finally, there were no publications of admissions
or confessions attributable to Gallego.
[Headnote 2]
Seven of the jurors were passed for cause by defendant. None of the jurors were shown to
have formed the opinion that Gallego was guilty of the crimes with which he had been
charged. All of the jurors selected indicated they could follow the law, and, if appropriate,
return a sentence other than death if they found Gallego guilty. Gallego nevertheless contends
that expressions of impartiality and commitment to decide the guilt or innocence of the
defendant solely on the trial evidence were the conditioned responses to the admonitions of
the trial judge. We do not agree. Although it is impossible to divine the true mind-set of any
prospective juror, we are convinced from the record that the process of jury selection in the
instant case yielded a jury panel committed to constitutional behavior.
2
The trial court did
not err in rejecting Gallego's motion for a change of venue.
In reviewing the record, we are likewise convinced that defendant's subsidiary contentions
concerning the trial court's rulings in: (1) defendant's challenges for cause; (2) refusing to
grant defendant peremptory challenges in excess of the number provided by statute; (3)
refusing to exclude the press and public from the voir dire of the venire; and (4) denying
defendant's motion to sequester the jury during trial are all without merit. We likewise
conclude that the trial judge did not commit error in addressing the venire concerning the
duties of a juror.
B.
Testimony of Charlene Williams aka Charlene Gallego
Gallego contends that the lower court erred in permitting Charlene Williams, aka Charlene
Gallego, to testify as an accomplice to Gallego's crimes. Prior to Gallego's trial, Charlene had
entered a guilty plea to two counts of second degree murder in the deaths of Karen and
Stacey and had been sentenced in connection therewith.
____________________

2
The degree of pre-trial publicity exposure among the jurors varied from superficial to reasonably detailed.
Several of the jurors were aware of the defendant's prior homicide convictions in California. In each instance,
however, the juror evinced a non-judgmental attitude and an understanding willingness to determine Gallego's
guilt or innocence solely upon the evidence adduced at trial.
entered a guilty plea to two counts of second degree murder in the deaths of Karen and Stacey
and had been sentenced in connection therewith. Charlene testified at trial that she had
directly participated in the kidnapping and asportation of the two victims, knowing they
would be killed. Under Nevada laws, NRS 175.291,
3
the evidence against Gallego must be
analyzed independent of Charlene's testimony in order to ascertain whether sufficient
evidence otherwise exists tending to connect Gallego to the commission of the crimes.
Defendant argues that no evidence independent of the accomplice testimony exists to link
him to the two offenses charged. We disagree.
[Headnote 3]
During the course of the trial, the State produced corroborative evidence that, in
cumulative effect, sufficiently connected Gallego to the two murders. An uncommon variety
of macrame rope was found in the trunk of Gallego's Triumph 1500 automobile that matched
in all respects the rope that bound the two victims. The State also introduced a photograph
taken of Gallego and certain friends several years before the killings at the identical site
where the victims were found. The burial place for the two young women was a remote site in
a vast desert area, a spot shown to be familiar to Gallego. Additionally, the State proved that
the defendant was in Nevada at Lake Tahoe one day following the disappearance of the
victims. Finally, evidence of the murders of Kippie Vaught and Rhonda Scheffler showed a
common scheme or plan consistent with the kidnappings, sexual molestation and eventual
killings in the instant case. The cumulative impact of the aforementioned corroborative
evidence was sufficient to tie Gallego to the commission of the homicides without resort to
Charlene's testimony. Accordingly, the trial court did not err in its ruling on this issue.
[Headnote 4]
Gallego nevertheless contends that Charlene should not have been allowed to testify in any
event because of the spousal privilege. This issue is also without merit. Unlike California,
where the spousal privilege belongs to and may be waived by the witness, People v.
Lankford, 127 Cal.Rptr. 408 (C.App.3d 1976), the Nevada evidence code precludes a wife
from testifying for or against her husband without his consent.
____________________

3
NRS 175.291 reads as follows:
1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other
evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the
defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely
shows the commission of the offense or the circumstances thereof.
2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense
charged against the defendant on trial in the cause in which the testimony of the accomplice is given.
1976), the Nevada evidence code precludes a wife from testifying for or against her husband
without his consent. NRS 49.295(1)(a). Therefore, if Charlene and Gallego were lawfully
married, her testimony against Gallego would have violated the spousal privilege.
[Headnote 5]
The validity of the marriage Gallego seeks to invoke depends upon the effect of a
California nunc pro tunc order entered approximately eighteen years after a 1964 Nevada
marriage that was void ab initio under the laws of this State. Gallego contends that the
aforesaid order reinstates a 1966 marriage which was otherwise void under Nevada law
because the marriage was performed in Nevada at a time when only an interlocutory decree
of divorce had been obtained with respect to Gallego's earlier California marriage. If
Gallego's theory were correct, it would render two subsequent marriages (one of which was
never terminated by divorce) void and a third marriage and divorce valid, thereby making his
1978 marriage to Charlene in Reno, Nevada, valid and subsisting at the time of trial. Gallego,
who sought and obtained the California nunc pro tunc order in an attempt to successfully
invoke the spousal privilege, was never lawfully wedded to Charlene. NRS 125.290 specifies
that all marriages solemnized within this State wherein either of the parties have a husband or
wife then living are void. Since the marriage that Gallego sought to validate by means of the
nunc pro tunc order was void from the beginning, there was no marriage concerning which
the California order could operate to save. Charlene's testimony did not violate the spousal
privilege.
C.
Evidence of Uncharged Homicides
At trial, the State was permitted to introduce evidence of the September 11, 1978
Sacramento homicides of Kippie Vaught and Rhonda Scheffler. Purposes for which the
evidence was admitted included common plan, intent, identity and motive, all exceptions to
the Nevada evidence code prohibiting evidence of prior misconduct in order to show that the
defendant acted in conformity therewith.
4
In prosecuting Gallego, the State theorized, as
revealed by Charlene's testimony, that Gallego had been motivated by a sex slave fantasy
that he had articulated to Charlene, to kidnap, sexually assault and ultimately murder
youthful female targets.
____________________

4
NRS 48.045 (2) provides:
accident.
revealed by Charlene's testimony, that Gallego had been motivated by a sex slave fantasy that
he had articulated to Charlene, to kidnap, sexually assault and ultimately murder youthful
female targets.
[Headnote 6]
The trial court did not err in permitting evidence of the prior killings to be introduced at
trial. The homicides involving Kippie Vaught and Rhonda Scheffler were not remote in time
from the killings here considered, substantial similarities were shown to exist in plan and
intent, and the probative value of the evidence outweighed prejudice to the defendant. See
NRS 48.035(1). The lower court so held, and we will not interfere with a discretionary ruling
of the district court absent a showing that the ruling was manifestly wrong. See Brown v.
State, 81 Nev. 397, 404 P.2d 428 (1965). Finally, evidence of the Vaught and Scheffler
homicides satisfied the plain, clear and convincing standard required for its admissibility.
See Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966).
II. The Penalty Phase
A.
Executive Clemency
[Headnote 7]
Gallego contends that the jury was given a misleading instruction concerning executive
clemency that offends due process. Defendant argues that the instruction invites
speculation, diminishes the jurors' individual and collective sense of responsibility and,
most important, misleads in not informing the jury that clemency is available to a defendant
sentenced to a term of life without the possibility of parole. We do not agree. The identical
instruction at issue here was given in Rogers v. State, 101 Nev. 457, 705 P.2d 664 (1985),
and we there determined that the instruction did not contravene constitutional standards.
Constraints applicable to clemency instructions by reason of our holding in Petrocelli v. State,
101 Nev. 46, 692 P.2d 503 (1985), are of prospective effect and thus do not apply here. The
trial court did not err on this issue.
B.
Burden of Proof
[Headnote 8]
Gallego argues, as did the defendant in Ybarra v. State, 100 Nev. 167, 679 P.2d 797
(1984), that a jury instruction based upon NRS 200.030{4)5 unconstitutionally shifts the
burden to the defendant to prove that mitigating circumstances outweigh aggravating
circumstances.
NRS 200.030(4)
5
unconstitutionally shifts the burden to the defendant to prove that
mitigating circumstances outweigh aggravating circumstances. We again conclude that this
contention is without merit. Under Nevada's sentencing apparatus, the State is first required to
prove one or more aggravating circumstances beyond a reasonable doubt. Thereafter, the
defendant may show that the mitigating circumstances revealed by the evidence outweigh the
aggravating circumstances proved by the State. Upon such a showing, the death penalty is no
longer among the sentencing options. See NRS 175.554(2) and (3). As we held in Ybarra,
supra, Nevada's statutory sentencing scheme, as it relates to the death penalty, supplies
sufficient guarantees against the arbitrary and capricious imposition of the ultimate penalty to
pass constitutional scrutiny. The trial court did not commit error in instructing the jury on this
subject.
C.
Evidence of Uncharged Homicides
As noted previously, evidence of the prior, uncharged homicides of Kippie Vaught and
Rhonda Scheffler was properly admitted during the State's case-in-chief for the limited
purposes specified in NRS 48.045. During the penalty phase of Gallego's trial, the district
court instructed the jury on the use of the evidence of these two killings as follows:
You are instructed that with regard to evidence presented during the main trial or guilt
phase in this matter, certain evidence was presented concerning the murders of Kippie
Vaught and Rhonda Scheffler, which evidence was admitted at that time for limited
purposes as previously explained to you.
You may consider such evidence as bearing upon the defendant's character if you find
that the Plaintiff has proved that matter beyond a reasonable doubt. That evidence,
however, shall not be considered aggravating circumstance.
Gallego suggests that jury consideration of non-aggravating factors of the nature and
severity of these uncharged homicides, attenuates the intendment of Furman v. Georgia,
40S U.S. 23S {1972), to channel the discretion of the sentencing authority so as to avoid
an arbitrary and capricious imposition of the death penalty.
____________________

5
circumstances.
(b) Otherwise, by imprisonment in the state prison for life with or without possibility of parole. If the
penalty is fixed at life imprisonment with possibility of parole, eligibility for parole begins when a
minimum of 10 years has been served.
attenuates the intendment of Furman v. Georgia, 408 U.S. 238 (1972), to channel the
discretion of the sentencing authority so as to avoid an arbitrary and capricious imposition of
the death penalty. Additionally, it is argued that the interjection of such evidence fails to serve
the necessary function of narrowing the class of persons against whom the death penalty may
be invoked. We reject both contentions. The clearly defined, statutorily required, aggravating
circumstances that must be found to exist beyond a reasonable doubt serve to narrow and
confine the class of persons against whom the death penalty may apply. Individuals who are
identified as potential recipients of the death penalty because of conduct statutorily defined as
an aggravating circumstance must then be scrutinized according to their individual
characteristics. This process is facilitated by consideration of mitigating circumstances and
other reliable factors relevant to the life of the defendant as a whole person. Only then may a
sentencing authority render an informed judgment based upon the crime and the defendant
who committed it.
If the death penalty option survives the balancing of aggravating and mitigating
circumstances, Nevada law permits consideration by the sentencing panel of other evidence
relevant to sentence. NRS 175.552. Whether such additional evidence will be admitted is a
determination reposited in the sound discretion of the trial judge.
[Headnote 9]
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. Contrary
to defendant's assertions, evidence of the two uncharged homicides furthered the objective of
seeking death penalty evaluation under a process of enlightenment that tends to suppress
arbitrariness and caprice as vehicles of decision. The United States Supreme Court, in Barclay
v. Flordia, 463 U.S. 939 (1983), declared:
In returning a conviction, the jury must satisfy itself that the necessary elements of
the particular crime have been proved beyond a reasonable doubt. In fixing a penalty,
however, there is no similar central issue from which the jury's attention may be
diverted. Once the jury finds that the defendant falls within the legislatively defined
category of persons eligible for the death penalty, as did respondent's jury in
determining the truth of the alleged special circumstances, the jury then is free to
consider a myriad of factors to determine whether or not death is the appropriate
punishment.
jury in determining the truth of the alleged special circumstances, the jury then is free to
consider a myriad of factors to determine whether or not death is the appropriate
punishment.
Id. at 950, quoting California v. Ramos, 463 U.S. 992 at 1008 (1983). The trial court
committed no error on this issue.
D.
Evidence of Murders Occurring After the Instant Homicides
for Which Gallego Had Been Previously Convicted.
Gallego objected to the admission of two murder convictions occurring in Contra Costa
County Superior Court of California in 1983 as an aggravating circumstance under NRS
200.033(2). Since the two murders involved in the California judgment were committed
subsequent to the murders in the instant case, Gallego contends the former killings do not
qualify as an aggravating circumstance under the statute.
This issue is one of first impression in the State of Nevada. NRS 200.033(2) provides as
follows:
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.
Gallego argues that the statute simply provides that a person who is convicted of murder and
thereafter commits another murder will have the second offense aggravated by the first. Thus,
Gallego concludes that since the June 1983 California convictions did not precede the 1980
killings of Redican and Twiggs, the admission of the former offenses as a statutory
aggravating circumstance was error. Gallego is wrong.
[Headnote 10]
Aggravating circumstances, as defined by the statute, provide direction to the sentencing
authority as it considers an appropriate punishment for the defendant. The statute was never
intended to operate on the vagaries of conviction sequences. Instead, the focal point is the
time of sentencing. The sentencing panel is entitled to consider all relevant aspects of the
defendant's criminal background prior to rendering sentence. The fact that Gallego murdered
two victims after killing the two victims in the instant case is not relevant to the dictates of
the statute. The clear language of the statute required only that Gallego stood convicted of the
California murders at the time of the introduction of that evidence in the penalty phase of the
present proceeding. It would be both absurd and counterproductive for this Court to
construe the plain language of the statute so as to exclude convictions of murders or
crimes of violence occurring after the primary offense but prior to the penalty phase of a
defendant's trial.
be both absurd and counterproductive for this Court to construe the plain language of the
statute so as to exclude convictions of murders or crimes of violence occurring after the
primary offense but prior to the penalty phase of a defendant's trial. This we refuse to do. The
trial court did not err.
E.
Sentencing Factors
Finally, Gallego contends that his sentence of death was the product of passion, prejudice
or arbitrary behavior on the part of the jury. We disagree. Our review of the record reveals
that Gallego's sentence was not imposed under the influence of passion, prejudice or any
arbitrary factor. Moreover, in conformity with statutory requirements existing at the time of
the instant crimes, we have reviewed Gallego's sentence to determine whether it is excessive
or disproportionate to the penalty imposed in similar cases in this State, considering both the
crime and the defendant. We have concluded that it is not.
We have carefully examined the remaining contentions of error and conclude that they are
without merit. Gallego was fairly tried, convicted and sentenced. The judgment of the trial
court is therefore affirmed.
Springer, C. J., Mowbray, Gunderson, and Steffen, JJ., and Agosti, D. J.
6

____________________

6
The Honorable Deborah A. Agosti, Judge of the Second Judicial District Court, was designated by the
Governor to sit in place of The Honorable Cliff Young, who recused himself. Nev. Const., art. 6, 4.
____________
101 Nev. 793, 793 (1985) Holyfield v. State
NAPOLEAN HOLYFIELD, JR. and DUANE NARVELL TOWNSELL, Appellants, v. THE
No. 13967
December 20, 1985 711 P.2d 834
Consolidated appeal from judgments of conviction upon jury verdict. Second Judicial
District Court, Washoe County; William N. Forman, Judge.
Defendant and codefendant were convicted in the district court of burglary, two counts
each of robbery with use of deadly weapon, two counts each of kidnapping, and defendant
was also convicted of being ex-felon in possession of concealed firearm, and defendant and
codefendant appealed. The Supreme Court, Gunderson, J., held that: (1) police placing a
self-interested twice convicted felon and escapee in defendant's cell amounted to
interrogation for purposes of Miranda; {2) error of admitting testimony of felon was
prejudicial as to defendant; and {3) admission of felon's testimony regarding codefendant
was not harmful.
twice convicted felon and escapee in defendant's cell amounted to interrogation for purposes
of Miranda; (2) error of admitting testimony of felon was prejudicial as to defendant; and (3)
admission of felon's testimony regarding codefendant was not harmful.
Steffen and Mowbray, JJ., dissent in part and concur in part.
Samuel T. Bull, Reno, for Appellants.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Edward B.
Horn, Deputy, Washoe County, for Respondent.
1. Criminal Law.
As for procedural safeguards to be employed, Miranda requires that prior to questioning, person must be
warned that he has right to remain silent, that any statement he makes may be used as evidence against him,
that he has right to have attorney present, and that one will be appointed for him if he cannot afford one.
2. Criminal Law.
Defendant was in custody for purposes of Miranda even though defendant was incarcerated on other
charges at time he allegedly made incriminating statements regarding charge he was not incarcerated on,
since nothing in Miranda makes necessity for warnings dependent on particular reason defendant is in
custody.
3. Criminal Law.
Convict placed in cell of defendant was agent of police, even though prosecution maintained that police
instructed convict not to question defendant, where police detectives placed convict in jail cell with
defendant admittedly to seek incriminating statements about both robbery for which defendant had been
arrested and another robbery of which he was suspected, prosecution conceded that police in fact expected
convict to question defendant and that convict knew he was expected to elicit information from defendant.
4. Criminal Law.
Conversation between defendant and self-interested, twice convicted felon and escapee placed by police
in defendant's cell amounted to interrogation for purposes of Miranda and in absence of Miranda warnings
constituted violation of defendant's rights under Fifth Amendment, U.S.C.A.Const. Amend. 5, and Const.
Art. 1, 8, where police fully expected felon to question defendant and felon himself knew what police
expected, felon could have received information placing him in position to elicit admissions or information
concerning robbery defendant was charged with.
5. Criminal Law.
Error of admitting testimony of self-interested twice convicted felon and escapee placed by police in
defendant's cell regarding felon's conversation with defendant was prejudicial, where no direct evidence
existed implicating defendant, and none of the six victims was able to identify defendant as one of
perpetrators of robbery.
6. Criminal Law.
Error of admitting testimony of self-interested twice convicted felon and escapee placed by police in
defendant's cell regarding conversation between felon and defendant did not harm
codefendant in prosecution for burglary, robbery with use of deadly weapon, and
kidnapping, where before felon testified one witness testified that codefendant had
admitted to witness that codefendant's car was used in robbery, and second witness
testified that he had followed car from robbery scene and recorded its license plate
number.
between felon and defendant did not harm codefendant in prosecution for burglary, robbery with use of
deadly weapon, and kidnapping, where before felon testified one witness testified that codefendant had
admitted to witness that codefendant's car was used in robbery, and second witness testified that he had
followed car from robbery scene and recorded its license plate number.
OPINION
In this consolidated appeal, the central issue is whether police officers may subvert a
suspect's constitutional rights under the Fifth Amendment of the federal constitution and
article 1 section 8 of the Nevada Constitution by bargaining to have a self-interested,
twice-convicted felon and escapee conduct a custodial interrogation that the police could not
lawfully conduct themselves. We hold they may not do so. For the reasons discussed below,
we affirm appellant Townsell's judgment of conviction, but we reverse the conviction of
appellant Holyfield.
The convictions of Holyfield and Townsell stem from an armed robbery at the Sierra
Schools Credit Union in Reno on July 16, 1980. On that morning, two young black men
entered the credit union brandishing handguns. After taking $6,700 in cash from the tellers'
drawers, the robbers confined the credit union employees and a customer in a vault. As they
fled, the robbers encountered the credit union's manager in the parking lot. They took her
purse, papers, and a banking bag containing a deposit slip in the amount of $20,000. Then,
they forced her into the trunk of her car where she remained for two hours.
Earlier that morning, at around 9:30 a.m., a witness driving by the credit union had
observed three black males, wearing colored bandanas, sitting in a gold Chrysler automobile
parked near the credit union. At approximately 11:20 a.m., the witness again drove by and
noticed the same Chrysler. The Chrysler, still carrying three black men, pulled sharply in
from of the witness into his lane of traffic, and ran two stop signs. The witness followed the
car for some distance and, believing that the occupants were acting suspiciously, recorded the
vehicle's license number. After reading about the robbery in the newspaper the next day, the
witness reported his observations to the police.
Although the police determined that the vehicle was registered to Townsell, they allegedly
could not locate the vehicle until two weeks later, on August 1, when it was being driven not
by Townsell but by Holyfield. The police stopped the vehicle and arrested Holyfield on an
outstanding warrant for an unrelated robbery of a Sparks movie theatre. The police seized
Holyfield's glasses because, although they differed in color, they were similar in shape to
glasses that reportedly had been worn by one of the robbers of the credit union.
glasses because, although they differed in color, they were similar in shape to glasses that
reportedly had been worn by one of the robbers of the credit union. Holyfield was
subsequently taken to the Sparks Police Department, given his Miranda warnings, and
questioned directly by the police about the credit union robbery.
1
Holyfield denied any
involvement in the credit union robbery.
While Holyfield was in custody in the Sparks City Jail, the Reno police detectives
investigating the credit union robbery enlisted the aid of a long-time criminal and former San
Quentin inmate named Obbie Jacobs, alias George Shaw, who had a history of serving as
an informant or fink to purchase favorable treatment for himself, and who was then
residing in the Washoe County Jail. On or about August 24, 1980, police detectives placed
Jacobs in the jail cell with Holyfield, admittedly to obtain incriminating statements about
both the cinema robbery for which Holyfield had been arrested, and about the credit union
robbery of which they had concluded Holyfield was also guilty. Upon existing the cell the
next day, Jacobs immediately related to the detectives his version of the statements Holyfield
had allegedly made to him concerning both the cinema robbery and the credit union robbery.
According to Jacobs, Holyfield admitted that he and two others had committed the credit
union robbery.
2
After receiving Jacobs' taped statement, on August 28 Reno police formally
arrested Holyfield, who was still in jail, for the credit union robbery. It was not until
September 18, 1980, however, that both Holyfield and Townsell were formally charged with
burglary, two counts each of robbery with use of a deadly weapon, and two counts each of
kidnapping for the credit union incident. Holyfield was also charged with being an ex-felon in
possession of a concealed firearm.
At trial, none of the six victims of the robbery or any other witness was able to identify
Holyfield or Townsell as the perpetrators of the credit union robbery. Nor were any of these
individuals able to identify Holyfield and Townsell in any of the pretrial lineups.
Consequently, without any direct evidence, the state was forced to rely in large part upon
Jacobs' testimony and upon that of three other witnesses, two of them convicted felons,
who were acquainted with appellants.
____________________

1
Detective Eubanks of the Reno Police Department, who apparently led the questioning, testified at
appellant's trial: I told Holyfield that the car he was driving in was seen being used as the getaway car from a
credit union robbery on Bible Way in Reno. And I had information that I knew he did it, was part of it, and there
were other people involved. And asked if he would like to tell me about it.

2
At trial, however, Roy Joshua, a prisoner in the cell contemporaneously with Holyfield, testified that he
overheard Jacobs questioning Holyfield and that Holyfield did not discuss the credit union robbery. Joshua
testified that Holyfield, in response to Jacobs' questioning, told Jacobs that he didn't know what Jacobs was
talking about.
of three other witnesses, two of them convicted felons, who were acquainted with appellants.
For example, Michael King, an ex-felon on probation, testified that on August 20, 1980,
he gave a taped statement to the Reno police detectives following his arrest for a different
offense. King told the police that he had a conversation with Townsell in August. According
to King, he saw Townsell with about $5,000, and Townsell admitted to King that he and
another person had robbed the credit union and fled with a third accomplice. King further
described to the police the details of the robbery as allegedly related to him by Townsell.
Additionally, according to King, Townsell stated that he left the Reno area because he knew
police were looking for him for the credit union robbery and knew his car had been
impounded. Interestingly, none of Townsell's statements to King implicated Holyfield.
The jury subsequently found Holyfield and Townsell guilty of all the counts charged. This
appeal followed.
Appellants contend that the district court erred by refusing to suppress Jacobs' testimony
concerning the incriminating statements Holyfield allegedly made to Jacobs while the two
were confined in jail. Specifically, appellants contend that admission of this evidence violated
Holyfield's constitutional right against self-incrimination because Jacobs was, in fact, an
agent of the police and he had not advised Holyfield of his Miranda rights prior to speaking
with him. We agree.
[Headnote 1]
In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court held
that the prosecution may not use statements, whether exculpatory or inclupatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. The ruling of Miranda
applies to statements taken during a custodial interrogation, which the Court defined as
questioning initiated by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way. Id. at 478 (footnote
omitted). As for the procedural safeguards to be employed, Miranda requires that prior to
questioning, the person must be warned that he has a right to remain silent, that any statement
he makes may be used as evidence against him, that he has the right to have an attorney
present, and that one will be appointed for him if he cannot afford one. Id. at 479. Because it
is conceded that Holyfield was not given any of these warnings before he was subjected to
inquiry by Jacobs, the issue presented is whether Holyfield's alleged admissions were the
product of custodial interrogation initiated by the police.
[Headnote 2]
We note initially that, although Holyfield was incarcerated on other charges at the time he
allegedly made the incriminating statements to Jacobs, he was in custody for purposes of
Miranda. See Mathis v. United States, 391 U.S. 1 (1968). As the court in Mathis concluded,
nothing in the Miranda opinion makes the necessity for warnings dependent on the particular
reason the defendant is in custody. Id. at 4-5. As soon as a person is incarcerated for any
reason, he must be given his Miranda warnings before he is interrogated. Therefore, we
conclude, and the state concedes as much, that Holyfield was indeed in custody for
purposes of Miranda when Jacobs conversed with him.
[Headnote 3]
Second, there is no doubt that Jacobs, upon agreeing to foster police efforts to inculpate
Holyfield, became an agent of the police. Police detectives placed Jacobs in the jail cell with
Holyfield, admittedly to seek incriminating statements about both the robbery for which
Holyfield had been arrested and the credit union robbery of which he was suspected.
Although the prosecution maintains that the police instructed Jacobs not to question
Holyfield, the prosecution has conceded that the police in fact expected him to do so, and that
Jacobs knew he was expected to elicit information from Holyfield.
3
The only question that
remains, then, is whether Jacob's conversation with Holyfield amounted to interrogation
for purposes of Miranda.
____________________

3
On at least three occasions in response to questions by this court at oral argument, the State conceded that
Jacobs knew they expected him to elicit information from Holyfield:
Court: He knew that they wanted him to get into a conversation about the robbery, though; he knew
that, didn't he?
Prosecutor: Who did?
Court: Jacobs.
Prosecutor: Yes.
Court: He absolutely knew that the purpose of putting him in the cell was so that he could get
information from the defendant in this case.
Prosecutor: Thatthat is clearly correct.
. . .
Prosecutor: The Police did want information through Obbie Jacobs, and Obbie Jacobs knew that he
had a job to do when he got into the jail cell. I can see
Court: That's right. So they [the police] put him in there to bring the conversation around to the
subject, and basically, subtly perhaps, but in fact
Prosecutor: No question about it.
Court: No question about it that he was there to interrogate the defendant, right?
Prosecutor: They told him not to interrogate him. But, yes, if you want to use the word subtly or
whatever
Court: He was expected to conduct a subtle interrogation of this man, wasn't he?
Prosecutor: He was told not to interrogate Mr. Holyfield, but yes, in a sense, you're correct.
remains, then, is whether Jacob's conversation with Holyfield amounted to interrogation for
purposes of Miranda.
The state maintains that Holyfield was not subjected to police interrogation, for several
reasons. First, the state contends that Holyfield was not questioned by any figure of authority.
Second, the state contends, there was no environment or atmosphere which in any way could
be described as intimidating or coercive because Jacobs and Holyfield conversed in a
dormitory cell which housed twelve other inmates. The state argues that Holyfield did not
have to talk to Jacobs; he could have simply walked away. Third, the state contends that the
police instructed Jacobs not to ask Holyfield any direct questions or attempt to initiate an
interview with him. Fourth, the state argues that the police did not give Jacobs any details
concerning the credit union robbery and, therefore, Jacobs was not in a position to elicit
admissions from Holyfield. For the reasons discussed below, we reject these contentions.
In Rhode Island v. Innis, 446 U.S. 291 (1980), the Court held that interrogation under
Miranda need not amount to actual questioning and may instead be the functional
equivalent of such questioning. The Court defined the latter to include any words or
actions on the part of police (other than those normally attendant to arrest and custody) that
the police should know are reasonably likely to elicit an incriminating response from the
suspect.
4
Id. at 300 (emphasis added; footnotes omitted).
In the present case, the state concedes that Jacobs was acting as an agent of the police, that
police deliberately placed Jacobs in Holyfield's cell in the hope of gaining incriminating
testimony concerning Holyfield's assumed involvement in the credit union robbery, and that,
since Jacobs and Holyfield were previously acquainted, it was plausible Holyfield would
talk to Jacobs about the robberies he had committed.5 Moreover, it appears from the
testimony of another witness, Roy Joshua, who had been a prisoner in the cell
contemporaneously with Jacobs and Holyfield, that Jacobs performed as the police
contemplated by repeatedly asking Holyfield questions about the credit union and cinema
robberies, but that he never heard Holyfield mention the credit union robbery in response.
____________________
. . .
Court: And I believe you also indicated that you couldn't argue with my statement that he knew that
he was expected to elicit information from the defendant. Right?
Prosecutor: That's correct. I can't argue with that.
At trial, Jacobs confirmed that he was told Holyfield would be his cellmate and was placed there for purposes
of gathering information for them about robberies the police believed Holyfield had committed.

4
Although the court in Innis stated that this definition of interrogation primarily focuses on the perception of
the suspect, this was to remove the necessity of proving the underlying intent of the police in ambiguous
circumstances. See id. at 301. The court did, however, allow for inquiry into the intent of the police. This is not
to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have
known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where
a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice
will not also be one which the police should have known was reasonably likely to have that effect. Id. at 301 n.
7
acquainted, it was plausible Holyfield would talk to Jacobs about the robberies he had
committed.
5
Moreover, it appears from the testimony of another witness, Roy Joshua, who
had been a prisoner in the cell contemporaneously with Jacobs and Holyfield, that Jacobs
performed as the police contemplated by repeatedly asking Holyfield questions about the
credit union and cinema robberies, but that he never heard Holyfield mention the credit union
robbery in response.
It is disingenuous to argue, as the state does here, that Jacobs did not interrogate Holyfield
simply because Jacobs was allegedly instructed not to question Holyfield directly about the
robbery. As we have noted, the police fully expected Jacobs to question Holyfield and Jacobs
himself knew what the police expected.
6
We conclude, therefore, that Jacobs' conversation
with Holyfield was the functional equivalent of express police questioning for purposes of
Miranda under the test set forth above.
The record also refutes the state's suggestion that Jacobs could not have interrogated
Holyfield because he had no prior information about the robberies. Jacobs had access to
information concerning the credit union robbery because he was in Washoe County Jail with
Michael King on August 20, 1980, the same day King reportedly gave Reno police detectives
a taped statement concerning Townsell's involvement in the credit union robbery. Jacobs
testified at trial that he received information from King about an unrelated crime and he went
to Detectives Eubanks and Kimpton with this information. Jacobs, then, could have received
information from King concerning the credit union robbery as well. Thus, Jacobs was in a
position to elicit admissions or information concerning the credit union robbery from
Holyfield. Likewise, he was in a position to fabricate a story of alleged admissions by
Holyfield, which would satisfy the police and earn favorable consideration for himself.
____________________

5
Indeed, at trial, Detective Eubanks testified:
The whole thing came about, was that Mr. Jacobs was placed in a cell in the Sparks Police
Department by Sparks Police Department officers, at the request of myself and Detective Kimpton and
Detective Zamboni of the Sparks Police.
. . .
Because Mr. Holyfield, the defendant, was acquainted with Mr. Jacobs from a prior contact in another
detention facility. And that if Mr. Holyfield had any tendency to start talking about any crimes he might
have done, that would be a very likely person he might make those statements to.

6
Contrary to the state's suggestion, this is not a case of the police obtaining information through the
misplaced confidence of Holyfield because Jacobs was working directly as a police agent. He was doing that
which the police themselves could not do. Compare United States v. Brown, 466 F.2d 493 (10th Cir. 1972) with
United States v. Mitchell, 417 F.2d 1246, 1249 (7th Cir. 1969).
admissions by Holyfield, which would satisfy the police and earn favorable consideration for
himself.
Nor are we persuaded by the state's contention that Holyfield was not subjected to an
intimidating or coercive atmosphere in the jail cell. As one commentator has noted,
[m]ere confinement might increase a suspect's anxiety, and he is likely to seek
discourse with others to relieve his anxiety. That search, of course, may make him more
susceptible to an undercover investigator seeking information about the offense for
which the suspect has been arrested.' Confinement of the suspect increases the power of
the police in an important respect. Because the suspect's ability to select people with
whom he can confide is completely within their control, the police have a unique
opportunity to exploit the suspect's vulnerability. In short, the police can insure that if
the pressures of confinement lead the suspect to confide in anyone, it will be a police
agent. In view of the government's control over the suspect's channels of
communication, it is blatantly unfair to allow the government to exploit the suspect's
vulnerability by trickery of this type.
7

White, Police Trickery in Inducing Confessions, U.Pa.L.Rev. 581, 605 (1979) (footnotes
omitted); see also U.S. v. Henry, 447 U.S. 264, 274 (1980); Dix, Undercover Investigations
and Police Rulemaking, 53 Tex.L.Rev. 203, 230 (1975) (suggesting that a Miranda-type
barrier should preclude use of the jail-plant tactic).
Under these circumstances, many jurisdictions have applied the requirements of Miranda
notwithstanding the fact that a figure of authority did not conduct the interrogation. For
example, in State v. Fuller, 281 N.W.2d 749 (Neb. 1979), a defendant confined in prison on
unrelated charges was suspected of murdering a fellow prisoner. One of his cellmates agreed
to cooperate with the prison authorities and attempt to induce the defendant to discuss his role
in the inmate's death. The cellmate claimed to have succeeded, but the Nebraska Supreme
Court held that the defendant's purported statements were inadmissible. Since [the cellmate]
was acting as a police agent, this was custodial interrogation and the defendant was entitled to
the warnings required by Miranda. Id. at 749.
In Commonwealth v. Hamilton, 285 A.2d 172 (Pa. 1971), Hamilton was arrested for
burglary and was taken to a police station. At the time of his arrest, the police suspected
Hamilton of having committed an unrelated murder.
____________________

7
It is, of course, especially unfair and dilutes due process when police utilize an agent whose character is so
dubious that he may not relate conversations accurately, but instead may structure his reports in any way he
believes will please the police and benefit himself.
having committed an unrelated murder. He was not advised of his rights under Miranda.
Nevertheless, the police confronted Hamilton with his suspected accomplice, admittedly for
the purpose of obtaining an incriminating statement from Hamilton. The individual accused
Hamilton of being the triggerman in the crime; Hamilton sat mute for thirty seconds, and then
proceeded to give an inculpatory statement. Stating that a person whose freedom is
restrained and who is a suspect must first be apprised of his constitutional rights prior to the
initiation of any form of official interrogation be it direct or conducted indirectly through the
offices of a third party, the Pennsylvania Supreme Court held Hamilton's statement
inadmissible. Id. at 175. As the court noted, [t]o sanction this technique without proper
warnings would be to place a premium on the ingenuity of the police to devise methods of
indirect interrogation, rather than to implement the plain mandate of Miranda that a suspect
in custody should be clearly advised of his rights before any attempt is made to induce him to
speak. Id. See also Commonwealth v. Bordner, 247, A.2d 612, 617 (Pa. 1968) (incriminating
statements made to his mother by an accused, who was confined in the hospital under police
guard and who had not been advised of his Miranda rights, were inadmissible; the
circumstances reveal a plan on the part of the police authorities to use the mother as a police
instrumentality in the interrogation of the accused son).
Similarly, in Tarnef v. State, 512 P.2d 923 (Alaska 1973), the defendant was incarcerated
on an unrelated charge. The Alaska Supreme Court held that a private investigator, who was
working closely with police on an arson investigation, who had promised to give police any
statements he obtained, and who had obtained access to the defendant through the police, was
required to administer the Miranda warnings to the defendant before questioning him. Cf.
People v. Whitt, 685 P.2d 1161 (Cal. 1984) (absent evidence of complicity on the part of law
enforcement officials, admissions or statements made by one prison inmate to another inmate
infringed no constitutional guarantees); Commonwealth v. Mahnke, 335 N.E.2d 660 (Mass.
1975), cert. den., 425 U.S. 959 (1976).
Again, in State v. Travis, 360 A.2d 548 (R.I. 1976), a police agentlonghaired,
handcuffed, and dressed in modtype clothingwas led into the jail cellblock, where his
handcuffs were removed and the agent was placed in the suspect's cell. The agent later
claimed that, after he conversed with the suspect to put him at ease, the suspect made several
statements amounting to a confession. On the basis of these alleged statements, the suspect
was charged and convicted. As in the instant case, the state argued that the defendant's
statements had not been compelled but, rather, had been volunteered freely and, therefore,
were admissible in evidence.
but, rather, had been volunteered freely and, therefore, were admissible in evidence. In
reversing the conviction, the Supreme Court of Rhode Island held, as we do, that the ruse
employed by the police offended their state's constitution as well as the federal constitution,
stating:
We attach no significance as to whether the agent in the cell asked questions of the
duped defendant or not. [Citations omitted.] To allow into evidence admissions made to
an agent in the cell who made casual conversation with a defendant while carefully
avoiding any questions regarding the specific crime under investigation, but to disallow
that agent's testimony if he asked a question pertaining to a defendant's reason for being
incarcerated, would be to play games with an individual's constitutional guarantees. . . .
. . .
The police were not allowed to interrogate defendant directly. There is no authority
in these circumstances for the police to do indirectly what they may not do directly.
[Citations and footnote omitted.] The police conduct here nullified defendant's privilege
against compelled self-incrimination as guaranteed by the Constitution of Rhode Island,
art. 1, 13, and the fifth amendment of the United States Constitution.
. . .
Id. at 551. We therefore reject the state's contention that Miranda applies only to those
situations in which a figure of authority directly interrogates an accused.
8

It is simply not enough to attempt to ascertain mechanically what police-initiated
interrogation means without considering the rationale underlying the Miranda decision and
the Fifth Amendment. The Court in Miranda emphasized that warnings were necessary to
help aid the truth-finding function in a criminal proceeding, and to assure trustworthiness and
accuracy in the reporting of a defendant's statement. Miranda v. Arizona, 384 U.S at 470. As
the Court noted, a defendant must be advised of his right to have counsel present, because the
presence of counsel mitigates the dangers of untrustworthiness, and helps to "guarantee
that the accused gives a fully accurate statement to the police and that the statement is
rightly reported by the prosecution at trial." Id.
The present case graphically illustrates the importance of Miranda warnings in aiding the
truth-finding function.
____________________

8
The prosecution has cited only one decision to support its contention, i.e. State v. McDonald, 387 So.2d
1116 (La. 1980), in which two justices strenuously dissented, supporting the prevailing view, as articulated
herein, and stating inter alia: In my judgment it is a violation of an accused's Miranda rights for the police to
accomplish by subterfuge and trickery, in the form of a paid informer, that which the police cannot do under
color of law. In this instance, the informer was not compensated in material form, but in the form of a promise of
leniency and the dismissal of criminal charges pending against him. He was acting with the consent of, pursuant
to the authority of, and subject to the direction and supervision of the police. He was in law and in fact an agent
of the police. 387 So.2d at 1124.
mitigates the dangers of untrustworthiness, and helps to guarantee that the accused gives a
fully accurate statement to the police and that the statement is rightly reported by the
prosecution at trial. Id.
The present case graphically illustrates the importance of Miranda warnings in aiding the
truth-finding function. Here, Jacobs, the police informant who interrogated appellant, was a
twice-convicted felon, an escapee, and a former San Quentin inmate who was clearly acting
in his own self-interest when he agreed to seek incriminating statements from appellant.
9
Any report Jacobs made to the police was therefore of a suspect nature. Further, because the
conversation took place without any procedural safeguards, there is no assurance that
Holyfield made the statements Jacobs attributes to him. In fact, as noted above, one cellmate
testified that no such statements were made. Accordingly, this important function of the
Miranda warnings was clearly subverted by the police practice in this case.
As the Court noted in Miranda, [O]ur accusatory system of criminal justice demands that
the government seeking to punish an individual produce the evidence against him by its own
independent labors, rather than by the cruel, simple expedient of compelling it from his own
mouth. . . . In sum, the privilege is fulfilled only when the person is guaranteed the right to
remain silent unless he chooses to speak in the unfettered exercise of his own will.' Id. at
460, quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964). In the present case, Holyfield's alleged
statements were not given through a knowing and intelligent waiver of his rights, but instead
were the questionable product of an intentional subversion of those rights.
[Headnote 4]
The procedural safeguards set forth in Miranda are the only established means to protect a
defendant's rights under the Fifth Amendment and under article 1 section 8 of the Nevada
Constitution. We therefore cannot permit the police to subvert these important constitutional
rights by engaging in the surreptitious tactics used in this case. To do so would in effect
render a defendant's substantive rights under our state and federal constitutions wholly
meaningless.
10
[Headnote 5]
[Headnote 5]
____________________

9
Contrary to the state's suggestion, it appears that Jacobs benefitted from his participation in this scheme. The
record reveals that a representative of the Reno Police Department wrote a letter to the Parole Board indicating
that Jacobs had cooperated with law enforcement authorities. Moreover, Jacobs was paroled after serving 19
months of a two-year prison sentence. Interestingly, Jacobs served this time in the county jail, rather than the
state prison.

10
Wholly apart from our discussion of federal law, we hold that the conduct of the police in this case denied
Holyfield the privilege against self-incrimination guaranteed by article 1 section 8 of the Nevada Constitution.
[Headnote 5]
Finally, the state alternatively contends that even if Holyfield's Fifth Amendment rights
were violated by the admission of Jacob's testimony, we should conclude that any error was
harmless beyond a reasonable doubt. See generally Chapman v. California, 386 U.S. 18
(1967). With regard to appellant Holyfield, we disagree. Absent Jacobs' testimony, the
evidence presented against Holyfield was not in any way overwhelming. In particular, no
direct evidence existed implicating Holyfield, and none of the six victims was able to identify
Holyfield as one of the perpetrators of the robberies. We have no doubt that the jury's verdict
of guilt in Holyfield's case rested in large part upon the admission of Jacobs' self-interested
statements. Accordingly, we cannot say that a jury would have found Holyfield guilty beyond
a reasonable doubt without Jacobs' testimony.
[Headnote 6]
Appellant Townsell contends that admission of Jacobs' testimony that Holyfield told me
the car [used in the robbery] belonged to a man named Duane Townsell violated Townsell's
Sixth Amendment right to cross-examine his accusers because Holyfield chose not to testify
at trial. See Bruton v. United States, 391 U.S. 123 (1968). Before Jacobs testified, however,
both King (who testified that Townsell had admitted his car was used in the robbery) and
another witness (who testified that he followed the car from the credit union and recorded its
license plate number) had been on the stand. Given this evidence, Townsell was not harmed
by the admission of Jacobs' testimony. United States v. DiGeronimo, 598 F.2d 746, 754 (2d
Cir.), cert. den., 444 U.S. 886 (1979).
We have reviewed the record and conclude that sufficient evidence was presented at trial
as to appellant Townsell to establish his guilt beyond a reasonable doubt, as determined by a
rational trier of fact. See Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980). We will,
therefore, not disturb his judgment of conviction.
In conclusion, we recognize that the exigencies of the modern day call for sophisticated
and resourceful law enforcement methods. We have no wish to interfere with innovative
police practices
____________________
As the Miranda court did in discussing the Fifth Amendment, we have stated that the privilege is intented to
promote the truth-finding function in criminal proceedings. See State of Nevada v. Ah Chuey, 14 Nev. 79, 82-83
(1879).
Although appellants do not raise a Sixth Amendment challenge to the admission of Jacobs' testimony, we note
that the State has seen fit to argue that Holyfield's Sixth Amendment rights were not violated. In light of our
conclusion that Holyfield's rights against self-incrimination were violated by the admission of Jacobs' statements,
and that Jacobs' statements were therefore inadmissible, we decline to address the state's arguments concerning
the Sixth Amendment.
so long as they do not diminish rights fundamental to the American form of government.
Nonetheless, this court is obligated to enforce the constitutions of the United States and
Nevada, and we therefore cannot permit police ploys that subvert constitutional guarantees
which are designed to assure fairness and integrity in the truth-seeking process. Disinterested
zeal for the public good does not assure either right or wisdom in the methods it pursues.
Haley v. Ohio, 332 U.S. 596, 605 (1948) (Frankfurter, J., concurring).
We have considered appellants' remaining contentions and we conclude that they are
without merit. Accordingly, we hereby affirm appellant Townsell's judgment of conviction.
For the reasons set forth above, however, we hereby reverse appellant Holyfield's conviction
and remand his case for a new trial.
Springer, C. J., concurs.
Young, J., concurring:
While I fully concur in and endorse the opinion of the court, I add these observations in
support of it.
As the dissent notes, an important policy underlying the fifth amendment's proscription
against the use of compelled testimony is the prevention of extorted admissions of guilt.
However, a paramount concern is also the need to insure that purported admissions have
actually been made as reported. Miranda v. Arizona, 384 U.S. 436, 470 (1966). This concern
is especially great where the state seeks to rest upon the uncorroborated testimony of a
twice-convicted felon with a self-serving motive to produce inculpatory information.
Accordingly, while the suggestion has been made that the majority's statement of the issue
presented here is rhetorical and excessively judgmental, I respectfully suggest that the
dissent's alternative statement of the issue is misdirected. I believe an examination of the
cases relied upon by the dissent will make this quite clear.
1. Rhode Island v. Innis, 446 U.S. 291 (1980), is cited for the proposition that, for
purposes of Miranda, the definition of interrogation focuses solely upon the perceptions of
the suspect. Absent from this analysis is a discussion of footnote 7 of the Innis opinion
wherein the Supreme Court made it clear that the intent of the police is relevant in
determining whether a suspect has been interrogated for purposes of Miranda:
This is not to say that the intent of the police is irrelevant, for it may well have a
bearing on whether the police should have known that their words or actions were
reasonably likely to evoke an incriminating response. In particular, where a police
practice is designed to elicit an incriminating response from the accused, it is unlikely
that the practice will not also to be one which the police should have known was
reasonably likely to have that effect.
not also to be one which the police should have known was reasonably likely to have
that effect.
Id. at 301-02 n. 7.
In the present case, it is clear that the police expected Jacobs to elicit, or claim to have
elicited, admissions from Holyfield. The dissent concedes as much by noting that, under these
circumstances, Holyfield yielded his admissions [or Jacobs fabricated them] to an
orchestrated deception by the State. It seems, then, somewhat contradictory to conclude also
that the police did not expect that the jail cell scenario would produce incriminating
statements by Holyfield.
2. In People v. Wojtkowski, 213 Cal.Rptr. 846 (Ct.App. 1985), a husband savagely beat,
raped, and sodomized his wife in California and then fled to Illinois. California police placed
a recorder on the wife's telephone, not merely to obtain admissions, but for the purpose of
apprehending the husband and of protecting the wife and children. While still a fugitive from
justice, the husband telephoned the wife three times in an attempt to persuade her not to
testify against him. He called her again, after being apprehended and being placed in the
Ventura County Jail. At the time of the last call, the recorder had not yet been removed from
the wife's phone. The trial court admitted all for recordings against the husband during his
prosecution, and the California Court of Appeal upheld their admission in part because
neither a police agent nor interrogation was involved. The wife, the court noted, was not a
police agent but a victim and the complaining witness. The husband in all instances initiated
the conversations, and made his admissions during them, without instigation by the wife or
contrivance by the police. Obviously, therefore, the operative facts of the Wojtkowski case are
totally dissimilar from those in the instant one. (In addition, I note in passing that, in view of
the recordings, there was absolutely no doubt that the admissions had been made.)
3. Similarly, in People v. Aalbu, 696 P.2d 796 (Colo. 1985), the first contact between the
defendant and the informant was initiated by the defendant and not the police. The defendant,
while incarcerated, as a condition of probation on a recent drug conviction, met with the
informant (James Ross, who had served as a police informant on prior occasions) and
engaged in conversations concerning the defendant's plan to kill Mark Olson who along with
defendant had been convicted of violation of drug laws. Ross then reported these
conversations to the police. Ross agreed to participate in further discussions in exchange for
money payments and favorable consideration on criminal matters pending against himself. As
part of their investigation, the police arranged for the informant's release from jail and
recorded telephone calls initiated by the defendant to the informant so the defendant's
murder scheme could be thwarted before he could bring it to fruition.
phone calls initiated by the defendant to the informant so the defendant's murder scheme
could be thwarted before he could bring it to fruition. The defendant unsuccessfully sought to
suppress the taped telephone conversations. Relying upon Minnesota v. Murphy, 465 U.S.
420, 104 S.Ct. 1136 (1984), the Colorado court held that no fifth amendment violation had
occurred. The defendant in Aalbu was not under suspicion for commission of a crime, he
initiated the conversations with the informant, the conversations were recorded, and there was
no doubt that they occurred or that the admissions had been made. The State was not relying
solely upon the testimony of a felon, but upon recordings of the defendant's conversations.
4. In Minnesota v. Murphy, supra, relied upon in Aalbu, the defendant made incriminating
admissions during a regularly scheduled meeting with his probation officer. The Court
rejected the defendant's fifth amendment challenge to the use of those admissions in his
subsequent prosecution. The Court concluded that the defendant had not been subjected to
custodial interrogation for purposes of Miranda when he made the incriminating statements,
because he was not in custody. 465 U.S. ___, 104 S.Ct. at 1144-46.
5. People v. Konke, 268 N.W.2d 42 (Mich.App. 1978), involved the admission of
conversations had between a suspect and an undercover police agent equipped with a
recording device. The conversations transpired in a public place; the defendant was not in
custody. Because there was no custodial interrogation, the Michigan Court of Appeal properly
held that no Miranda warnings were required.
6. Milton v. Wainwright, 407 U.S. 317 (1972), was decided on a harmless error standard.
A majority of the court expressly refused to reach the question of whether the defendant's
rights under the fifth and sixth amendments had been violated when an undercover police
officer was placed in his cell. Four justices, dissenting, concluded that the State could not
place an undercover police agent in a prisoner's cell in the hope of eliciting a confession.
Accordingly, Milton has little relevance to the fifth amendment issue before this court. If it
supports anyone, it supports this court's majority.
7. United States v. Leon, 104 S.Ct. 3405 (1984), represents the Supreme Court's
unwillingness to require an exaggerated response to technical and unintended police
violations. Such violations are not involved here. Instead, we are presented with activity on
the part of the police that was designed to frustrate the rights guaranteed by Miranda. The
other cases cited in connection with Leon involve circumstances unrelated to the issue
presented in this case.
8. It has been suggested that this is simply a case of one friend (Holyfield) misplacing
trust in another (Jacobs). As the majority note, however, this is not a case of the police
obtaining information through the misplaced confidence of Holyfield because Jacobs was
working directly as a police agent. The dissent overlooks the decision in United States v.
Brown, 466 F.2d 493 (10th Cir. 1972). This case clearly holds that it would be improper to
place an undercover policeman in a prisoner's cell in the hope of eliciting inculpatory
statements. When the police resort to tactics of this sort, they trick a defendant into
relinquishing important constitutional protections. If the use of an undercover policeman is
proscribed by the fifth amendment, certainly the use of a police agent with a self-serving
motive to produce is likewise prohibited.
9. Finally, I note that cases based on sixth amendment analysis have little relevance to the
fifth amendment issue presently before the court. Consequently, the majority has scrupulously
refrained from relying on the vast body of case law holding that the police may not place an
informant in an accused's cell, to elicit incriminating information from the accused about the
charge for which he is incarcerated, without violating his sixth amendment right to counsel.
See, e.g., State v. McCorgary, 543 P.2d 952, 958 (Kan. 1975); State v. Smith, 482 P.2d 863
(Ariz. 1971); cf. Massiah v. United States, 377 U.S. 201 (1964). Reference to these cases
obscures the real issue before the court.
Although I share the dissent's belief that the truth-finding function is the rightful province
of the jury, it is no answer to the problem posed by Jacobs' lack of credibility to assert that the
jury is equipped to find facts and to assess the credibility of witnesses. The law requires the
state to prove the elements of a crime without resorting to the simple expedient of compelling
a confession from the accused. A major reason for this requirement is the inherent
unreliability of a compelled confession and the possibility that a jury will be unfairly
prejudiced by an apparent admission of guilt. These concerns are heightened when the state
relies on the uncorroborated testimony of a self-interested informant, especially when the
testimony is controverted by the alleged confessor. The possibility of false testimony
increases dramatically when the state undertakes to place a convicted felon in a jail cell with
an accused for the express purpose of eliciting an incriminating statement. In this case,
Jacobs' testimony was so inherently unreliable that, in my opinion, it should not have been
placed before the jury.
Steffen, J., with whom Mowbray, J., agrees, dissenting in part and concurring in part: I
respectfully dissent from the majority's reversal of appellant Holyfield's conviction but
concur in the affirmance of appellant Townsell's judgment of conviction.
I respectfully dissent from the majority's reversal of appellant Holyfield's conviction but
concur in the affirmance of appellant Townsell's judgment of conviction.
The majority describe the central issue on appeal in terms of whether police officers may
subvert a suspect's federal and Nevada constitutional rights under the Fifth Amendment and
article 1, section 8, respectively. The issue, thus framed, is both rhetorical and excessively
judgmental. It beckons an answer that is unmoored to the facts and the law applicable to this
case. It is true, of course, that no group, individual or entity may lawfully subvert any
aspect of our fundamental law. But the real issue here is whether law enforcement authorities
may lawfully use non-professional jail cell informants to obtain inculpatory information from
a suspect regarding an uncharged crime.
A meaningful resolution of the issue presented by this case demands analysis of the policy
interests underlying the issue. This leads to the seminal case of Miranda v. Arizona, 384 U.S.
436 (1966). The Miranda court specified the concerns of the opinion as the admissibility of
statements obtained from an individual who is subjected to custodial police interrogation and
the necessity for procedures which assure that the individual is accorded his privilege under
the Fifth Amendment to the Constitution not to be compelled to incriminate himself. I
suggest that the operative words of the quoted material are subjected to and compelled.
Indeed, this is demonstrated by the Court's description of the circumstances common to each
of the admissions secured by police interrogators in the four cases decided in Miranda:
incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in
self-incriminating statements without full warnings of constitutional rights. The Court also
observed the history of extortive police methods based upon physical or mental intimidation,
or both, conducted incommunicado for the express purpose of securing confessions of guilt.
In short, the Court recognized, as do I, that the Fifth Amendment right against compelled
self-incrimination would be shorn of meaning if a suspect could be lawfully subjected to
physical or mental intimidation calculated to break the exercise of free will. Manifestly, if
such overbearing methods of law enforcement were judicially condoned, the tragic prospect
of convicting innocent persons would be greatly increased. Thus, the policy underlying
Miranda is identical to that of the Fifth Amendment and its counterpart in the Nevada
Constitution, viz, to prevent extorted admissions of guilt from innocent suspects.
Since the majority have concluded that Holyfield was the victim of custodial interrogation
without first being advised of his Miranda rights, it is important to consider the meaning of
custodial interrogation as defined by the United Supreme Court.
Court. In Miranda, the Court explained: [b]y custodial interrogation, we mean questioning
initiated by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. Id. at 444. The Court's concern in
Miranda, as we recognized in Schaumberg v. State, 83 Nev. 372, 374, 432 P.2d 500, 501
(1967), focused on the compulsion which can be created by the interplay of interrogation
and custody. Rhode Island v. Innis, 446 U.S 291, 299 (1980) (emphasis added).
1
Self-incriminating statements which are not the result of such compulsion are admissible
despite the lack of Miranda warnings. As the Court in Miranda noted:
Confessions remain a proper element in law enforcement. Any statement given freely
and voluntarily without any compelling influences is, of course, admissible in evidence.
The fundamental import of the privilege while an individual is in custody is not
whether he is allowed to talk to the police without the benefit of warnings and counsel,
but whether he can be interrogated. There is no requirement that police stop a person
who enters a police station and states that he wishes to confess to a crime, or a person
who calls the police to offer a confession or any other statement he desires to make.
Volunteered statements of any kind are not barred by the Fifth Amendment and their
admissibility is not affected by our holding today.
384 U.S. at 478 (footnote omitted).
The compulsion, moreover, must exceed that which the prisoner naturally feels as result of
being in jail. Custody and interrogation are each prerequisites to the necessity of Miranda
warnings. The court in Innis proclaimed:
It is clear therefore that the special procedural safeguards outlined in Miranda are
required not where a suspect is simply taken into custody, but rather where a suspect in
custody is subjected to interrogation. Interrogation, as conceptualized in the Miranda
opinion, must reflect a measure of compulsion above and beyond that inherent in
custody itself.
446 U.S. at 300 (emphasis added and footnote omitted.) The Supreme Court went on to
expound the meaning of interrogation under Miranda, explaining:
[T]he Miranda safeguards come into play whenever a person in custody is subjected to
either express questioning or its functional equivalent.
____________________

1
For a compelling discussion of the interplay of interrogation and custody, see Kamisar, Brewer v.
Williams, Massiah, and Miranda: What is Interrogation? When Does It Matter?, 67 Geo.L.J. 1, 63-65
(1978).
functional equivalent. That is to say, the term interrogation under Miranda refers not
only to express questioning, but also to any words or actions on the part of police (other
than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect. The latter portion
of this definition focuses primarily upon the perceptions of the suspect, rather than the
intent of the police.
Id. at 300-01 (emphasis added and footnotes omitted).
As previously stated, the critical issue before us has to do with the constitutional propriety
of enlisting the aid of an informant in a jail cell environment to obtain incriminating
information from a suspect. The majority refer at length to a colloquy between the prosecutor
and a member of this Court as if to reveal startling admissions of culpability on the part of the
state in placing an informant in a jail cell for the purpose of obtaining information from the
defendant concerning his criminal activities. Absent is the incommunicado interrogation in a
police-dominated atmosphere; absent is the aspect of intimidation, physical or mental; absent
is the compulsion to speak or associate; absent is the authority figure through which a form of
intimidation may be accomplished; absent is a process calculated to break down the exercise
of free will. Present is the feigned appearance of friendship or common plight inducing
hoped-for admissions by the defendant who spoke freely, voluntarily and without
compulsion, intimidation or stressful setting. Under conditions thus described, I see no
encroachment on the dictates or policy concerns of Miranda. Where my brethren see
constitutional barriers, I see effective, resourceful and lawful police work.
In the recent, unanimous opinion of the Colorado Supreme Court, sitting en banc, People
v. Aalbu, 696 P.2d 796 (1985), the people prevailed under conditions far more offensive to
my brethren in the majority than those found in the instant case. In Aalbu, the defendant was
convicted of criminal solicitation to commit first degree murder. The evidence against the
defendant consisted primarily of conversations between the defendant and a cellmate, James
Ross, a police informant with an incentive to produce. Ross agreed to engage the defendant in
conversation that was expected to be incriminating in exchange for money and favorable
consideration on criminal charges pending against him. Citing Minnesota v. Murphy, 104
S.Ct. 1136 (1984), the Colorado Supreme Court held that the privilege against
self-incrimination protects against governmental compulsion to answer questions, not against
voluntary conversation. In situations where a person is free to speak or not to speak at all [as
was the case here], the privilege is generally not applicable. The court then adverted to the
exception involving "inherently coercive custodial interrogations" covered by Miranda and
noted that the Miranda safeguards have no application outside the context of such
interrogations.
the exception involving inherently coercive custodial interrogations covered by Miranda
and noted that the Miranda safeguards have no application outside the context of such
interrogations. Minnesota v. Murphy, 104 S.Ct. 1144, quoting Roberts v. United States, 445
U.S. 552, 560 (1980). Moreover, the Colorado court concluded that the admission of the
defendant's statements to the informant did not violate Aalbu's Sixth Amendment right to
counsel. Observing that Aalbu's incarceration was the result of sentencing under an unrelated
crime, and that no charges were pending against the defendant for criminal solicitation when
the informant was dispatched to gather inculpatory statements, the court held that no right to
counsel existed in connection with the latter offense that could have been violated by the
informant's conduct.
State v. McDonald, 387 So.2d 1116 (La. 1980), cert. denied, 449 U.S. 957 (1980),
represents a case where a police informant was placed in a jail cell with an inmate suspected
of criminal homicide. The informant, who was a friend of the suspect, cooperated in
obtaining incriminating admissions from the suspect in exchange for the dismissal of charges
against him. On appeal from a conviction of first-degree murder, the defendant claimed the
trial court erred in admitting his inculpatory statements to the informant, a police agent, who
assertedly violated his Fifth Amendment right against self-incrimination by failing to give
him a Miranda warning. Noting that the informant's questions were not posed by a figure of
authority and that the atmosphere was free of intimidation, the court concluded that the
defendant's admissions were not the result of a custodial interrogation requiring Miranda
warnings. The court also observed that: [t]he case presented here is that of one friend
misplacing confidential information with another who, in turn, used it to his own advantage.
The misplacement of such confidence did not require the safeguards required by Miranda in
custodial interrogation. The McDonald court also dispensed with the Sixth Amendment
issue by holding that a person's right to counsel attaches only at or after the time that
adversary judicial proceedings have been initiated. At the time of his inculpatory statements
to the informant, the defendant had not yet been indicted; his incarceration was attributable to
an unrelated matter.
In People v. Wojtkowski, 213 Cal.Rptr. 846 (1985), the defendant placed a call from
county jail to his wife who was the victim of his criminal assaults. The police had the victim
record the conversation unbeknown to the defendant. In refusing to suppress the recorded
admissions, the court held, inter alia, that:
Defendant's arguments also fails because courts have agreed that questioning by a
police agent does not involve interrogation as long as the defendant is unaware of the
agent's relationship with the government.
relationship with the government. (Ringel, William. Search and Seizure, Arrests and
Confessions (1984) p.27-37). The premise for these decisions is that the interplay of
interrogation and custody would subjugate the individual to the will of his examiner.
(Rhode Island [v. Innis], 446 U.S. 291, 299, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297). If
an individual is unaware of government involvement, he cannot reasonably be thought
to experience pressure or coercion.
Turning again to the case before us, police officials gained the cooperation of Obbie
Jacobs in engaging Holyfield in conversation in the jail cell. Holyfield was incarcerated after
an arrest for an unrelated robbery, and law enforcement authorities hoped that Holyfield
would speak to Jacobs about the crime for which he was being held and also about the credit
union robbery that he was suspected of committing. Jacobs testified that the police gave him
no details regarding any robbery, no directions, and no specific questions to ask Holyfield.
Jacobs was informed that Holyfield was in custody for one robbery, but was not told that he
was under suspicion for another.
The detective who planted Jacobs in Holyfield's cell also testified that he gave Jacobs no
details concerning any robbery. He told Jacobs to be an ear for the police concerning any
criminal activity, as well as the whereabouts of some recently stolen dynamite. Jacobs was
told not to instigate any discussion or to question the prisoner. He was then placed in the
dormitory cell containing Holyfield and twelve other prisoners. One prisoner, Roy Joshua,
testified that Jacobs asked Holyfield and other prisoners questions and that he overheard
Jacobs and Holyfield discuss the cinema robbery, but not the credit union robbery. Jacobs,
however, testified that Joshua was not present during his conversation with Holyfield and that
Joshua's bed was on the opposite side of the room.
2

The majority view the composite of Holyfield's custody on an unrelated charge and Jacobs'
presence as a police agent as the equivalent of custodial interrogation mandating Miranda
warnings. In seeking to buttress this conclusion, the majority cite Rhode Island v. Innis,
supra, and then indulge in characterizing and weighing the evidence as if this were an
appellate court prerogative. First, the majority assign footnote priority to the most significant
aspect of the Innis holding upon which they seek to rely. In analyzing the functional
equivalent of interrogation as defined by Miranda, the Innis court specified that the
functional equivalent to interrogation that police should understand would likely produce
an incriminating response from a suspect refers to the perceptions of the suspect rather
than the intent of the police.
____________________

2
Consideration Jacobs received for his assistance was a letter from the Reno police department apprising
the parole board of Jacobs' cooperation. Jacobs served nineteen months of a two-year sentence.
understand would likely produce an incriminating response from a suspect refers to the
perceptions of the suspect rather than the intent of the police. This, of course, simply
reemphasizes the element of coercion that must coexist with custody in order to violate a
suspect's Fifth Amendment rights. As noted by Professor Kamisar, if it is not custodial
police interrogation' in the eye of the beholder, then it is not such interrogation within the
meaning of Miranda. See footnote 3, infra. Thus, the court covered coercive police practices
that could not be characterized as interrogation but would, by design, have the same effect. A
hypothetical example of such conduct might be the placement of a suspect in an isolated cell
within sight of an enlarged, grotesque photograph of a murder victim. The combination of
time, isolation and photograph could reasonably be viewed as a police practice constituting
the functional equivalent of custodial interrogation; a practice that the police may view as
being reasonably likely to eventually elicit an incriminating statement resulting from a
breakdown of the suspect's free will.
The majority overlook the requirement, under both Miranda and Innis, that a suspect in
custody be subject to express interrogation or its functional equivalent. This aspect of
interrogation relates to the captive attention a suspect must give to the questions or actions of
his captors. A suspect such as Holyfield who was free to walk away from questions or any
functional equivalent thereof, is hardly subject to interrogation. Moreover, subjecting a
suspect to custodial police interrogation implicates an aspect of unrelenting verbal assault
designed to break the suspect's will. Thus, the Court in Minnesota v. Murphy, supra, declared
that the coercion inherent in custodial interrogation derives in large measure from an
interrogator's insinuations that the interrogation will continue until a confession is obtained.
104 S.Ct. at 1145. Again, this major source of inherent coercion was entirely absent in the
informal discussions between Holyfield and Jacobs.
Moreover, in focusing on the perceptions of the suspect, it is simply free of doubt that
Holyfield's admissions were voluntary and untainted by any coercive element. Holyfield
freely conversed with Jacobs as a fellow inmate in the unintimidating environment of a
dormitory cell with twelve other prisoners. Holyfield's agency remained uncompromised by
Jacobs' presence since the latter presented no figure of authority
3
and Holyfield was free to
tolerate Jacobs' conversation and association or not as he pleased.
____________________

3
One commentator, referred to by the Supreme Court in Innis, 446 U.S. at 300, explains: It is the suspect's
awareness that he is talking with, and being talked to by, the police that generates the inherently compelling
pressures' of in-custody interrogation that Miranda warnings are supposed to dispel. See 384 U.S. at 467.
Kamisar, supra n. 1, at 51. The commentator also reasons that in the jail plant situation, which we have in the
instant
was free to tolerate Jacobs' conversation and association or not as he pleased. Jacobs was
neither trained nor prepared to provide a psychological priming for a Holyfield response;
consequently, Holyfield was not subject to any psychologically coercive police practices such
as those that roused the ire of the Miranda majority.
4
Jacobs was simply interjected in the
Holyfield environment as an equal to absorb whatever Holyfield was willing to give him.
Under such circumstances, I do not perceive the evil deprecated by Miranda and Innis. It is,
of course, apparent that Holyfield yielded his admissions to an orchestrated deception by the
State. Jacobs, clothed as a friend, functioned as a police agent. But in doing so, Jacobs did
nothing more than take advantage of Holyfield's willing but unwitting inclination to reveal
the details of his criminal enterprise to one he perceived as a friend. There was no scheme,
artifice or conduct designed to pry from Holyfield's mind that which he was not wont to share
freely with a fellow prisoner. Under such circumstances, I cannot conclude that the police
should have reasonably expected that the jail cell scenario would produce incriminating
statements by Holyfield.
Although I do not consider the point relevant, it is true that a fellow inmate, Joshua, who
shared the cell with Holyfield, testified that Jacobs questioned Holyfield. Jacobs, on the other
hand, testified that Joshua was never in a position where he could overhear any conversation
between Holyfield and Jacobs. Jacobs was not asked whether he directed questions to
Holyfield, but, as noted previously, he was instructed not to do so by the detective who placed
him in the cell with Holyfield.
5
Furthermore, Joshua also stated that he warned Holyfield
not to confide in Jacobs as he was suspicious of the purpose for which Jacobs was placed
in the cell.
____________________
case, there is no integration of custody and interrogation (with which the court in Miranda was so
concerned) where such interplay countsin the suspect's mind.
[How] can one envelop someone in a police-dominated atmosphere without having him realize it? How
can one produce an interrogation environment well calculated to subjugate the individual to the will of
his examiner when the individual is not even aware that he is in the presence of his examiner? That is
why, I submit, whatever may lurk in the heart or mind of the fellow prisoner (or apparent friend or
colleague), if it is not custodial police interrogation in the eye of the beholder, then it is not such
interrogation within the meaning of Miranda.
Id. at 65.

4
See Miranda, 384, U.S. at 448-55. Some of those condemned practices which subjugate the individual to
the will of his examiner, as reviewed by the High Court in Innis, include: a coached witness picking out the
accused in a lineup; a coached witness picking out the suspect as the perpetrator of a fictitious, more serious
crime; and, psychological ploys positing the guilt of the subject, minimizing the moral seriousness of the offense
and casting blame on the victim or society. 446 U.S. at 299.

5
The majority imply credibility to the testimony of the convicted felon, Joshua, while apparently attributing a
lack thereof to the police detective who testified that he instructed Jacobs to be an ear for the department
without
also stated that he warned Holyfield not to confide in Jacobs as he was suspicious of the
purpose for which Jacobs was placed in the cell. Giving credence to Joshua's testimony, it is
nevertheless clear that any express questioning of Holyfield by Jacobs was not of the
objectionable variety referred to in Innis. The type of interrogation considered by Innis to be
within the pale of Miranda, whether in the form of express questioning or its functional
equivalent, must contain an element of compulsion beyond that which is intrinsic to
incarceration. 446 U.S. at 300; see also United States v. Booth, 669 F.2d 1231, 1237 (9th Cir.
1981).
It is also apparent that the State is not doing indirectly what it may not do directly. When
the police planted Jacobs in Holyfield's cell, concealing the fact that Jacobs was a police
agent, they were not performing an interrogation at all. Rather they were relying on
Holyfield's misplaced confidence that Jacobs would not reveal his admissions of wrongdoing.
The privilege against self-incrimination is not violated when a suspect unwittingly
incriminates himself in the presence of a friend who is actually an informant.
6
See People
v. Konke, 268 N.W.2d 42 (Mich. 1978); State v. McDonald, supra, People v. Aalbu, supra.
The Fifth Amendment right not to incriminate oneself is one of the fundamental values of
our society. I therefore strongly share judicial concerns about human contrivances that may be
employed to extract admissions of guilt contrary to the free will of the suspect. However, the
Fifth Amendment was designed as a shield, not a sword. There are simply no social values to
be served by judicially excising the key element of compulsion from the Fifth Amendment
guaranty against compelled self-incrimination.
____________________
directing questions to Holyfield. In an effort to buttress their position disfavoring the testimony of the detective,
the majority cite the colloquy between a member of this Court and an uninvolved deputy district attorney who
merely argued this case on appeal. Although the colloquy reflects substantial speculation and is totally irrelevant,
I am troubled by the apparent attempt to credit the testimony of the felon, Joshua, at the expense of a law
enforcement officer and the prosecution. If the subtle point to be discerned from the majority's adumbrations is
disdain for the use of snitches in police investigative work, I strongly suggest that the effort is inappropriate
for the judicial branch of government. In any event, it was the rightful province of the jury, who heard the
testimony and observed the demeanor of witnesses, to determine issues of credibility.

6
As Holyfield in part does here, petitioner in Milton v. Wainwright, 407 U.S. 371 (1972), challenged the
admissibility of incriminating statements he made to a police officer posing as a fellow prisoner on Fifth and
Sixth Amendment grounds. The Supreme Court, while denying habeas corpus relief without reaching the merits
of the petitioner's claims, found no violation of federal constitutional standards. Id. at 377. Contrary to
Holyfield, moreover, Milton had already been indicted for the crime being reviewed by the Court. The Court
affirmed the denial of habeas corpus relief and found that any possible error in the admission of the challenged
confession was harmless beyond a reasonable doubt in light of three other unchallenged confessions and strong
corroborative evidence of Milton's guilt.
served by judicially excising the key element of compulsion from the Fifth Amendment
guaranty against compelled self-incrimination. Indeed, in the face of public exasperation with
criminal trends, the U.S. Supreme Court has, in several instances, contracted the panoply of
armamentaria accorded criminal defendants. As recent examples: United States v. Leon, 104
S.Ct. 3405 (1984), substantially eroded the Court derived exclusionary rule by engrafting an
exception based upon an objectively reasonable reliance by police on a subsequently
invalidated search warrant; Minnesota v. Murphy, supra, validated a confession of rape and
murder to a probation officer in spite of requirement that a probationer be truthful in all
things with probation officer and in spite of an anticipation of the confession by the
probation officer who did not give the confessant his Miranda rights; Pully v. Harris, 465
U.S. 37 (1983), declared that proportionality review was not constitutionally required in
capital cases; and Oregon v. Elstad, 105 S.Ct. 1285 (1985), held that the Fifth Amendment
does not require the suppression of a properly obtained confession that followed an earlier
admission secured by police without Miranda warnings. In short, it appears that concerns
over issues of innocence and guilt are beginning to make sensible inroads among what many
jurists have viewed as exaggerated judicial responses to instances of police abuse, both real
and theoretical. I therefore view with some measure of concern this Court fashioning a rule
that effectively eliminates a major investigative tool that should remain part of the law
enforcement arsenal.
7
Although confined, Holyfield's admissions to Jacobs were the
product of his own will, freely expressed.
____________________

7
In so doing, the majority have described their position as being in accord with the prevailing view. In
analyzing the cases cited by the majority as being supportive of this assertion, it would appear that only one case
seems to provide a basis for such support. For example, in Tarnef v. State, 512 P.2d 923 (Alaska 1973), a
private arson investigator was given access to the incarcerated suspect by the police for purposes of taking a
formal statement; the private investigator, who did not withhold his identity, claimed he gave the suspect his
Miranda rights, while the suspect contrarily maintained that the statement was given upon promise that no
charges would be filed and the suspect would receive a monetary reward for helping to apprehend the party who
contracted for the arson. In People v. Whitt, 685 P.2d 1161 (Cal. 1984), no decision was made concerning the
use of informants under the Fifth Amendment and the opinion was decided on the basis of Massiah v. United
States, 377 U.S. 201 (1964), a Sixth Amendment issue. State v. Travis, 360 A.2d 548 (R.I. 1976), involved a
suspect to expressly refused to speak to police without first consulting an attorney; thereafter, a trained,
undercover police officer was placed in the cell to obtain incriminating information. Commonwealth v.
Hamilton, 285 A.2d 172 (Pa. 1971), involved a clear violation of Miranda in that police officers, who had
earlier questioned Hamilton for several hours, surrounded the suspect, handcuffed him to a chair, and confronted
him with an accomplice who declared that Hamilton had killed the victim. Hamilton responded with
incriminating statements of lesser involvement than his accuser. In Commonwealth v. Bordner, 247 A.2d
Although confined, Holyfield's admissions to Jacobs were the product of his own will,
freely expressed. There was no compulsion or intimidation, however subtle, designed to
separate Holyfield from his natural inclinations and thought processes. However misplaced
his trust, it was Holyfield's decisions to confide in Jacobs and discuss his criminal activities.
In Minnesota v. Murphy, supra, the United States Supreme Court stated:
. . . the Miranda Court required the exclusion of incriminating statements obtained
during custodial interrogation unless the suspect fails to claim the Fifth Amendment
privilege after being suitably warned of his right to remain silent and of the
consequences of his failure to assert it. . . . We have consistently held, however, that
this extraordinary safeguard does not apply outside the context of the inherently
coercive custodial interrogations for which it was designed.
104 S.Ct. at 1144 (cites omitted).
The majority, of course, have offered no explanation for their rule that excludes voluntary
admissions unwittingly made in the complete absence of coercion, the key element that
triggers the extraordinary safeguard of the Miranda doctrine. In the case of Wilson v.
Henderson, 584 F.2d 1185 (C.A.2, 1978) involving a jail cell informant and a defendant who
sought to suppress his admissions under a Sixth Amendment challenge, the court said:
Furthermore, the admission of an in-custody statement voluntarily made to an
informant seems less egregious than the use of a statement intercepted by an electronic
eavesdropping device as was upheld in United States v. Hearst [563 F.2d 1331 (C.A.9,
1977), cert. den. 435 U.S. 1000 (1978)]. When a defendant makes a completely
unsolicited, incriminating remark in a face-to-face encounter with an informant, he
knowingly assumes the risk that his confidant may ultimately prove to be
untrustworthy. In an illegal search and seizure case the Supreme Court stated: [n]either
this Court nor any member of it has ever expressed the view that the Fourth
Amendment protects a wrongdoer's misplaced belief that a person to whom he
voluntarily confides his wrongdoing will not reveal it."
____________________
612 (Pa. 1968), incriminating statements by the suspect, who was in custody in a hospital, were made to the
suspect's parents (and intended victims of shooting) in the presence of participating, orchestrating police
officers. Commonwealth v. Mahnke, 335 N.E.2d 660 (Mass. 1975), cert. denied, 425 U.S. 959 (1976), actually
validated the admissibility of incriminating admissions secured forcefully by a vigilante group who acted without
the involvement of law enforcement authorities. Only the case of State v. Fuller, 281 N.W.2d 749 (Neb. 1979),
apparently supports the position taken by the majority in the instant case. This case was decided without benefit
of written analysis other than that supplied in cogent detail by the dissenting justice. The dissent in Fuller noted
that no cases had been cited by the majority in which the Miranda rule has been applied to information given
by informants. I suggest that the so-called prevailing view ascribed by the majority to their position is simply
unsupported by case authorities.
nor any member of it has ever expressed the view that the Fourth Amendment protects
a wrongdoer's misplaced belief that a person to whom he voluntarily confides his
wrongdoing will not reveal it. [Citing Hoffa v. United States, 385 U.S. 293, 302
(1966)]. Nor can such a shield be found in the Sixth Amendment.
Even if credibility were to be accorded to Joshua's testimony and we were to view
Holyfield's admissions as being solicited by Jacobs, this would not be relevant. As noted
previously, the United States Supreme Court denied certiorari in the case of State v.
McDonald, supra, where the informant sought information from the suspect but did so as one
who was not a figure of authority in a jail cell that was free of intimidation. That is precisely
the case here. Having no awareness of Jacobs' role as an informant, and having no obligation
to even speak to Jacobs, it is irrefutably clear that Holyfield, twice convicted for previous
robberies, felt no pressure or degree of compulsion to reveal anything to Jacobs.
The element of compulsion is the sine qua non of unlawful self-incrimination addressed
by Miranda and the federal and Nevada Constitutions. It should so remain. Since no aspect of
coercion was involved in Holyfield's inculpatory remarks to Jacobs I am unable to subscribe
to the majority's reversal of Holyfield's conviction. I accordingly dissent from that ruling. I
do, however, concur in the affirmance of appellant Townsell's conviction.
___________
101 Nev. 820, 820 (1985) Mill-Spex, Inc. v. Pyramid Precast Corp.
MILL-SPEX, INC., A Nevada Corporation, Appellant, v. PYRAMID PRECAST
CORPORATION, a California Corporation, Respondent.
No. 15350
December 31, 1985 710 P.2d 1387
Appeal from judgment. First Judicial District Court, Carson City; Michael E. Fondi,
Judge.
Landlord brought action to recover rental payments owed by tenant. Tenant admitted
failure to make payments, but counterclaimed for damages resulting from landlord's alleged
breach of duty to repair under lease agreement. The district court entered judgment in favor of
landlord for unpaid rent and against tenant, and tenant appealed. The Supreme Court held
that: (1) tenant's renewal of lease term was not a waiver of any claims concerning breach of
duty to repair, especially in light of lack of evidence of intent to waive, and {2) trial court
had not made a finding that tenant had failed to sufficiently prove damages.
intent to waive, and (2) trial court had not made a finding that tenant had failed to sufficiently
prove damages.
Carl F. Martillaro, Carson City, for Appellant.
Shaw, Heaton, Doescher & Owen, Carson City, for Respondent.
1. Estoppel.
Waiver is the intentional relinquishment of a known right and may be implied from conduct which
evidences an intention to waive a right, or by conduct which is inconsistent with any other intention than to
waive right.
2. Landlord and Tenant.
Tenant's exercise of option to renew lease was not a waiver of any claims for damages resulting from
alleged breach of landlord's duty to repair, especially in light of evidence that it would not have been
feasible for tenant, which utilized premises for manufacturing operation, to relocate and testimony that
landlord stated at time lease was renewed that it would undertake necessary repairs.
Trial court's statements from bench were not sufficient to support claim that it had determined that tenant
had failed to prove damages from any breach of landlord's duty to repair, in light of court's finding that
tenant had waived any claim, thus requiring remand following reversal of waiver judgment.
OPINION
Per Curiam:
Respondent-lessor filed this action to recover rental payments owed by appellant-lessee
pursuant to the terms of their lease. The lessee admitted its failure to make rental payments,
but counterclaimed for damages resulting from the lessor's alleged breach of the lease
agreement. The district court entered judgment in favor of the lessor for the amount of the
unpaid rent, and against the lessee as to its counterclaim. The lessee appeals from the district
court's ruling on the counterclaim.
The lease agreement provided for a one-year term, with an option to renew for an
additional year. The lease further provided that the lessor would make certain repairs on the
premises, including repairs to the heating system, lighting, walls of the building, and the
surrounding property. The testimony at trial indicates that some of these repairs were never
completed. Nevertheless, the lessee opted to renew the lease at the end of the first year. The
district court, in its written findings of fact and conclusions of law, concluded the following:
[1] That the exercise by [the lessee] of its option to extend the initial one year lease
period for an additional year, constituted a waiver of any claim for damages which [the
lessee] may otherwise have had. . . .
[1] That the exercise by [the lessee] of its option to extend the initial one year lease
period for an additional year, constituted a waiver of any claim for damages which [the
lessee] may otherwise have had. . . .
[2] That [the lessee] extending the lease term for an additional one year period,
continuing to remain on the premises for a period of 13 months thereafter and
paying rent for nine months thereafter precluded any recovery by [the lessee] of any
damages. . . .
The lessee contends that the act of renewing the lease does not, in itself, constitute a waiver
of its right to seek damages. We agree, and therefore reverse.
[Headnote 1]
A waiver is the intentional relinquishment of a known right. Reno Realty v. Hornstein, 72
Nev. 219, 301 P.2d 1051 (1956). A waiver may be implied from conduct which evidences an
intention to waive a right, or by conduct which is inconsistent with any other intention than to
waive the right. Mahban v. MGM Grand Hotels, Inc., 100 Nev. 593, 691 P.2d 421 (1984).
Whether there has been a waiver is ordinarily a question for the trier of fact. Id. at 595, 691
P.2d at 424.
[Headnote 2]
No authority has been cited by respondent, nor are we aware of any, which holds that a
lessee's exercise of its right to renew a lease constitutes a waiver of its claims for damages
resulting from the landlord's breach of his duty to repair. Even if we construe the district
court's conclusion above as a factual finding, we discern no substantial evidence which would
support such a finding. Undisputed testimony indicated that it would not have been feasible
for the lessee, who utilized the demised premises for a manufacturing operation, to relocate.
Furthermore, Jack Hardy, the sole officer, director and shareholder of the lessee-corporation,
testified that at the time the lease was renewed, the lessor assured him it would undertake the
necessary repairs. Because the foregoing considerations may have motivated the lessee to
renew the lease despite the alleged breaches of the lessor, we conclude that the lessee's
conduct in renewing the lease does not in itself constitute evidence of intent sufficient to
imply a waiver. See Reno Realty v. Hornstein, 72 Nev. at 225 (if an intention to waive a right
is to be implied from conduct, the conduct should clearly reflect that intention).
[Headnote 3]
The lessor contends that even if appellant did not waive its right to such damages, we
should affirm the judgment because the district court found that the lessee failed in its burden
to prove damages.
damages. We disagree. The district court entered no written findings of fact or conclusions of
law concerning the lessee's damages. The only reference which the district court made to such
damages appears in its oral ruling from the bench.
1
The district court's statements relating to
the damages sustained by the lessee appear to have been influenced by its determination that
the lessee had waived its claim. Therefore, we consider the district court's statements to be
inconclusive as to whether the lessee sufficiently proved damages.
Finally, the lessor contends that the record is devoid of any evidence establishing the
amount of the lessee's damages with reasonable certainty, or establishing that the lessee's
alleged loss was within the contemplation of the parties, at the time they made the contract, as
a probable result of the lessor's breach. See Pappas v. Zerwoodis, 153 P.2d 170 (Wash. 1944).
Our review of the record, however, reveals testimony from Jack Hardy and several of his
employees concerning the nature of the alleged damages and the costs which were allegedly
incurred as a result of those damages. In particular, the testimony indicates that the lessee's
employees expended a sizeable number of man-hours in order to mitigate problems allegedly
resulting from the lessor's breaches. Furthermore, it is at least arguable, under these
circumstances, that some of the alleged loss was within the contemplation of the parties at the
time they entered into the contract.
Nevertheless, it is within the province of the trier of fact to evaluate the credibility of
witnesses and determine the weight of their testimony. Jacobson v. Best Brands, Inc., 97 Nev.
390, 632 P.2d 1150 (1981). The district court never entered any specific findings of fact or
conclusions of law as to either the amount or foreseeability of damages. Therefore we reverse
the judgment and remand this case to the district court with instructions that it reconsider
appellant's counterclaim for damages in light of this opinion.
____________________

1
The district court stated from the bench:
Now, I think that the condition of the building was obviously a problem for the defendant. The
pictures show me, in any event, that it would be very difficult to operate in that building, but I didn't hear
any evidence that is significantly convincing to me to show exactly what limits of damages those were, in
light of the exercise of the option.
____________
101 Nev. 824, 824 (1985) Ramada Inns v. Sharp
RAMADA INNS, INC., dba TROPICANA HOTEL, Appel-
lant, v. KIMBERLY SHARP, Respondent.
No. 16284
December 31, 1985 711 P.2d 1
Appeal from a judgment rendered on a jury verdict awarding compensatory and punitive
damages to respondent and imposing prejudgment interest on the entire award; Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Female brought action against hotel, alleging that two of its security guards had pushed her
down a flight of stairs. The district court entered judgment under jury verdict awarding the
plaintiff $15,000 in compensatory damages and $10,000 in punitive damages, and the court
granted prejudgment interest on the entire award. On appeal, the Supreme Court held that; (1)
under either complicity theory or vicarious liability rule, evidence which indicated that hotel
gave its security guards wide latitude in dealing with unescorted females who were not
registered guests supported jury's award, and (2) prejudgment interest on punitive damage
award was improper.
Beckley, Singleton, DeLanoy & Jemison; Frances A. Forsman; and Daniel F. Polsenberg,
Las Vegas, for Appellant.
Marilyn V. Romanelli, Las Vegas, for Respondent.
1. Damages; Master and Servant.
Under either complicity theory or vicarious liability rule, evidence which indicated that hotel gave its
security guards wide latitude in dealing with unescorted females who were not registered guests supported
jury's verdict awarding female, who alleged that hotel's security guards pushed her down flight of stairs,
$15,000 for intentional infliction of emotional distress and battery, and $10,000 as punitive damages.
2. Interest.
Prejudgment interest is viewed as compensation for use by defendant of money to which plaintiff is
entitled from time cause of action accrues until time of judgment; it is not designed as a penalty.
3. Damages.
Plaintiff is never entitled to punitive damages as a matter of right; their allowance or denial rests entirely
in discretion of trier of fact.
4. Interest.
Award of prejudgment interest on punitive damages award was improper, as amount of punitive damages
to be awarded is not known until judgment is rendered.
OPINION
Per Curiam:
This appeal arises out of an altercation between respondent and two security guards
employed by appellant hotel.
two security guards employed by appellant hotel. Following a trial on the merits, the jury
awarded $15,000 in compensatory damages and $10,000 in punitive damages to respondent.
Prejudgment interest on the entire award was granted by the trial court. For the reasons set
forth below, we affirm the award of compensatory and punitive damages; however, we
reverse the grant of prejudgment interest on the punitive damage portion of the award.
Respondent was employed by an escort service. According to her, it was her job to visit
potential clients and arrange an escort for them if possible. In order to see these potential
clients, respondent claimed she often had to go to their hotel rooms. At the time of the
incident, respondent was preparing to leave appellant's hotel after having just completed one
such run. Respondent was approached by a hotel security guard as she was waiting for an
elevator to return to the casino. The parties' versions of respondent's fall differ greatly;
however, the jury accepted respondent's contention that she had been pushed down a flight of
stairs by security guards employed by appellant. The jury ordered appellant to pay respondent
compensatory damages of $15,000 for intentional infliction of emotional distress and battery
and $10,000 as punitive damages. Pursuant to NRS 17.130(2)
1
, the trial court awarded
prejudgment interest to respondent on the entire $25,000 award.
Appellant hotel contends that punitive damages may not be assessed against an employer
for an act of his employee unless the employer either (1) authorized the act or (2) ratified or
approved of the act resulting in an award of punitive damages. See Restatement (Second) of
Torts 909 (1979). This is otherwise known as the complicity theory. Respondent, on the
other hand, maintains that an employer is vicariously liable for acts of an employee which
give rise to an award of punitive damages if the employee was acting within the scope of his
employment. See Forrester v. S.P. Co., 36 Nev. 247, 134 P. 753 (1913). This is known as the
vicarious liability rule.
[Headnote 1]
Appellant asked for and received, over objection, a jury instruction predicated on the
complicity theory; therefore, the jury was instructed in accordance with appellant's view of
the law. There was evidence in the record indicating that appellant gave its security wide
latitude in dealing with unescorted females who were not registered guests.
____________________

1
NRS 17.130(2) provides that:
When no rate of interest is provided by contract or otherwise by law, or specified in the judgment, the
judgment draws interest at the rate of 12 percent per annum from the time of service of the summons and
complaint until satisfied, except for any amount representing future damages, which draws interest at that
rate only from the time of the entry of the judgment until satisfied.
gave its security wide latitude in dealing with unescorted females who were not registered
guests. Because there was substantial evidence to support the jury's verdict under either the
complicity theory or the vicarious liability rule, we will not overturn the judgment on appeal.
See Udevco, Inc. v. Wagner, 100 Nev. 185, 678 P.2d 679 (1984).
[Headnotes 2-4]
However, the award of prejudgment interest on the punitive damage award was clearly
erroneous. Prejudgment interest is viewed as compensation for use by defendant of money to
which plaintiff is entitled from the time the cause of action accrues until the time of
judgment; it is not designed as a penalty. Haskins v. Sheldon, 558 P.2d 487, 494 (Alaska
1976). A plaintiff is never entitled to punitive damages as a matter of right; their allowance or
denial rests entirely in the discretion of the trier of fact. Nevada Cement Co. v. Lemler, 89
Nev. 447, 451, 514 P.2d 1180 (1973). Therefore, the amount of punitive damages to be
awarded cannot be ascertained until the trier of fact has heard all the evidence. Because the
amount of punitive damages to be awarded is not known until the judgment is rendered, we
hold that prejudgment interest may not be granted by a trial court on punitive damage awards.
Accordingly, we affirm the judgment of the trial court with respect to the award of
compensatory and punitive damages; however, we reverse that part of the judgment which
grants prejudgment interest on the punitive damage portion of the award.
____________
101 Nev. 827, 827 (1985) Schouweiler v. Yancey Co.
BART SCHOUWEILER, LORETTA STARBUCK, JUDITH E. McELWEE, CHARLES A.
COUCH, GREGORY PISANI and FLORENCE M. STERNAD, on Behalf of Themselves
and Other Property Owners of BAKER PLACE CONDOMINIUM HOMEOWNERS
ASSOCIATION, a Non-Profit Corporation, Appellants and Cross-Respondents, v. YANCEY
COMPANY, a California Corporation; FRED HARRELL and HIGHLAND
INVESTMENTS, INC., a Nevada Corporation; DAVID JACOBSON ASSOCIATES, INC., a
California Corporation, Respondents, and MURPHY BROS. CONSTRUCTION CO., a
Nevada Corporation; CAVALLERO HEATING AND AIR CONDITIONING, INC., a
Nevada Corporation, Respondents and Cross-Appellants.
No. 15775
December 31, 1985 712 P.2d 786
Appeal and cross-appeals from special order after final judgment; Second Judicial District
Court, Washoe County; Richard C. Minor, Judge.
Class of condominium owners brought suit against six defendants for negligent design and
construction of condominium project. Following jury trial, the owners prevailed against three
of the defendants, and the district court made rulings on several postjudgment motions
regarding attorney fees and costs, from which appeal and cross-appeals were taken. The
Supreme Court held that: (1) judgment recovered by class was not to be divided among the
class for purposes of determining entitlement to attorney fees under statute allowing attorney
fees to prevailing plaintiff who has not recovered more than $10,000; (2) costs of the
prevailing defendants, which were taxed against plaintiff owners could be recovered by
plaintiffs from the losing defendants; (3) there is no exemption for class actions from rule
allowing award of attorney fees against offeree who fails to obtain judgment more favorable
than pretrial offer of judgment; (4) amount of offer of judgment is not relevant to the amount
of a reasonable award of attorney fees; and (5) it had to be presumed that the district court
was correct in certain rulings absent inclusion of trial transcript in the record.
Durney & Brennan, Reno, for Appellants and Cross-Respondents.
Nancyann Leeder, Reno, for Respondent Yancey Company.
C. Coe Swobe, Reno, for Respondents Fred Harrell and Highland Investments, Inc.
Vargas & Bartlett and Philip W. Bartlett, Reno, for Respondent David Jacobson
Associates, Inc.
Mackenroth, Seley, Chaffin & Anwyl and Claudia J. Robinson, Sacramento; Jon Douglas
Benson and Paul E. Haefner, Reno, for Respondent and Cross-Appellant Murphy Bros.
Construction Co.
Barker, Gillock & Perry and Ken Bick, Reno, for Respondent and Cross-Appellant
Cavallero Heating and Air Conditioning, Inc.
1. Costs.
Under NRS 18.010 allowing award of attorney fees where plaintiff has not recovered more than
$10,000, thirty-eight condominium owners who recovered judgment of $196,389.22 in class action from
companies found liable for design and construction defects were not entitled to award of attorney fees on
the theory that the total award should be divided among the members of the class so that the judgment per
class member was less than $10,000.
In absence of express findings of fact and conclusions of law by the trial court in denying motion for
expert witness fees in excess of $750, Supreme Court had to rely on examination of the record to see if trial
court's decision constituted abuse of discretion, and where the trial transcript was not part of the record on
appeal, it had to be presumed that denial of excess fees was correct. NRS 18.005, 18.005, subd. 5.
3. Costs.
Where plaintiffs recovered judgment against three of six defendants, costs of the prevailing defendants
which were taxed against the plaintiffs could be recovered by plaintiffs from the losing defendants. NRS
18.020, 18.020, subd. 3.
4. Costs.
Class actions are not exempt from provision of NRCP 68 for award of attorney fees following pretrial
offer of judgment if judgment finally obtained by offeree is not more favorable than the offer, despite
claimed difficulty inherent in notifying members of large class of a settlement offer within the allotted ten
days.
5. Costs.
It is within the discretion of trial judge to allow attorney fees pursuant to NRCP 68, based on failure of
offeree to obtain a judgment more favorable than pretrial offer of judgment, and in exercising that
discretion the trial court must evaluate whether plaintiff's claim was brought in good faith, whether
defendant's offer of judgment was brought in good faith both in timing and amount, whether plaintiff's
decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith, and whether fees
sought by offeror are reasonable and justified in amount.
Award of attorney fees to defendant who prevailed at trial after making pretrial offer of judgment was not
subject to being disturbed on appeal where it could be said that the trial court's exercise of discretion was
arbitrary or capricious. NRCP 68.
7. Costs.
Amount of offer of judgment is not relevant to a reasonable award of attorney fees under NRCP 68
based on failure of offeree to obtain judgment more favorable than pretrial offer of judgment.
It had to be presumed on appeal that district court was correct in denying motions to alter judgment from
joint and several liability to several liability and in accordingly denying attorney fees to one defendant on
ground that the joint judgment was more than its pretrial offer of judgment, where transcript was not
contained in the record on appeal.
OPINION
Per Curiam:
Appellants (Homeowners), a class of condominium owners, brought suit against the
respondents for the negligent construction of the Baker Place Condominium project.
Homeowners allege that each defendant was in some way responsible for the numerous
design and construction defects present in the project including (1) faulty roofing; (2) faulty
heating, ventilation, and air conditioning system; (3) faulty paving throughout the project; (4)
negligent installation of water service lines to each unit; and (5) negligent installation of cold
water piping within chimney enclosures.
After a jury trial on the merits, Homeowners prevailed against Murphy Bros. Construction
Co. (Murphy Bros.), Yancey Company (Yancey), and David Jacobson Associates, Inc.
(Jacobson). The jury found the three remaining defendants, Cavallero Heating and Air
Conditioning, Inc. (Cavallero), Highland Investments, Inc., and Fred Harrell, to be free from
liability; accordingly, judgment was entered in favor of these defendants against
Homeowners.
The appeal and cross-appeals challenge the district court's decisions on several
post-judgment motions regarding attorney's fees and costs.
HOMEOWNERS' APPEAL
I. Homeowners' motion for attorney's fees
pursuant to NRS 18.010.
[Headnote 1]
Attorney's fees may be awarded to a prevailing plaintiff only if he or she recovers $10,000
or less. See NRS 18.010.
1
Homeowners made a motion to recover their attorney's fees from
Murphy Bros.,
____________________

1
NRS 18.010 states in relevant part:
2. The court may make an allowance of attorney's fees to:
(a) The plaintiff as prevailing party when the plaintiff has not recovered more than $10,000;
Bros., Yancey, and Jacobson following the entry of judgment for Homeowners. The district
court found NRS 18.010 to be inapplicable because the judgment that Homeowners received,
$196,389.22, was well above the $10,000 statutory ceiling. Homeowners contend that the
total award should be divided among the thirty-eight members of the class; therefore,
Homeowners compute the judgment to be $5,168.14 per class member. Because each plaintiff
recovered less than $10,000, Homeowners argue they are entitled to attorney's fees as
authorized by NRS 18.010.
Homeowners base this contention on the nature of condominium ownership. Homeowners
note that only the individual homeowners have standing to bring this action. See Deal v. 999
Lakeshore Association, 94 Nev. 301, 579 P.2d 775 (1978). Also, since each Homeowner is
liable for a 1/38th share of the common area expenses, Homeowners maintain each plaintiff is
entitled to possess an individual 1/38th share of the judgment.
Even assuming, arguendo, that each Homeowner is entitled to possess a share of the
judgment, it does not necessarily follow that individual shares govern the application of NRS
18.010. It is well established in Nevada that attorney's fees are not recoverable unless allowed
by express or implied agreement or when authorized by statute or rule. Sun Realty v. District
Court, 91 Nev. 774, 776, 542 P.2d 1072 (1975). This court has also held it is the total
judgment that governs and where the amount recovered exceeds the statutory limit of $10,000
the court may not grant an award of attorney's fees. Peterson v. Freeman, 86 Nev. 850, 856,
477 P.2d 876 (1970).
NRS 18.010 does not authorize a court to divide the total judgment by the number of
prevailing litigants. This court has previously held in the absence of legislation specifically
providing for attorney's fees, such fees cannot be awarded. . . . (Emphasis added.)
Consumers League v. Southwest Gas, 94 Nev. 153, 157-158, 576 P.2d 737 (1978). It is for
the legislature, and not this court, to make a special provision for class actions within NRS
18.010. Accordingly, we hold that the district court was correct in denying the award of
attorney's fees pursuant to NRS 18.010.
2
II.
____________________

2
We also conclude that the purpose of the rule is not furthered by Homeowners' construction of the statute.
Presumably the legislative intent behind the enactment of NRS 18.010 was to aid litigants who might forego suit
because the costs of litigation would outweigh their potential recovery. Litigants with claims worth less than
$10,000 are therefore encouraged to pursue meritorious suits. Homeowners, however, did not hire thirty-eight
attorneys to file thirty-eight separate suits; they filed as a class. Their claims arose out of a single situation, the
negligent construction of the project, requiring their attorney to prepare for only one set of facts for the entire
class. In this context, we conclude that consideration of the judgment as a whole was proper.
II. Homeowners' motion for expert witness fees in excess
of $750 pursuant to NRS 18.005(5).
18.005 Costs defined. For the purposes of NRS 18.010 to 18.150, inclusive,
the term costs means:
. . .
5. Reasonable fees of not more than five expert witnesses in an amount of not
more than $750 for each witness, unless the court allows a larger fee after
determining, pursuant to a hearing, that the circumstances surrounding the
expert's testimony were of such necessity as to require the larger fee.
At the conclusion of the jury trial, Homeowners requested that the district court approve fees
in excess of $750 for four expert witnesses.
3
The district court refused Homeowners' request
without stating its reasons for so doing. Homeowners maintain that it was an abuse of
discretion for the trial court to decide the issue without stating its reasons in the decision.
[Headnote 2]
In the absence of express findings of fact and conclusions of law by the trial court, this
court must rely on an examination of the record to see if the trial court's decision constitutes
an abuse of discretion. See Pagni v. City of Sparks, 72 Nev. 41, 44, 293 P.2d 421 (1956). The
trial transcript was not part of the record on appeal; therefore, we cannot evaluate the
necessity of the experts' testimony. Traditionally, when evidence on which the lower court's
judgment rests is not included in the record on appeal, it is assumed that the record supports
the district court's findings. Bates v. Chronister, 100 Nev. 675, 679, 691 P.2d 865 (1984).
See also Stover v. Las Vegas Int'l Country Club, 95 Nev. 66, 68, 589 P.2d 671 (1979).
Therefore, we must presume the district court's denial of excess expert witness fees pursuant
to NRS 18.005(5) was correct.
III. Homeowners' motion to pass prevailing defendants'
costs through to losing defendants.
[Headnote 3]
Costs must be allowed of course to the prevailing party in any action in which plaintiff
seeks the recovery of money or of damages in excess of $1250
4
; these costs are to be borne
by any adverse party against whom judgment is rendered.
____________________

3
Homeowners incurred the following expenses for expert witnesses:
William C. Buckeley................................................ $1,660.00
Michael D. Blakely.................................................. $7,872.19
Ronald P. Mentgen..................................................$1,462.50
James Nichols.......................................................... $2,944.39

4
This amount has been amended to read $2500. See (1985) Nev. Stats. ch. 534, 3 at 1622. This amendment
has no effect on the outcome of this appeal.
adverse party against whom judgment is rendered. NRS 18.020(3). This award of costs is
mandatory. See Randono v. Turk, 86 Nev. 123, 133, 466 P.2d 218 (1970).
Judgment was entered against Yancey, Murphy Bros., and Jacobson (the losing
defendants) in favor of Homeowners; therefore, Homeowners prevailed against these
defendants. Because the prevailing defendants, Cavallero, Harrell, and Highland Investments,
are allowed to tax their costs against Homeowners pursuant to NRS 18.020, these costs
become costs incurred by Homeowners. Accordingly, we conclude that the costs of the
prevailing defendants may be recovered by Homeowners from the losing defendants pursuant
to NRS 18.020.
5

IV. Cavallero's motion to recover attorney's fees pursuant
to Nevada Rule of Civil Procedure 68.
[Headnote 4]
The district court awarded attorney's fees to Cavallero pursuant to Nevada Rule of Civil
Procedure 68 which provides in relevant part:
At any time more than 10 days before the trial begins, a party defending against a
claim may serve upon the adverse party an offer to allow judgment to be taken against
him. . . . If within 10 days after the service of the offer the adverse party serves written
notice that the offer is accepted, either party may then file the offer and notice of
acceptance together with proof of service thereof and thereupon the clerk shall enter
judgment. . . . If the judgment finally obtained by the offeree is not more favorable than
the offer, the offeree shall not recover costs, nor attorney's 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.
Cavallero made an offer of judgment in the amount of $8,500 to Homeowners twelve days
before trial began.
6
Homeowners did not prevail against Cavallero at the trial's conclusion;
therefore, Cavallero sought and was awarded attorney's fees from Homeowners pursuant
to Rule 6S.
____________________

5
Harrell and Highland Investments seek $1500 pursuant to Nevada Rule of Appellate Procedure 38 because
they assert Homeowners' appeal as to this issue was frivolous. This appeal was not so frivolous as to warrant
sanctions as in the case In re Herrmann, 100 Nev. 149, 679 P.2d 246 (1984).

6
It is true that all the defendants, including Cavallero, joined in an offer of judgment of $185,000 given to
Homeowners' counsel eleven days before trial began. The wording of this second offer (This is a joint offer on
behalf of all defendants herein and, if accepted, supercedes [sic] any other offer, whether previously accepted or
not, made by any individual defendant.) (emphasis added) seems to make it clear that Cavallero's offer would
only be superseded if this second offer was accepted.
Cavallero sought and was awarded attorney's fees from Homeowners pursuant to Rule 68.
Homeowners argue that class actions are excluded from Rule 68 because of the difficulty
inherent in notifying members in a large class of a settlement offer within the allotted ten
days. There is no express exemption for class actions in Rule 68, and we decline to create
such an exemption.
[Headnote 5]
It is within the discretion of the trial court judge to allow attorney's fees pursuant to Rule
68. See Armstrong v. Riggi, 92 Nev. 280, 281, 549 P.2d 753 (1976). In exercising that
discretion, the trial court must evaluate the following factors: (1) whether plaintiff's claim
was brought in good faith; (2) whether defendant's offer of judgment was brought in good
faith in both its timing and amount; (3) whether plaintiff's decision to reject the offer and
proceed to trial was grossly unreasonable or in bad faith; and (4) whether fees sought by the
offeror are reasonable and justified in amount. Beattie v. Thomas, 99 Nev. 579, 588, 668 P.2d
268 (1983).
[Headnote 6]
In this case, the trial court evaluated the necessary factors. Unless the trial court's exercise
of discretion is arbitrary or capricious, this court will not disturb the lower court's ruling on
appeal. See French v. French, 91 Nev. 248, 253, 533 P.2d 1357 (1975). We cannot say that
the trial court was arbitrary or capricious in this instance. Therefore, the district court did not
err in allowing Cavallero to recover its attorney's fees from Homeowners.
CAVALLERO CROSS-APPEAL
[Headnote 7]
While the trial court properly exercise its discretion in awarding attorney's fees to
Cavallero pursuant to Rule 68, it did not consider the proper factors in fixing the amount to
be awarded. The district court stated that in view of the amount of the offer ($8,500.00), the
amount of recovery for attorney's fees will be limited to $5,000.00. We conclude, however,
that the amount of the offer of judgment is not relevant to a reasonable award of attorney's
fees.
We have previously outlined the proper factors to consider in a discretionary award of
attorney's fees: (1) the qualities of the advocate: his ability, training, education, experience,
professional standing and skill; (2) the character of the work to be done: its difficulty,
intricacy, importance, the time and skill required, the responsibility imposed and the
prominence and character of the parties when they affect the importance of the litigation;
{3) the work actually performed by the lawyer: the skill, time and attention given to the
work; and {4) the result: whether the attorney was successful and what benefits were
derived.
the parties when they affect the importance of the litigation; (3) the work actually performed
by the lawyer: the skill, time and attention given to the work; and (4) the result: whether the
attorney was successful and what benefits were derived. Brunzell v. Golden Gate Nat'l Bank,
85 Nev. 345, 349, 455 P.2d 31 (1969) (quoting Schwartz v. Schwerin, 336 P.2d 144, 146
(Ariz. 1959)).
Because the district court based its award on the amount of the offer of judgment and not
the factors listed in Brunzell, we remand this matter to the district court with instructions to
reevaluate the award in light of the proper factors.
MURPHY BROS. CROSS-APPEAL
The jury found respondents Murphy Bros. and Jacobson each 50 percent liable on
Homeowners' claim of negligent paving design and construction. The district court, in
entering judgment on the verdict, found Murphy Bros. and Jacobson to be jointly and
severally liable on the $50,230 verdict. Murphy Bros.' motion to alter the judgment from
joint and several liability to several liability was denied.
The motion to alter the judgment, in addition to reducing Murphy Bros.' liability on the
judgment, was also crucial to Murphy Bros.' motion for attorney's fees against Homeowners
under Rule 68. Murphy Bros. made an offer of judgment for $30,000 to Homeowners in
compliance with Rule 68. If Murphy Bros. is severally liable for one-half of $50,230,
$25,115, Murphy Bros. might be entitled to attorney's fees pursuant to Rule 68; however, if
Murphy Bros. is jointly and severally liable for $50,230, it cannot collect attorney's fees from
Homeowners under Rule 68 because its offer was less than Homeowners' recovery.
[Headnote 8]
Homeowners maintain that Murphy Bros. and Jacobson acted in concert in negligently
performing the paving contract. On the other hand, Murphy Bros. argues that it completed the
project according to Jacobson's design and specifications, and that it and Jacobson cannot be
found jointly liable because their tortious conduct was independent and separate of each
other. See Blaisdell v. Stephens, 14 Nev. 17 (1879). However, because we do not have the
trial transcript before us, we must assume the district court was correct in assigning liability
between Jacobson and Murphy Bros. Bates v. Chronister, 100 Nev. 675, 677, 691 P.2d 865
(1984). Therefore, we presume that the district court was correct in denying Murphy Bros.'
motions to alter the jury verdict and for attorney's fees pursuant to Rule 68.
Accordingly, we affirm the judgment of the trial court with the exception of the amount of
attorney's fees awarded to Cavallero.
We remand this issue to the trial court with instructions to evaluate the amount of attorney's
fees to be awarded in light of the factors set out in this opinion.
____________
101 Nev. 835, 835 (1985) Palevac v. Mid Century
RICHARD D. PALEVAC and NANCY PALEVAC, Appel-
lants, v. MID CENTURY NON AUTO, Respondent.
No. 16253
December 31, 1985 710 P.2d 1389
Appeal from an order and judgment granting respondent's motion for summary judgment.
Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Surety filed complaint against indemnitors for their failure to indemnify after it had paid a
third party pursuant to the surety bond. The district court granted summary judgment to
surety, and indemnitors appealed. The Supreme Court held that there were genuine issues,
precluding summary judgment, as to whether surety notified indemnitors before paying the
third party and whether such payments were voluntary.
Edward G. Marshall, Las Vegas, for Appellants.
Joseph L. Benson, Las Vegas, for Respondent.
Where surety indemnitee does not notify principal indemnitor before paying third party under indemnity
bond, surety indemnitee has no right to recover against principal indemnitor under the general indemnity
agreement for nonobligatory or voluntary payments made to third party under surety bond.
Surety indemnitee had an obligation to notify principal indemnitor before paying third party under surety
bond because surety bond and general indemnity agreements were executed together.
3. Judgment.
In action by surety on indemnity agreement, there were genuine issues, precluding summary judgment, as
to whether surety notified indemnitor before paying third party under surety bond, and whether such
payments were nonobligatory or voluntary. NRCP 56.
OPINION
Per Curiam:
This is an appeal from an order and judgment granting respondent's motion for summary
judgment.
In 1978, appellant Richard D. Palevac (Palevac), Donald D. Ferderer (Ferderer), and R. J.
Robinson (Robinson) were the sole shareholders of Las Vegas Hosts, Inc. and New Horizons
Travel, Inc., two Nevada corporations operating two travel agencies in Las Vegas.
As most of the business carried on by the two travel agencies was conducted over long
distance telephone lines, the travel agencies applied to Central Telephone Company (Centel)
for several WATS lines.
Before it would install those WATS lines, Centel required the individual shareholders of
the two travel agencies to personally indemnify Centel for any charges incurred to Centel by
the two travel agencies. Toward that end, on September 11, 1978, the two documents relevant
to the instant appeal were executed: first, a Surety Bond under which respondent Mid Century
Non Auto (Mid Century) agreed to pay all just bills incurred by the two travel agencies to
Centel; and second, a General Indemnity Agreement under which Palevac agreed to pay Mid
Century certain premiums and to indemnify Mid Century against any claim, demand,
liability, cost, charge, counsel fee, expense, suit, order, judgment, and adjudication incurred
by Mid Century as a consequence of the Surety Bond. The General Indemnity Agreement
further provided that in the event of payment by the Surety the Indemnitor agrees to accept
the voucher or other evidence of such payment as prima facie evidence of the propriety
thereof and of the Indemnitor's liability therefor to the Surety.
1

In late 1979 or early 1980, a dispute arose between Centel and the two travel agencies.
Centel and Mid Century assert that the two travel agencies failed to pay $35,198.66 owed to
Centel. Palevac, however, asserts that the two travel agencies never owed Centel $35,198.66.
In an affidavit accompanying Palevac's opposition to Mid Century's motion for summary
judgment, Ferderer, who was president and principal officer of the two travel agencies, stated
that the travel agencies never owed Centel $35,198.66. Ferderer swore in his affidavit that the
disputed $35,198.66 was the amount due for service for WATS lines that Ferderer had
instructed Centel to disconnect. Ferderer also asserted that each year, during the holidays, due
to a decrease in telephone business, Ferderer instructed Centel to disconnect several WATS
lines. Ferderer swore that during the year in which the dispute arose, though Ferderer
instructed Centel to disconnect several WATS lines, Centel failed to do so. Ferderer alleged
that Centel employees assured him on numerous occasions that the WATS lines would be
disconnected.
____________________

1
Apparently, Ferderer and Robinson executed similar General Indemnity Agreements.
WATS lines would be disconnected. Finally, Ferderer claims that, once it appeared that the
WATS lines had not been disconnected, Centel employees assured him that the travel
agencies would not be billed for the lines that he had instructed Centel to disconnect.
In early 1980, Centel billed the two travel agencies $35,198.66. When the travel agencies
did not pay the bill, Centel disconnected all of the travel agencies' telephones, and the travel
agencies went out of business. On March 31, 1980, a credit representative from Centel made
a claim against Mid Century under the Surety Bond for $35,198.66. On June 19, 1980, Mid
Century delivered a check to Centel for $18,650.00, the limit to which Mid Century had
obligated itself under the Surety Bond.
Mid Century then initiated the instant action by filing a complaint against the three owners
of the travel agencies. That complaint alleged that the owners had breached their respective
General Indemnity Agreements by failing to indemnify Mid Century for the $18,650.00 that
Mid Century had paid to Centel pursuant to the Surety Bond. Ferderer was not served with
process and, thus, was not a party to the original action. After Palevac and Robinson had
answered Mid Century's complaint, Mid Century filed its motion for summary judgment,
which the district court granted. Robinson is not a party to the instant appeal.
Palevac asserts that the district court erred in granting Mid Century's motion for summary
judgment. We agree. We therefore reverse and remand to the district court for further
proceedings consistent with this opinion.
[Headnotes 1, 2]
Where a Surety Bond and a General Indemnity Agreement are executed together, the
Surety/Indemnitee has an obligation to notify the Principal/Indemnitor before paying a third
party under the Surety Bond. Fidelity & Casualty Co. of New York v. McNamara, 36 S.E.2d
402 (W.Va. 1945). Where the Surety/Indemnitee does not so notify the Principal/Indemnitor,
the Surety/Indemnitee has no right to recover against the Principal/Indemnitor under the
General Indemnity Agreement for non-obligatory or voluntary payments made to a third party
under the Surety Bond. Land Resources Development v. Kaiser Aetna, 100 Nev. 29, 676 P.2d
235 (1984); Carson Opera House Ass'n v. Miller, 16 Nev. 327 (1881); Jones v. Childs and
Vansickle, 8 Nev. 121 (1872). In the instant case, Mid Century, the Surety/Indemnitee, had an
obligation to notify Palevac, the Principal/Indemnitor, before paying Centel under the Surety
Bond. If Mid Century did not so notify Palevac, Mid Century has no right to recover against
Palevac under the General Indemnity Agreement for nonobligatory or voluntary payments
made to Centel under the Surety Bond.
for nonobligatory or voluntary payments made to Centel under the Surety Bond.
Summary judgment under NRCP 56 is appropriate only when the moving party is entitled
to judgment as a matter of law, where it is quite clear what the truth is, and where no genuine
issue remains for trial. In the Matter of the Las Vegas Hilton Hotel Fire Litigation, 101 Nev.
489, 706 P.2d 137 (1985).
[Headnote 3]
Mid Century is not entitled to judgment as a matter of law. Genuine issues remain for trial:
namely, whether Mid Century notified Palevac before paying Centel under the Surety Bond
and whether the payments Mid Century made to Centel under the Surety Bond were
nonobligatory or voluntary. Therefore, the district court erred in granting Mid Century's
motion for summary judgment.
We therefore reverse and remand to the district court for further proceedings consistent
with this opinion.
____________
101 Nev. 838, 838 (1985) Culley v. County of Elko
NORMAN L. CULLEY and MARY LOUISE CULLEY, Husband and Wife; EVERETT
DEAN GUSTIN and LOIS LOUISE GUSTIN, Husband and Wife; LOUIS G. NELSON;
JOHN E. TURNER and MARGARET JEAN TURNER, Husband and Wife; MARY L.
TURNER; and JUDY DAVIS, Administratrix of the ESTATE OF JOE H. LESTER, SR.,
Appellants, v. THE COUNTY OF ELKO and THE CITY OF ELKO, Both Political
Subdivisions of the State of Nevada, Respondents.
No. 16368
December 31, 1985 711 P.2d 864
Appeal from an order and judgment granting respondents' motion for involuntary
dismissal. Fourth Judicial District Court, Elko County; Joseph O. McDaniel, Judge.
Landowners adjacent to airport sued city and county for nuisance and inverse
condemnation following extension of airport runway. The district court dismissed.
Landowners appealed. The Supreme Court held that trial court erred in dismissing both
causes of action.
Glade L. Hall, Reno, for Appellants.
Barbara Inama, James H. Copenhaver, and Goicoechea & DiGrazia, Elko, for
Respondents.
1. Eminent Domain.
Trial court in inverse condemnation action was required to make determination that substantial
impairment of access to homes was not established as a matter of law based on evidence presented at trial,
and not on judge's personal observation of access road.
2. Eminent Domain.
Landowners in action for inverse condemnation arising out of extension of airport runway presented
sufficient case for court or jury, and, thus trial court erred in holding as a matter of law that landowners
failed to established substantial impairment of access. NRCP 41(b).
3. Aviation.
Landowners in nuisance action arising out of extension of airport runway presented sufficient case for
court or jury, and, thus, trial court erred in holding as a matter of law that landowners failed to establish
substantial and unreasonable intentional interference with use and enjoyment of property. NRCP 41(b).
4. Aviation.
Testimony that extension of airport runway did not reduce fair market value of landowners' property
which was zoned for commercial not residential use applied to landowners' action for inverse
condemnation and, thus, did not justify dismissal of nuisance claim.
5. Aviation.
Airport owners' minutes of meetings which showed knowledge of impact of runway's extension on
landowners' property were relevant to whether extension of runway created substantial and unreasonable
intentional interference with landowners' use and enjoyment of their property and, thus, to nuisance cause
of action. NRS 48.025.
OPINION
Per Curiam:
This is an appeal from an order and judgment granting respondents' motion for involuntary
dismissal pursuant to NRCP 41(b) of appellants' inverse condemnation and nuisance action
against respondents.
Appellants are owners of six adjoining parcels of real property (the subject properties)
situated adjacent to the northwest corner of the Elko Municipal Airport (the airport)
runway. Though the subject properties are commercially zoned, the appellants reside in
residences located on their respective parcels.
Prior to 1983, the airport runway was approximately 1,000 feet from the nearest
contiguous subject property. Access to the subject properties was by a road that connected
directly to the U.S. Highway 40.
In 1983, respondents extended the airport runway 1,300 feet. After the extension, the
runway was approximately sixty feet from the nearest contiguous subject property.
from the nearest contiguous subject property. Furthermore, the extension of the airport
runway cut off appellants' access road. Respondents provided appellants with a different,
dusty, less convenient, and more circuitous access road.
As a result of the extension of the airport runway, appellants filed a complaint in nuisance
and inverse condemnation against respondents. The case was tried before a jury.
At trial, appellants testified that the extension of the airport runway caused increased
levels of noise, dust, fumes, and vibration. Appellants also testified that the extension of the
airport runway caused them fear and apprehension due to frequent low and direct overflights
and several recent crashes and near misses. Finally, appellants testified that the relocation of
their access road inconvenienced them.
Appellants' expert real estate appraiser testified that the replacement of the direct access
road with the circuitous access road diminished the fair market value of the subject properties
by fifty percent. Appellants' expert real estate appraiser also testified that because the highest
and best use of the subject properties is commercial and not residential, the increased noise,
dust, fumes, and vibration caused by the extension of the airport runway did not reduce the
fair market value of the subject properties.
After two-and-a-half days of trial, the trial judge, after telling counsel that he was going to
do so, drove, unaccompanied by counsel, to the subject properties and inspected the subject
properties and the new access road. The next morning, appellants concluded the presentation
of their case-in-chief. Respondents thereafter moved for involuntary dismissal of appellants'
complaint pursuant to NRCP 41(b) on the grounds that upon the facts and the law appellants
had failed to prove a sufficient case for the court or the jury. The trial court issued an order
and judgment granting respondents' motion.
Appellants first argue that the district court erred in dismissing appellants' inverse
condemnation cause of action. We agree.
Appellants' inverse condemnation cause of action was premised upon the theory that the
extension of the airport runway cut off appellants' old, direct access road and forced
appellants to rely upon a different, dusty, less convenient, and more circuitous access road.
The success of such a claim depends upon the property owner's ability to demonstrate
substantial impairment of access. State ex rel. Dep't Hwys. v. Linnecke, 86 Nev. 257, 468
P.2d 8 (1970).
[Headnote 1]
The district court correctly held that the court must determine whether substantial
impairment of access has been established as a matter of law in inverse condemnation
cases.
a matter of law in inverse condemnation cases. Lied v. Clark County, 94 Nev. 257, 579 P.2d
171 (1978); State ex rel. Dep't Hwys. v. Linnecke, 86 Nev. 257, 468 P.2d 8 (1970). However,
the district court incorrectly based its determination that substantial impairment of access had
not been established as a matter of law in part on the district court judge's view of the new
access road. The district court determination whether substantial impairment of access has
been established as a matter of law must be based upon the evidence presented at trial.
[Headnote 2]
A district court may grant a NRCP 41(b) motion for involuntary dismissal when,
interpreting the evidence presented at trial in the light most favorable to plaintiff, upon the
facts and the law the plaintiff has failed to prove a sufficient case for the court or jury.
Shepard v. Harrison, 100 Nev. 178, 678 P.2d 670 (1984). Interpreting the evidence presented
at trial in the light most favorable to appellants, the district court could not properly have held
that substantial impairment of access had not been established as a matter of law. At trial,
appellants testified that the relocation of their access road caused them significant
inconvenience. And appellants' expert real estate appraiser testified that the replacement of
the direct access road with the circuitous access road diminished the fair market value of the
subject properties by fifty percent. Consequently, we hold that the district court erred in
dismissing appellants' inverse condemnation cause of action.
Appellants next argue that the district court erred in dismissing appellant's nuisance cause
of action. We agree.
[Headnotes 3, 4]
An actionable nuisance is an intentional interference with the use and enjoyment of land
that is both substantial and unreasonable. Jezowski v. City of Reno, 71 Nev. 233, 286 P.2d
257 (1955). Appellants presented considerable evidence at trial of respondents' substantial
and unreasonable intentional interference with appellants' use and enjoyment of their land.
Appellants testified that the extension of the airport runway caused significantly increased
levels of noise, dust, fumes, and vibration. Appellants also testified that the extension of the
airport runway caused them significant fear and apprehension due to frequent low and direct
overflights and several recent crashes and near misses. Interpreting the evidence presented at
trial in the light most favorable to appellants (Shepard v. Harrison, 100 Nev. 178, 678 P.2d
670 (1984)), the district court could not properly have held that appellants had failed to
demonstrate respondents' substantial and unreasonable intentional interference with
appellants' use and enjoyment of their land.
enjoyment of their land. Consequently, we hold that the district court erred in dismissing
appellants' nuisance cause of action.
1

Finally, appellants argue that the district court erred in excluding from evidence on
relevancy grounds the minutes of various meetings of the Elko Board of Supervisors. We
agree.
[Headnote 5]
The minutes of the various meetings of the Elko Board of Supervisors excluded from
evidence by the district court on relevancy grounds show that respondents recognized the
impact on the subject properties of the extension of the airport runway; that the purpose of the
extension of the airport runway was, in part, to shift the adverse impact of the airport
operations away from downtown Elko and onto the subject properties; that respondents
intended to acquire the subject properties because of the adverse impact on the subject
properties of the extension of the airport runway; and that respondents refused to acquire the
subject properties after the extension of the airport runway. This evidence is relevant to
whether the extension of the airport runway created a substantial and unreasonable intentional
interference with appellants' use and enjoyment of their property and, thus, to appellants'
nuisance cause of action. Consequently, we hold that the district court erred in excluding this
evidence. NRS 48.025.
We therefore reverse and remand for further proceedings consistent with this opinion.
____________________

1
The district court based its decision to dismiss appellants' nuisance cause of action on the testimony of
appellants' expert real estate appraiser that, because the highest and best use of the subject properties is
commercial and not residential, the increased noise, dust, fumes, and vibration caused by the extension of the
airport runway did not reduce the fair market value of the subject properties. This testimony was directed toward
appellants' inverse condemnation cause of action. So long as appellants are able to demonstrate substantial and
unreasonable intentional interference with their use and enjoyment of their land, it is irrelevant to appellants'
nuisance cause of action that the interference did not reduce the fair market value of their property.
____________
101 Nev. 843, 843 (1985) Clark Cty. Dist. Atty. v. District Court
OFFICE OF THE CLARK COUNTY DISTRICT ATTORNEY, ROBERT J. MILLER,
District Attorney, Appellant, v. THE EIGHTH JUDICIAL DISTRICT COURT IN AND
FOR CLARK COUNTY, THE HONORABLE PAUL S. GOLDMAN, District Judge,
Respondents.
No. 16504
December 31, 1985 710 P.2d 1384
Appeal from older holding appellant in direct contempt of court and from the imposition
of a fine. Eighth Judicial District Court, Clark County, Paul S. Goldman, Judge.
The district court entered an order holding Office of Clark County District Attorney in
direct contempt of court and imposing fine. On appeal, the Supreme Court held that the
deputy district attorney's mere inability to advise the district court as to the status of the case
was insufficient to warrant a finding of contempt.
Reversed.
Robert J. Miller, District Attorney, and James Tufteland, Deputy District Attorney, Clark
The Honorable Paul S. Goldman, District Judge of the Eighth Judicial District Court,
Clark County, for Respondents.
Contempt.
Deputy district attorney's mere inability to advise district court as to whether state would be ready to try
case on previously set trial date, as a result of clerk's failure to send file of case assigned to major violators'
section of district attorney's office to court, did not warrant finding of contempt, where team deputy was
not disorderly, contemptuous or insolent, no breach of peace, boisterous conduct or violent disturbance
took place, team deputy did not disobey or resist any lawful writ, order, common rule or process, or abuse
process or proceeding of court, and there was no showing that anyone connected with office deliberately or
recklessly disregarded their duties with respect to court. NRS 22.010, 199.340.
OPINION
Per Curiam:
This is an appeal from an order of the district court holding appellant, the Office of the
Clark County District Attorney, in direct contempt of court and imposing a fine of $250.00
against that office. For the reasons set forth below, we reverse.
1
On February 27, 19S5,
calendar call was scheduled in the criminal case of State v. Shannon, No.
____________________

1
Appellant's opening brief in this appeal was filed on July 22, 1985. No answering brief has been filed on
behalf of respondents, however, and the
On February 27, 1985, calendar call was scheduled in the criminal case of State v.
Shannon, No. C68379. When the case was called, District Judge Goldman inquired whether
the parties were ready to go to trial on March 4, 1984, as scheduled.
2
The deputy district
attorney replied that the case was being handled by the major violators' section of the district
attorney's office, and that he assumed one of the attorneys from that section would be
appearing on the case. The deputy district attorney indicated he could not say whether the
case was ready to go to trial because he did not have the case file.
The deputy public defender told the court that the defense would probably not be ready to
go to trial because she had recently received information which might lead to exculpatory
evidence. Defense counsel indicated a two or three week continuance might be necessary.
Judge Goldman then addressed the defendant regarding the defendant's trial on other
charges, which had also been scheduled for the following week. Following this discussion,
Judge Goldman stated that he would not vacate the trial date. He added, I will find the
District Attorney to be in direct contempt of this Court and assess a fine in the amount of
$250.00. Additionally, he ordered the district attorney to appear on March 1, 1985, to show
cause why the case should not be dismissed.
At the hearing on the order to show cause, a deputy district attorney explained that this
case was assigned to the major violators' section of the district attorney's office, which
handles its own calendar. According to the deputy, if the major violators' section wants one
of the team deputies to make the appearance on a given case, the case file is sent over to
the court.
____________________
time for filing the brief has long since expired. NRAP 31(a). Cause appearing, this appeal shall stand submitted
on the opening brief and the record on appeal, without oral argument. NRAP 34(f)(1).

2
At the calendar call on February 27, 1985, the following exchange occurred:
THE COURT: C68379, State versus Willie Lee Shannon. . . . Is this ready to go?
MR. WOMMER: This case is being handled by the major violators' section of our office. I assume
Mr. Harmon or Mr. Seaton will be down today.
THE COURT: Well, this is fish our cut bait time. Ready to go or not?
MR. WOMMER: I don't have a file.
MS. BRASIER: Your Honor, it looks like we will not be ready to go. I received some information
just yesterday concerning the conduct of the victim in this crime, recent conduct, where she has called
relatives of the defendant offering to drop the case if he will give her certain things, and I think certainly
that could be exculpatory evidence at trial. I figure it would take about two to three weeks to be able to
get hersubpoena her phone bills and get the evidence we need.
THE COURT: Trick or treat time. What do you want to do, Mr. Shannon?
MS. BRASIER: He's got another trial scheduled for next week.
section wants one of the team deputies to make the appearance on a given case, the case file
is sent over to the court. The deputy stated that a clerk in the major violators' section
mistakenly failed to send the file to the court in this case. The team deputy who appeared
before the court at the calendar call had no knowledge of the status of the case, and was
therefore unable to answer the judge's questions. The deputy district attorney explained that
due to the large number of cases handled by the district attorney's office, inadvertent mistakes
sometimes occur. He pointed out, however, that there had not been any prejudice to the
defendant, since the defendant was not ready to proceed to trial.
At the conclusion of the hearing, Judge Goldman quashed the order to show cause, but
amended the contempt order, sua sponte, to indicate that the Office of the Clark County
District Attorney was being fined rather than the district attorney personally. This appeal
followed.
In the order of February 28, 1985, Judge Goldman held the district attorney in direct
contempt of court because the deputy district attorney was unable to announce to the court
whether or not the State would be ready to try this case on the previously set trial date for
March 4, 1985. Appellant contends that the conduct of the deputy district attorney cited by
the district court in the contempt order did not constitute a contemptuous act. We agree.
NRS 22.010 and NRS 199.340 list the acts or omissions which constitute contempts.
3
The actions of the team deputy before Judge Goldman did not fall within any of the acts or
omissions enumerated in NRS 22.010 or NRS 199.340.
____________________

3
NRS 22.010 Provides:
22.010. The following acts or omissions shall be deemed contempts:
1. Disorderly, contemptuous or insolent behavior toward the judge while he is holding court, or
engaged in his judicial duties at chambers, or toward masters or arbitrators while sitting on a reference or
arbitration, or other judicial proceeding.
2. A breach of the peace, boisterous conduct or violent disturbance in the presence of the court, or in
its immediate vicinity, tending to interrupt the due course of the trial or other judicial proceeding.
3. Disobedience or resistance to any lawful writ, order, rule or process issued by the court or judge at
chambers.
4. Disobedience of a subpena duly served, or refusing to be sworn or answer as a witness.
5. Rescuing any person or property in the custody of an officer by virtue of an order or process of
such court or judge at chambers.
6. Disobedience of the order or direction of the court made pending the trial of an action, in speaking
to or in the presence of a juror concerning an action in which the juror has been impaneled to determine,
or in any manner approaching or interfering with such juror with the intent to influence his verdict.
7. Abusing the process or proceedings of the court or falsely pretending to act under the authority of
an order or process of the court.
Judge Goldman did not fall within any of the acts or omissions enumerated in NRS 22.010 or
NRS 199.340. The team deputy was not disorderly, contemptuous or insolent. No breach of
the peace, boisterous conduct or violent disturbance took place. The team deputy did not
disobey or resist any lawful writ, order, rule or process issued by the court. He did not abuse
the process or proceedings of the court. There was no showing that anyone connected with
the Clark County District Attorney's Office deliberately or recklessly disregarded their duties
with respect to the court. An oversight occurred, but it did not disrupt the court or prejudice
the defendant. Under the circumstances here presented, the mere inability of the deputy to
advise the district court as to the status of the case was insufficient to warrant a finding of
contempt. See, e.g., In re Monroe, 532 F.2d 424 (5th Cir. 1976).
Accordingly, we reverse the order of the district court holding the Clark County District
Attorney's Office in contempt of court and imposing a fine of $250.00.
____________________
199.340. Every person who shall commit a contempt of court of any one of the following kinds shall
be guilty of a misdemeanor:
1. Disorderly, contemptuous or insolent behavior committed during the sitting of the court, in its
immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect
due to its authority;
2. Behavior of like character in the presence of a referee, while actually engaged in a trial or hearing
pursuant to an order of court, or in the presence of a jury while actually sitting in the trial of a cause or
upon an inquest or other proceeding authorized by law;
3. Breach of the peace, noise or other disturbance directly tending to interrupt the proceedings of a
court, jury or referee;
4. Willful disobedience to the lawful process or mandate of a court;
5. Resistance, willfully offered, to its lawful process or mandate;
6.
Contumaciousandunlawfulrefusaltobeswornasawitnessor,afterbeingsworn,toansweranylegalandproperinterrogatory;
7. Publication of a false or grossly inaccurate report of its proceedings; or
8. Assuming to be an attorney or officer of a court or acting as such without authority.
____________

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